Hiers v. Gooding , 43 S.C. 428 ( 1895 )

The opinion of the court was delivered by

Mr. Chief Justice MoIver.

These two cases based upon the same facts, substantially, and involving the same questions of law, were heard and will be considered together. The only question presented is, whether the demandant is barred of her dower by reason of her acceptance of the provision made for her by the will of her first husband. A copy of this will should be incorporated in the report of this case, as we only propose here to state what we understand to be the provisions therein made for the demandant. The testator, after providing for the payment of his debts and funeral expenses, devises to his nephew, George Thomas Rivers, his home tract of land, containing 255 acres, more or less, designated on the plat thei'ein referred to by the letter “A,” together with two mules, stock of cattle and hogs, besides other personal property therein specified, and then proceeds as follows: “It is further’my will, that my nephew, George Thomas Rivers, keep my entire property together during the life of my wife or her widowhood; and it is further my last will and testament, that my wife, Rebecca EL Rivers, remain as she now lives, on my place at home during her natural life or widowhood, and that the said George Thomas Rivers is to protect and support her during such life or widowhood, comfortably out of the proceeds of my estate, without any expense or trouble to my wife; and in case my wife, Rebecca H. Rivers, and my nephew, George Thomas Rivers, cannot live agreeably, it is my will and pleasure that my nephew, George Thomas Rivers, provide a house for himself or for my wife to live comfortably in on my place, and to continue to support and protect her during her natural life or her widowhood; and in case my wife should marry after my death, then all claim of protection or support from my nephew, George Thomas Rivers, shall cease, and all provisions in my will for her support cease, except that it is my will and pleasure that my wife take as her own all the cash money I have on hand, after paying the expenses of making and harvesting my present crop.” In a subsequent clause the testator devises to his nephew, W. M. D. Rivers, another tract of land, containing 228 acres, more or less, designated on the plat above mentioned by the letter “B.” It is conceded that the demandant continued to live on testator’s home place, after his death, for nearly three years, and until her intermarriage with her present husband, N. T. Hiers, deriving her support and maintenance therefrom.

The provision made for her in the will having ceased upon her second marriage, by the express terms of the will, she instituted these two actions in the Court of Probate, claiming dower out of the two tracts of land above referred to as designated by the letters “A” and “B.” Her claims of dower having-been allowed by the judge of probate, the defendants, respectively, appealed to the Circuit Court, where the decrees of the Court of Probate were affirmed, and judgment rendered accordingly. From these judgments defendants again appealed to this court'upon the several grounds set out in the record, which need not' be repeated here, as they, practically, raise only the single question, to wit: whether the demandant, by accepting the provision made for her in the will of her first husband, has barred her claim of dower.

1 It is well settled that dower isa highly favored right, which, inchoate during coverture, becomes a vested estate in the wife, immediately upon the death of her husband, over which he has no more control than he has over any other separate estate of his wife. It follows, therefore, that when the husband undertakes to devise any real estate of which he was seized during coverture, it must be presumed that such devise is made subject to the wife’s right of dower, for it would be absurd to suppose that he intended to devise that over which he has no control, and no right to dispose of. But while this doctrine is universally recognized, the law also recognizes the power of the husband, by proper provisions for that purpose in his will, to put his wife to her election, whether she will take the provision made for her in the will, or insist upon her legal right of dower; and if, in such a case, she elects to take the provision made for her in the will, she loses her right of dower; not, however, by any act of her husband, but only by reason of her voluntary surrender of such right. In other words, where the husband, by his will, practically says to his wife, I recognize fully your right to dower in a given tract of land, and concede that I have no power to deprive you of such right, but as I wish to give the entire estate in that land to my son, freed from your recognized right of dower therein, I will make another provision for you in lieu of that right — in such a case the wife is put to her election, whether she will agree to the terms proposed; and while she cannot be compelled to surreder her claim of dower, yet if she accepts the provision made for her in lieu of such claim, she is regarded as having voluntarily surrendered her right of dower, as she cannot, in the case supposed, claim both.

