Sanders v. Wallace , 118 Ala. 418 ( 1897 )

HARALSON, J.

The only question raised by the record in this cause is as stated by counsel, whether or not a AvidoAV, Avho has been provided for by the will of her husband, and who has failed to dissent therefrom within eighteen months, is entitled to dower in lands of which her husband was seized during coverture, and which had been sold under execution against him in his lifetime, and purchased by strangers, to whom the wife and widow of the deceased has made no conveyance or release of dower. The pleas in the cause, filed by each defendant separately, aver in substance, that the 'husband of apjiellant died in Perry county, Alabama, on the 10th of August, 1893; that at the time of his death he was seized and possessed of -property, both real and personal in said county; that before his death, to-wit, on the 16th July, 1890, he made and published his last will and testament, which was duly admitted to probate in said .county, on the 14th of December, 1893; that the said will made provision for the maintenance and support of complainant, and that said complainant never did within eighteen months after the probate of the will of the said Green B. Sanders (the husband of complainant), or at any other time, make any dissent in writing from the will of said Green B. Sanders; but, on the contrary, said complainant accepted the provisions made for her in said will.

The bill shows, that in the year 1862, at a regular term of the circuit court of said county of Perry, a judgment was rendered against complainant’s husband, said Green B. Sanders, for $6,380.05, on which judgment execution issued, and that the lands in which dower is sought and which are described in the bill, having been levied on, were sold for the satisfaction of said judgment by the sheriff, at execution sale, to the plaintiff in .said execution, for $6,924.00, to whom the sheriff executed his conveyances, and. returned the execution satisfied in full; that the purchasers took possession of the lands so purchased by them, and afterwards, in the lifetime of said Green B. Sanders, the defendants, Thos. M. Wallace and Thos. W. Williams, came into possession of different portions of said land, as described in the bill.

Exceptions were filed to the pleas, questioning their sufficiency as a defense, which were overruled, the court holding that each plea was sufficient, if proved, and presented a complete defense to complainant’s bill. To revérse this decree, the appeal is prosecuted.

Dower in this State is defined to be, “an estate for life of the widow in certain portions of the following real estate of her husband, to which she has not relinquished her right during the marriage: (1) Of all lands of which the husband ivas seized in fee during the marriage,” etc., etc.

Sections 1910 and 1911 make provision for the allotment by the probate or chancery court, of doAver to a AA’idoAV in lands Avliich have been aliened by the husband, according to tin conditions specified in said sections.

Sections 2354 and 2355 have reference to cases, Avliere a Avoman avIio sundres her husband has a separate estate; the effect of such separate estate on her dower interest and distributive share in her husband’s estate, in diminution of her doAver interest and distributive share therein, and the rule for the ascertainment of the alloAcance to be made her, according to the value of her separate estate. These last sections have no particular reference to the case in hand, since it is not shown that Mrs. Sanders had any separate estate, nor do the first named sections, except as a rule for the assignment of dower, if complainant be decreed to be entitled thereto.

In case of the intestacy of a husband, the foregoing sections apply, as they have been construed, and not of difficult application. But where he dies testate, leaving a widoAV, and making provisions for her in his aau.11, section 1963 is intended to apply, and provides: “The AvidoAV may, in all cases, dissent from the will of her deceased husband, and, in lieu of the provisions made for her by such will, take her dower in the lands, and such portions of the personal estate as she would have been entitled to in case of intestacy.”

The succeeding section, 1964, proAddes: “Such dissent must be made in writing, and deposited within eighteen months from the probate of the bill, with the judge of probate of the county in which the will is probated; and an entry must be made of record, specifying tlie date on which the dissent AA'as made.”

These two sections are the same in substance as sections 1609 and 1610 of the Code of 1852, and are carried into each of the Codes subsequent thereto, except that the period of limitation for filing a dissent to the will by a widow, has been changed from 12 to 18 months. These sections do not change and were not intended to ’.change the substantial provisions of the acts of 1806 and 1812 on the same subject, and the same rule as existed before, must be regarded as continued by the subsequent Codes, as Aims held in Adams v. Adams. 39 Ala. 274.

At common laAV a deAfise was presumed to be in addition to doAver unless the reverse clearly appeared in the will; a rule resting on the doctrine, that the right to doAver is a common laAV right, which attached at the time of marriage, and which cannot be impaired except by statute. But, the acts of 1806 and 1812, the same in substance as said sections 1963 and 1964, AArhich latter sections, as stated, are but a continuation of the proAdsions of the former statutes on the subject, reverse the rule of the common laAV, — AAdiich presumes a devise to be in addition to dower, unless the reverse clearly appears; and the rule under said sections as now definitely settled in this court, is that “Avliere the will of a deceased husband makes any proAdsion for his wife by a bequest to her of any part of his personality, or by a devise to her of any part of his realty, and the provision does not plainly appear from the will to 'have been intended in addition to her dower, her failure to signify her dissent from the will, within one year (now eighteen months) after its probate, is a bar to her right of dower.”- — Vaughan v. Vaughan, 30 Ala. 329; Hilliard v. Binford, 10 Ala. 977; Adams v. Adams, 39 Ala. supra; Dean v. Hart, 62 Ala. 308; McGhee v. Stephens, 83 Ala. 466. In the case last cited, it Avas held, that an election is not required unless there be alternatives as to which a choice may be made by the widow, and that section 2292 (now section 1963 of the Code of 1886) contemplates an election,— that some provision shall be made for her in the will, from which she may dissent, and take, in preference, !o Avhat the law would give her. It Avas there said: “The section does not operate to impair or abolish the rule, that a devise or bequest in favor of the wife Avill 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 ivas 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 in addition to dower ; and in such case, her failure to dissent within one year (the period of limitation then fixed) from the probate of the will, bars her right of dower.”

