Spinning v. Spinning , 43 N.J. Eq. 215 ( 1887 )

The opinion of the court was delivered by

Soudder, J.

The single question presented for our determination is whether the respondent, in stating her account of rents received, and expenditures for the three houses, shall be credited with the taxes, proportion of interest and repairs of the dwelling-house occupied by her since the death of her husband. As widow, she is entitled to dower in all of these lands, of which her husband died seized, and the value of that dower right will be paid to her from the proceeds of the sale of the premises in these proceedings. But, as her dower was not assigned to her, it was, by the statute, lawful for her to remain in and to hold and enjoy the mansion-house of her husband, without being liable to pay any rent for the same, until such dower be assigned to her.

The derivation of this statute from the widow’s quarantine, by the law of England, has been recognized in every construction and application that has been given to it and like statutes. It is important to notice this historic derivation of our law in determining the kind of interest which the widow has in the mansion-house of her husband before the assignment of her dower. As, at the death of the ancestor, the descent of land was east on his heir, it was needful that some immediate provision should be made for his widow’s shelter and support before her dower was assigned. Co. Litt. SB, says: “Some have said that by the ancient law of England the woman should continue a whole year in her husband’s house, within which time, if dower were not assigned, she might recover it, and this was certainly the law of England before the Conquest. By the statute of Magna Charta (chapter 7) she shall tarry in the chief house of her husband but by the space of forty days after the death of her husband, within which time the dower shall be assigned unto her.” See Bac. Abr. tit. “Dower ” (b); Jac. Law Dic. “ Quarantine;” 4. Kent Com. 61; 2 Scrib. on Dower 49; 1 Washb. on Real Prop. 186, 189, 271, 272.

This provision of quarantine for the widow in her emergency was carefully distinguished from her right of dower before it was assigned to her, and when the assignment had been made her estate in dower related to the date of her husband’s death, as a continuance of his estate in the lands. The widow’s quarantine is called, in the books above cited, “a privilege,” “a benefit,” “a right,” but not a freehold estate in land. The interest given to her was temporary and fugitive in its purpose, and not designed for continuance beyond a brief time, and as a means of constraining the heir to assign her dower without unreasonable delay. But it is said that our statute, passed January 31st, 1779, drawn by Mr. Paterson, a most active and thorough lawyer, manifests a different intention, and confers on the widow a higher title in the mansion-house of her husband than a mere quarantine right. This is shown, it is claimed, by the change of time from the exact term of forty days to the indefinite period “ until such dower be assigned to her,” and by the addition of the words “to hold and enjoy” to the word “maneat”(to remain in), found in the original charter or law. But as by the old law the widow was required to quit the possession of the chief house if her dower was not assigned in forty days, and there was a question whether she was entitled during quarantine to have her reasonable estovers and subsistence out of the estate, as appears in Co. on Litt. 38, it may well be said that the change in the statute was to make a more liberal and certain allowance for her comfort and support without altering the nature of her interest. In addition to the mere right of remaining in the mansion-house and messuage or plantation thereto belonging, she was also given, by our statute, the greater benefit of holding and enjoying the premises and the profits without payment of .rent to the heir and until her dower was assigned her. This was intended to be a more generous extension of her privilege of quarantine. It is also noticeable that in 1797, two years before the passage of our statute, the right of the heir to dispossess the widow by ejectment before dower was assigned had been discussed in Den v. Dodd, 1 Hal. 367. This statute, following so soon after this case, confirmed her possession in the homestead until the assignment of dower, and made that certain which before was considered doubtful. As this law gives the possession and profits of lands for an uncertain period, which may continue for the life of the widow, it is argued that it confers an estate for life; and if an estate for life is granted, then the widow, like other tenants of life estates, must pay taxes, keep down encumbrances, and make reasonable repairs until the term be ended. There are cases in our own courts which give countenance to this inference by expressions used descriptive of this act. Ackerman v. Shelp, 3 Hal. 125; Budd v. Hiler, 3 Dutch. 43; Craige v. Morris, 10 C. E. Gr. 467. It cannot be denied that, as thus defined, the right of the widow under our statute has some of the incidents of a freehold estate for life; but it is equally certain that it has also some features of an estate at will, though it arises by operation of law, and not by lease, by contract or by the act of the parties, for it may be ended at any time by the release of her dower by the widow, or at the will of either party by application to the orphans court for the assignment of dower (Rev. p. 383 § 17), or by the act of the heir or devisee in making such assignment, or she may give up the possession voluntarily at any time and thereby end her quarantine, as in Smallwood v. Bilderback, 1 Harr. 497—506.

