McGhee v. Stephens , 83 Ala. 466 ( 1887 )

CLOPTON, J.

The only question argued by counsel is, whether a widow, whose husband has died testate, can claim a distributive share of his ■ personal estate, without dissenting from his will, in the manner, and within the time prescribed by sections 2292 and 2293 of the Code, when the will makes no provision whatever for her. Section 2292 provides: “ The widow may, in all cases, dissent from the will of her deceased husband, and, in the place of the’ provision made for ber by such will, take ber dower in tbe lands, and of tbe personal estate such portion as sbe would have been entitled to in case of intestacy.” Section 2293 requires tbe dissent to be made in writing, and filed with tbe judge of probate within one year from tbe probate of tbe will. Tbis character of legislation bad its origin in tbe act of 1812, which is founded on tbe policy of requiring tbe widow to elect, in a reasonable time, between tbe provision wbicb tbe law makes for ber, and tbe provision of tbe will, in order tbat there may be a speedy settlement and distribution of the decedent’s estate.

Tbe first section of tbe act of 1812 provided: “ When any person shall die intestate, and shall make bis last will and testament, and not therein make provision for bis wife, by giving and devising unto ber such part or parcel of bis real and personal estate as shall be fully satisfactory to ber, such widow may signify ber dissent thereto in the Circuit or County Court in tbe county wherein sbe resides, at any time within one year after tbe probate of such will, and then and in tbat case she shall be entitled to dower.” — Clay’s Dig. 172. The construction of tbe act, as settled by several decisions of. tbis court, was, tbat where no provision is made for tbe wife by tbe will of ber husband, it was not necessary for her to dissent from such will, in order to avail herself of tbe provision wbicb the law makes in her favor.—Green v. Green, 7 Porter, 19; Hilliard v. Binford, 10 Ala. 977; Turner v. Cole, 24 Ala. 304. This construction was rested on tbe doctrine, tbat tbe right to dower is a common-law right, wbicb attaches at tbe instant of marriage, and can not be impaired except by statute; and tbat an election is not required, unless there be alternatives, as to wbicb a choice may be exercised. It will be observed, that tbe statute only provides, in case of dissent, tbat tbe widow shall be entitled to dower; no provision being made by tbis section entitling her to a share of tbe personal estate. Her right to receive a portion of tbe personalty is provided by another section of tbe act, wbicb will be noticed hereafter.

Tbe first section of tbis act, in somewhat different phraseology, and with modifications, some of wbicb are material, was introduced by the codifiers into tbe Code of 1852, as sections 1609 and 1610, wbicb have been incorporated in each succeeding Code, and constitute sections 2292-3 of Code of 1876; but without material change in respect to tbe necessity of a dissent when no provision is made for tbe wife in the will. The expression, “or shall make his last will and testament, and not therein make any express provision for his wife, by giving and devising snch part or parcel of his real and personal estate as shall be fully satisfactory to her,” is omitted, and in lieu thereof is inserted the phrase, “in the place of the provision made for her by such will.” Section 2292 contemplates an election — that some provision shall be made for her in the will, from which she may dissent, and take in preference what the law would give her. The section does not operate to impair or abolish the rule, that a devise or bequest in favor of the wife will not bar her right to dower, unless expressly so declared, or by necessary implication is intended to be in lieu of dower, in which case the widow, independent of statute, would be put to her election. The statute was intended to provide for a speedy and summary election, when any provision is made for her in the will, which does not appear to have been as an addition to dower; and in such case, her failure to dissent within one year from the probate of the will bars her right of dower.—Adams v. Adams, 39 Ala. 274. But, when she can take nothing by the will, no election is required, and a dissent is not necessary to entitle her to dower in the lands of her deceased husband. In such case, her common-law right is unimpaired.

A different rule prevails as to her right to take such portion of the personal estate, as she would be entitled to in case of intestacy. By the second section of the act of 1812, it was provided: “Where a husband dies intestate, or shall make his last will and testament, and not make provision therein for his wife, as expressed in the first section of this act, she shall be entitled to share in the personal estate,” in specified proportions, dependent upon the number of children. The effect of this statutory provision was to abolish the common-law right of the husband to arbitrarily dispose of his personal estate by will, and defeat the claims of his widow, operating to make her right to a share of his personalty, in case no express provision was made for her, the same as in case of intestacy. When the widow dissented, in the manner and time required by the first section of the act, any provision made for her was regarded as stricken from the will, leaving it to have the same effect as if no provision had been made for her. On this construction of the act, the widow, when she dissented, was held entitled, not only to her dower, but also to her share of the personal estate, as i£ her husband had died intestate; not merely by the provisions of the first section, but under the second section, as an incident and a consequence of her dissent from the will. Section 1521 of Code of 1852, which is the same as section 2261 of the Code of 1876, provides, that the widow shall be entitled to share in the distribution of the personal estate of her husband, only in case he dies intestate; thus repealing, pro tanto, the second section of the act of 1812, by omitting the words, “or shall make his last will and testament, and not make provision therein for his wife.” The effect is to revive the common-law right of the husband to dispose of his personal estate. Notwithstanding this, section 2292 of Code of 1876, by enlarging the privilege of dissenting, and extending it to “all casos,” confers on the widow the power to obstruct the arbitrary disposition of the personalty, which may be deemed unjust. Though no provision whatever is made for her in the will, she may dissent therefrom, and take such portion of the personal estate as she would be entitled to in case of intestacy. While the first section of the act of 1812 only entitled the widow, in case of dissent, to take her dower, section 2292 entitles her to take both — her dower in the land, and the portion of the personal estate to which she would be entitled, if her husband had died intestate. There is no other statutory provision by which the widow becomes entitled to a distributive share of her husband’s personal estate, when he dies testate, making no provision for her in the will. It follows from a consideration and comparison of the several statutes relating to this subject, and from the alterations of the act of 1812 made by the Code, that in such case a dissent from the will is necessary to entitle the widow to share in the personal estate of her husband as in case of intestacy. The distinction as to the right of the widow to dower, and to a portion of the personal estate, is founded on the principle, that an affirmative statute is requisite to bar the widow’s right to dower, without her agreement or consent, and equally requisite to impair the husband’s right to defeat her claim upon his personal estate, by testamentary disposition, without making provision for her.

Affirmed.