Crenshaw v. Carpenter , 69 Ala. 572 ( 1881 )

SOMEEYILLE, J.

The widow of a deceased husbamd is authorized by our statutes, in all cases, to disserlt from his will, and, in lieu of the provision made for. her by such will, to take her dower in the lands, and such portion of the personal estate as ■she would have been entitled to in case of the husband’s intestacy. — Code, 1876, § 2292.. “Such dissent must be made in writing, and deposited within one year from the probate of the will with the judge of probate of the county in which the will is probated, and an entry made of record specifying the day on which the dissent was made. — Code, § 22¿8.

The question presented by the record is, whether the court can create a saving or exception in the statute, in favor of an insane widow, confined in a lunatic asylum of a distant State, where the legislature has failed to make such exception.

Whatever may be said favorable to the justice and humanity of such a provision, the rules of sound construction and the weight of authority are both opposed to the affirmative of the proposition. The subject is fully discussed in Scribner on Dower, and the following principle is deduced as the result of the adjudged cases:

“ Except where otherwise provided by law, the statutory right of election conferred upon the widow in cases of the character now under consideration, is regarded as a strictly personal right, and can not be exercised by another person in her behalf.

“ In the application of this rule, it has been held, that the incapacity of the widow to elect by reason of insanity, furnishes no sufficient cause for its relaxation.” — 2 Scribner on Dower, 469, 471.

The language of the statute, as observed by the Sujareme Court of Maryland in a similar case, “ is comprehensive enough to include every widow, whether sane or insane, and the act [statute] having no exception in favor of the latter, the courts can make none, whether they be courts of law or equity..... Where the law directs an act to be done, or a condition to be performed for the purpose of conferring a right, that right can not be acquired if the act is left undone, or the condition is not performed.” — Collins v. Carman, 5 Md. 503.

In Lewis v. Lewis, 7 Ired. (Law), 72, a testator died making uo provision by his will for his wife who was a lunatic, and it was decided that the committee having charge of her had no authority by law to enter a dissent in her behalf, and she could not by reason of her want of reason dissent herself. So, in Hinton v. Hinton, 6 Ired. (Law) 274, it was held, that a widow could not renounce her husband’s will by attorney, in view of the statutory requirement that she must do so in “open court.”

That the right of dissent in such cases is a personal one, capable of being exercised only by one possessing the requisite reason and judgment, seems fully sustained by authority. — 2 Scribner on Dower, 471; 2 Redf. on Wills, 367; Donald v. Portis, 42 Ala. 29; Welch v. Anderson, 28 Mo. 293. The legislature nowhere expressly confers on the courts the power to make such election for her in case of her disability to do so, but seems to have remitted the misfortunes of her condition to the presumed humanity of her husband, whose highest duty is to provide for her in a manner commensurate with her wants and his own financial ability.

And the courts possess just as little power to create a saving • or exception, taking insane persons out of the operation of the statute. It is enough to say, that the General Assembly has made no such exception arid we have no such power. The fact that lunatics are excepted from the operation of the statute of limitations in certain cases, and to a certain extent, is persuasive of the view that the failure to make a like exception here is not entirely unmeaning. — Code, 1876, § 3236; Demarest v. Wynkoop, 3 John. Ch. Rep. 138; Collins v. Carman, 5 Md. 503, 517; Yniestra v. Tarleton, 67 Ala. 128.

The will of the deceased husband, in this ease, was probated in September, 1862. At the time of his death the widow was insane, and has continued to be so ever since. Her condition, mental and physical, was such that she was incapable of entering such a dissent from the will as the statute requires, and no one is authorized by law to act in her behalf. The chancellor so ruled, in effect, by sustaining the demurrer and dismissing the bill, and we see no error in his rulings. If the case be one strongly appealing for a remedy, it must, be afforded by the legislative department, as has been done in many of our sister States. The courts are powerless to enact laws. They can only enforce them as they are already enacted.

Whether the Chancery Court, on a bill filed within proper time, possesses the power to make an election for an insane widow in cases like this, we do not now decide.