Garrett v. Vaughn , 59 S.C. 516 ( 1901 )

March 19, 1901. The opinion of the Court was delivered by The appeal herein is from an order of the Circuit Court affirming an order of the probate court, by which it was adjudged that the petitioner was entitled to dower in the lands of which her husband died seized and possessed. The facts are fully set out in the order of the Circuit Court, which will be incorporated in the report of the case.

As said by the appellants' attorney, the only question in the case is whether or not the testator intended the provision he made for his widow in his will to be in lieu and bar of her dower. The reasoning of his Honor, the Circuit Judge, and the authorities cited by him, especially the case of Hiers v. Gooding, 43 S.C. 428, so fully sustain his conclusion that we will only add a few words to what he has said. In the first clause of his will the testator directed his executrices to rent his real estate annually, and after making certain expenditures, to divide the proceeds between his wife and his two daughters, in the proportion of one-half to his wife and one-fourth to each of his daughters during his wife's lifetime. In the second clause he directed that upon the death of his wife, the whole of his real and personal estate should be equally divided between his said daughters. The following general principles may be regarded as settled beyond dispute: 1. The presumption is that the provision made by the husband in his will for his wife was not intended to be in bar and lieu of dower. 2. In order to have the effect of forcing the wife to elect whether she will take dower or under the will, the intention of the testator must so appear by the express terms of the will, or must arise by necessary implication in view of all the surrounding circumstances. 3. Where the only effect of allowing the claim of dower is to reduce the value of the devises, the widow should not be put to her election, for that happens in every case where dower is allowed. 4. The test is whether the provision in the will and the claim of dower are so manifestly repugnant that they cannot stand together. The only effect of allowing the claim of dower in this case is to reduce the number of acres which were to be rented annually by his executrices, and out of the proceeds of which they were to receive a proportionate share during the lifetime of the widow. This would not interfere with the scheme of the will any further than might naturally be expected in any case where dower is allowed, nor do we see any repugnancy between the provisions of the will and the claim of dower other than must necessarily arise in every case giving rise to the question.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.