Matthews v. Clark , 105 S.C. 13 ( 1916 )

June 30, 1916. The opinion of the Court was delivered by The appellant says:

"Geo. C. Clark died on the ____ day of November, 1910, leaving of force a will, which was thereafter duly admitted to probate, wherein he undertook to dispose of his estate, both personal and real, to his widow, Corrie Clark, the appellant herein, and to his children by a predeceased wife.

"The issues raised in this case are: (a) Is the widow of the said George C. Clark, deceased, entitled both to the legacy left her in the will and to her estate of dower in the real property of her deceased husband? (b) Did she, by accepting the legacy given her and receipting therefor, waive her right to claim dower?"

Mr. Clark's will provided in item 2:

"I will that my wife, Corrie Clark, be paid the sum of three thousand dollars, $3,000.00, as her full and entire share of all my personal and real estate out of the funds provided for below."

The testator then sets aside his house and four acres in Leesville for his children and directs a sale of his land.

"Item 5. It is my will and desire that my wife shall receive three thousand dollars as her full and entire share of my estate," etc.

The Circuit Judge held that the legacy was given in lieu of dower.

There is no dispute as to the law in regard to the principles which apply to the dower rights of the widow. The difficulty is their application. The application made by the Circuit Judge is fully sustained by the authorities cited. (Let the Circuit decree be reported.)

It is said that the authorities cited embrace opinions by a divided Court. It is well to clear up a misapprehension in the minds of the bar as to the force of a decision of this Court in cases in which the Court is divided. A dissenting opinion shows that the case has been thoroughly considered. The opinions of the majority govern. When that question arises in future cases, the dissenting Justice is as much bound by the decision of the majority as is the Justice who wrote the prevailing opinion. The dissenting opinion, within the jurisdiction of the Court, strengthens the authority of the case. Outside of the jurisdiction of the Court, where the decision is not binding but merely evidence as to what the law is, of course the conflict of the witnesses weakens the force of the opinion. The opinion in Hair v. Goldsmith, 22 S.C. 566, is conclusive of this case on both questions.

The judgment is affirmed.