It is difficult and often misleading to attempt to define statutory rights by terms of the law applicable to other conditions and conformed to rules of the common law, and some confusion has been caused in thus attempting to construe this statute and like statutes in other states. It is better to make the statute its own interpreter, and to construe it according to the ordinary rules of construction. The vice-chancellor, in his opinion in this case, says that the right given to the widow under our statute is not a life estate, but may bo accurately described as a privilege in the nature of a tenaucy at will. In McLaughlin v. McLaughlin, 7 C. E. Gr. 505, 510, the chief-justice says that “ it is but an amplification of the provision of Magna Charta, beneficially extending the term of the widow and expressly declaring that she shall hold the premises free of rent.” Vice-Chancellor Dodd, in Bleecker v. Hennion, 8 C. E. Gr. 123, 125, says: “The widow’s possession or quarantine is an incident only to her dower, belonging to that right and inseparable from it. It is a privilege preceding but in no wise preventing or impeding the assignment or disposal of dower.” In neither case is an attempt made to define the act by any terms known in the law, but to construe and apply its words according to their evident intention to the facts in hand. "Was it then the intention of the legislature, as expressed in this act, that the widow, during her possession, before the assignment of dower, should pay taxes, keep down encumbrances and make repairs of the house of her husband ? The statute puts no such burden upon her; it says she is not liable to pay any rent; the old law gave her a quarantine without charge, and if her home be all that is left to her, to pay taxes, keep down encumbrances and make repairs during her uncertain term, might be a loss instead of a benefit to her and thwart the very purpose of the act. If her possession be continued for years, as in this case, and is profitable to her, such is not the design of the act, and it should be left to some arrangement with the heir or devisee, who has it in his power, at any time, to assign her dower, or to further legislation. In Cronley v. Cronley, 13 Stew. Eq. 30, the chancellor held that the possession of the widow, under this statute, did not devolve on her the duty of paying the interest upon a mortgage, and this judgment is now approved as a proper construction of the statute which does not burden her with the discharge of liens on the land while she has but a temporary possession awaiting the assignment of her dower. The ease of Houston v. Houston, 13 Stew. Eq. 146, is distinguishable, as continued possession was not held by the widow. Holcombe v. Holcombe, 13 C. E. Gr. 473, S. C., 2 Stew. Eq. 597, requiring the life tenant of a fund in the hands of executors to pay the annual taxes assessed thereon, is applicable to a tenant for life of land, and therefore to a tenant in dower, but • does not control the present case, where the dower has never been assigned. The different views that have been taken by courts of other states having like statutes, have been examined, and may be seen by reference to Strawn v. Strawn, 50 Ill. 256; Wheeler v. Dawson, 63 Ill. 54; Burk v. Osborn, 9 B. Mon. 579; Shelton v. Carrol, 16 Ala. 148; Conger v. Atwood, 28 Ohio St. 137; Moore v. White, 61 Mo. 442; Branson v. Yancy, 1 Dev. Eq. 77; Simmes v. Lyle, 33 Gratt. 752. The last-named case, decided in 1880, has a very able and instructive opinion of the court, reaching substantially the same conclusion which has been above expressed.

The maxim “Qui sentit commodum sentiré debet et onus” which has been sometimes quoted in this connection, is not applicable to cases which are regulated by statute law, and has therefore no efficiency in the present case, where the widow’s right is purely statutory and limited.

What has been said has reference to taxes, mortgage interest and repairs, which are clearly liens and charges on the real estate; the water rates are part of the personal expenses of the occupant of the mansion-house and should be charged against her; but as the case does not show that any water rates are due or are made on account of this house occupied by the widow, separate from the others, the decree should not, for this cause,, be changed.

The decree will be affirmed, with costs.

Decree unanimously affirmed.