The question recurs: To what lands does this rule as to the failure of the widow to dissent from the provisions made for her in a will, apply? The will of Mr. Zanders makes provision for his widow after his death. There is an absence of any expression, in the will, that ihese provisions were intended by the testator to be in addition to dower, or from which such an inference can be drawn.

The first provision of said section 3963 is that the widow by dissenting, “may in all cases’3 “in lieu of the provisions made for her by such will, take her dower in the lands.” What lands? Certainly the lands of her husband, such as she would have been entitled to in case of intestacy. What lands were these? Those referred to in section 1892 quoted above, which defines her dower, and of what lands the widow is dowable, viz., "'“Of all lands of which the husband was seized in fee during the marriage.” If dissenting she would be dowable of all lands as in case of intestacy, it would seem to follow, that, failing such dissent she would be barred of dower in the same lands.

The latter part of this section of the Code makes provision — in addition for the one for dower — for her share of personal estate in case of dissent, in these words: “and such portion of the personal estate, as she would have been entitled to in case of intestacy.” This provision of said section, in case the widow fails to dissent, restores, in such case, the common law rule, which allowed the husband to dispose of his personality absolutely, and the widow takes under the will, in lieu of what she v-ould take under the statute as in case of intestacy, by dissenting. — McGhee v. Stephens, supra. This was the purpose of the insertion of this latter clause of said section 1963, and it is of no controlling effect on the first part of the same, in respect to dower. We are of opinion, that the widow by her failure to dissent from the provisions of her husband’s will, in the Lime and manner required by the statute, is barred of .her right of dower in her husband’s lands, such as he owned at the date of his death, as well as that described in the bill, which had been sold under execution in his lifetime.

There has been some disagreement in the decisions of courts on this question, in construction of statutes close akin to ours. In Corey v. Lamb. 45 Ohio St. 203, under statutes not materially differing from ours as to the effect of a dissent, or a failure to express it, the Supreme Court of that State, after a review of the cases from other courts, held that a widow electing to take the provisions made for her in the will of her husband, where it did not appear by the will that she should have such provisions in addition to dower, was barred of dower in land of which he was seized during coverture, and Avhich had been sold and conveyed in his lifetime on foreclosure of a mortgage executed by him in which the wife did not join. The court said: “The term dower is not of obscure and uncertain meaning. It is unambiguous, and has a fixed, definite and legal signification. It is a right which attaches not merely to the lands of which the husband dies seized, but to all the lands whereof he was seized, either in deed or in law. — Litt., Sec. 36; 4 Kent’s Com. 35. If to be endowed of the lands of her husband, or have dower in his lands, applies to all lands whereof the husband was seized as an estate of inheritance at any time during the intermarriage, the language of section 5964, ‘she shall be barred of her dower’ upon electing to take under the will should have no less extended application, aud cannot be confined to the property devised in the will. The meaning of dower is not so elastic as to embrace one thing when the widow would be endowed according to law, and another thing when she is to be barred of dower by accepting the provisions of the will.” As sustaining the conclusions reached, the court cited Steele v. Fisher, 1 Edw. Ch. 435; Palmer v. Voorhis, 35 Barb. 479; Evans v. Pierson, 9 Rich. (S. C.) 9; Avant v. Robertson, 2 McMull (S. C.) 215; Haynie v. Dickens, 68 Ill. 267; Buffinton v. Fall R. Nat. Bank, 113 Mass. 246. To these may be added, Nelson v. Brown, 144 N. Y. 384; Warren v. Warren, 148 Ill. 642; Allen v. Pray, 12 Me. 138; Hornsey v. Casey, 21 Mo. 545; Raines v. Corbin, 24 Ga. 185; In re Gotzian, 34 Minn. 159; Spalding v. Hershfield, 39 Pac. Rep. (Mont.) 88.

In apparent variance with these are the cases of Borland v. Nichols, 12 Pa. St. 38; Leinaweaver v. Stoever, 1 Watts & Serg. 165; Westbrook v. Vanderburgh, 36 Mich. 30; Higginbotham v. Cornwell, 8 Gratt. 83.

There is nothing in the phraseology of said section 1963, which limits its application to lands held at the decease of the testator, but when fairly construed, it .embraces all lands of which the husband was seized at any time during the coverture. This, as the Montana court in the case cited above said, is certainly in accordance with the great Aveiglit- of authority. There is nothing in Jackson v. Isbell, 109 Ala. 100, Avhic'h conflicts AA’itli AA’liat is 'here said. That decision had reference to doAver as affected by separate estate of the avícIoav under sections 2354 and 2355 of the Code.

Affirmed.