Watterson's Appeal ( 1880 )

Mr. Justice Gordon

delivered the opinion of the court,

Though a widow’s statutory interest in the lands of her deceased husband, under the Act of 1833, comes not within the definition of common-law dower, it is, nevertheless, an estate of freehold: Schell’s Appeal, 4 Wright 170; Gourley v. Kinley, 16 P. F. Smith 270; Bachman v. Chrisman, 11 Harris 162. Moreover, this interest, vesting as it does in her at the instant of her husband's death, can only be divested by her own act, as by accepting under her husband’s will, or by her deed or writing, as prescribed by the Statute of Frauds and Perjuries. Mrs. Bridget Maloney, immediately on the death of William Maloney, her husband, had vested in her an estate for life in the one-third of the realty of which he died seised, which, in due course of law, passed to the assignee in bankruptcy of the firm of Mullin & Maloney, of which firm she was a member, unless previously to the bankruptcy of that company she had, by some means, been divested of that estate.But this effect could not be produced by her oral declarations to Mr. Fetterman and others, that she had no interest in her husband’s estate, and that she desired the whole of it to go to her children. The Statute of Frauds and Perjuries rendered such declarations of no account whatever. Unless, therefore, her estate was barred by her acceptance under the will of her husband, that estate remains intact, and has passed to her assignee.

Now, it is hardly worth our while to examine authorities as to the effect of the acceptance, by a widow, of a testamentary provision in her favor upon her dower, for all that is definitely settled by our'Act of Assembly. If Mrs. Maloney did accept under the will of William Maloney, whether in writing or parol, or whether that will gave her little or much, the appellant has made out his case, and he must have a reversal of the decree of the court below.

Thus the case turns upon a question of fact, and about the law bearing upon it there is, or ought to be, no controversy.

Let us, then, consider the provisions of the will and her action upon them. The eighth item provides as follows: “ Whereas, I have a policy on my life in the Ætna Life Insurance Company, of Hartford, Connecticut, No. 47,986, for the sum of ten thousand dollars, for the benefit of my wife, Bridget Maloney, and, whereas, it is my desire that the same should be considered as part of my estate, and follow the directions hereinafter, in item ninth, provided for my residuary estate, I hereby direct my. executors, with the consent of my wife, to invest the amount of said life insurance, when collected, in good productive real estate fór the benefit of my family, the same to follow the dispositions hereinafter provided in item ninth for my residuary estate. But in the event of my wife refusing to consent to said investment and disposition thereof, and requiring the whole insurance money to be set apart for her sole and separate use and benefit, then and in such case, I hereby will and direct that she take under this will nothing but the said sum of ten thousand dollars insurance money, and that all the devises and bequests to her under this will be null and void and of no effect.”

It will be observed that whether the policy above mentioned, and which belonged to Mrs. Maloney, should become the subject of the devise or not depended upon her assent. If she refused to agree to his wishes, the policy dropped out of the will, since of himself he had no power to make it the subject of devise.

She did refuse to have her own property thus disposed of, and by this refusal she was as effectually put out of the will as though she had never been mentioned in it, or as though she had formally refused to accept under it.

What, then, did she take by virtue of the will ? ’ For in order to bar her dower she must have received something by force of that instrument. “I hereby direct,” says the testator, “that she take under this will nothing but the said sum of ten thousand dollars insurance money.”

This, however, confessedly, she took not by virtue of the will, but by virtue of her own right. He certainly could not give to her what he had not to give. In fact he made no such attempt. He but provided that should she allow.her property to come into his will, she should have the - benefit of certain devises which included that property, but if she would not so agree, ,she was to be wholly excluded from the provisions of that instrument, and left to her legal rights.

It is, then, as we have already said, manifest that she took nothing under the will by which her dower could be barred. What she got was her own property, and this she would have had had the will never been written. It is therefore idle to say that, by keeping her own property, she elected herself out of her dower.

The doctrine of election would have applied had she chosen to take under the will; for, by that act, she would have at once surrendered her right both to the life policy and to dower, but there could be no such effect when she refused to accept the devise in her favor. It would, indeed, be monstrous if a husband could thus devise a wife out of her dower, and that in spite of her legal right of election. As in the present case, a husband devises to his wife her own property, and, as to her, it is all loss and no gain; if she accepts her dower is gone, but if she refuses to accept, and elects to retain her own property, she also loses her dower. This will not do; a devise of this kind has not even the recommendation of ingenuity; it is a mere fraud on the rights of married women, and a gross perversion of the laws provided for their protection.

Decree affirmed, appeal dismissed, and it is ordered that the costs be paid by the appellant.

Chief Justice Sharswood dissented.