But, iu order to put the wife to her election, it must appear upon the face of the will, either in express terms or by necessary implication, that the testator intended to annex, as a condition to the provision made for the wife, that she should surrender her right of dower. As is said by Ld. Redesdale, in Bermingham v. Kerwan, 2 Sch. & Lef., at page 452: “It is, however, to be collected from all the authorities, that, as the right to dower is, in itself, a clear legal right, an intent to exclude that right by voluntary gift must be demonstrated, either by express words or by clear and manifest implication. If there be anything ambiguous or doubtful, if the court cannot say that it was clearly the intention to exclude, then the averment that the gift was made in lieu of dower cannot be supported; and to make a case of election, that is necessary, for a gift is to be taken as pure until a condition appears.” To same effect, see remarks of Dargan, Oh., in his Circuit decree, in Cunningham v. Shannon, 4 Rich. Eq., at pp. 139, 140, which, as to this point, were affirmed by the Court of Appeals. Indeed, these general principles do not seem to be anywhere disputed, the only difficulty being in their application to the facts of any given case.

2 In the present case it is not pretended that the will contains anything like an express declaration that the provision made for his wife was intended to be in lieu of her dower, and the only inquiry is whether there is anything in the will clearly and manifestly implying that there was any such intention. The test of this is said in Callaham v. Robinson, 30 S. C., at page 254, quoting from the previous case of Hair v. Goldsmith, 22 S. C., 566, to be “whether the two are so manifestly repugnant that they cannot stand together” — “that the provision in the will is so manifestly repugnant to the right of dower, that the two cannot stand together.” We confess that in this case we do not see any such repugnance. The right of dower when it becomes vested is an estate, and we do not understand that by the terms of this will any estate or interest of any kind in any property is given to the wife except in the cash on hand, which is not in question here. The only provision made for her is that she shall be allowed to “remain, as she now lives, on my place at home, during her natural life or widowhood,” and that she is to be provided with a support, by George Thomas Rivers, “out of the proceeds of my estate,” for which purpose he is directed to “keep my entire property together during the life of my wife or her widowhood.” No estate or property of any kind is given to the wife, except the cash above referred to, for tract “A” is given directly to George Thomas Bivers, and tract “B” is given directly to another nephew, W. M. D. Bivers. The provision for the wife seems to have been in the nature of an annuity for-her life or widowhood, charged upon the uentire property” of the testator, with a permission for her to live upon the home place with the nephew, George Thomas Bivers, if agreeable to both parties; but if not, that the nephew shall provide another house on the same place either for himself or for the wife. There was no life estate in any of the property given to the wife, and hence the point decided in Wilson v. Hayne, Cheves Eq., 37, Caston v. Caston, 2 Rich. Eq., 1, and Cunningham v. Shannon, supra, do not arise. As we have said, the provision for her was rather in the nature of the annuity. So that the question is, whether a provision of that kind necessarily or even clearly and manifestly implies an intention to exclude the claim of dower. That point has been distinctly decided in the case of Holdich v. Holdich, 2 Younge & Col., 18, recognized in Ounningham v. Shannon, supra, where it was held that a gift of an annuity to the testator’s widow, although charged on all the testator’s property, is not sufficient to put her to her election, and the widow’s claim of dower was allowed.

3 Inasmuch as the judgment below was rested largely, if not entirely, upon the case of Sumerel v. Sumerel, 34 S. C., 85, as conclusive of this case, we think it necessary for us to say that we cannot accept that view. In that ease, dower was not claimed out of the land which seemed to have been set apart for the benefit of the widow, but out of two other tracts, which were directed to be sold and the proceeds divided between those of the brothers and sisters of testator, who were given no interest whatever in the tract of land from which the widow of testator was to derive her support. There was, therefore, no question in that case as there is here, as to whether the widow was entitled to dower in the tract of land from which she was to derive her support, and hence we do not regard that ease as decisive of this. But having reached the same result as that reached by the Circuit Judge, for the reasons we have set forth,

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