Wall v. Dickens , 66 Miss. 655 ( 1889 )

Campbell, J.,

delivered the opinion of the court.

The only question for decision in this case is, whether under the code of 1871, §§ 1281, 1282, as amended by, “An act, etc.,” approved April 15, 1876, § 54 and § 55, session acts, pp. 193, 194, the widow of a testator, who made but a partial disposition of his estate, and therefore died intestate, as to part of it, and left surviving him neither child nor descendant of a child, by failing to renounce the provisions of the will, which gave her both real and personal estate, thereby lost her right as the sole heir of her deceased husband to inherit that part of his estate as to which he died intestate. By § 1952 of that code it is declared that, “All such estate, both real and personal, as is not devised or bequeathed in the last will and testament of any person shall descend and be distributed in the same manner as the estate of an intestate.”

By § 1788, it is provided, “ If a husband dies intestate, leaving no children nor descendants of children, his widow shall be entitled to his entire estate, real and personal in fee simple, etc.”

From these provisions the conclusion would be irresistible that the widow, in the case stated, being the sole heir of her husband, would inherit “ all such estate * * * as is not devised or bequeathed in the last will and testament,” were it not for §§ 1286, 1287 and 1288 of the code of 1871, which, it is argued, barred her right to the real and personal estate not devised or bequeathed. Section 1286 establishes the rule that a devise or bequest to the wife of the testator “ shall be construed to be intended in bar of her dower in land or share of the personal estate, respectively, unless it be otherwise expressed in the will.” Section 1287 regulates the manner of renunciation by a widow of a devise or bequest, so as to secure her right of dower in land and her share in personal estate; and § 1288 completes the provision for the operation of wills in such cases, by declaring, “ If the will of the husbaud devise a part of both real and personal estate, the widow shall renounce the whole or be otherwise barred of her right to both, etc., * * *: provided, that if the devise of the real or personal estate or both, shall be expressly in lieu of her legal share, in one or in both, she shall accordingly be barred, unless she renounce, as aforesaid, but if in effect nothing shall pass by such devise, she shall not be thereby barred, whether she shall or shall not renounce, as aforesaid, it being the intent of this act and consonant to justice, that a widow accepting or abiding by a devise in lieu of her legal right, shall be considered as a purchaser for a fair consideration.”

If none of these sections had existed the right of the widow, as the sole heir, to inherit the estate of her husband not disposed of by his will, would be clear, for the established doctrine was that the heir should have the estate of his ancestor, if the ancestor had not given it to some one else, and § 1952, cited above, so declares.

Sections 1286, 1287, and 1288 above, do not apply to the ease of a widow who is the sole heir of her deceased husband, because such a widow had no “ dower in land ” or “ share of the personal estate,” but was entitled to all the land and personalty of her deceased husband. “ Dówer in land,” in the sense there used, means a partial interest as regulated by the code, and “ share of the personal estate” implies division with others; having only a portion ; enjoying with others, which is not applicable to a widow in the case stated, and this shows that the language embraces only the cases where the widow is a co-heir, when it would have meaning and full force.

Learned counsel have earnestly invoked the special consideration of the concluding part of § 1288, cited, in the words: “it being the intent of this act and consonant to justice, that a widow accepting or abiding by a devise in lieu of her legal right shall be considered as a purchaser for a fair consideration.”

This does not in any degree conflict with the view we have taken of the application and operation of the sections mentioned. Its sole effect is to declare the equitable rule that acceptance by the widow of the provision made for her by the will shall be regarded as an exchange by her of her dower in land or share of the personal estate, and, if she shall not get what she exchanged her legal rights for, she shall not be bound, and may “ rue the bargain,” and it does not enlarge the scope of the language preceding it'. Indeed the term “purchaser” suggests others than the widow, having conflicting rights from whom she is a purchaser, and strengthens our view, that the necessity for renunciation by the widow exists only in case of conflicting interests, and where she alone is heir she need not renounce because there is no occasion for it.

The same view was taken by the supreme court of Indiana under statutes substantially the same as ours. Armstrong v. Berreman, 13 Ind. 422.

Any other construction of our statutes seems to us unmaintainable. It is certainly true that where one dies the owner of lands or goods not disposed of by will, he dies intestate as to them, and the law casts descent upon his heir, -and when the widow is the heir, the same result must occur, whether the intestacy be partial or entire.

The rule as to a provision by will for the widow, and its acceptance being in lieu of dower or share of personalty, was made for the ordinary case of the widow being one of several heirs in the same degree, who is not to be allowed to defeat the arrangement made by taking under the will, and under the law, and is put .to her election, but where all is hers and there are no conflicting rights and there is none to contest with her the heirship to her husband, the statute has no application.

Affirmed.