Feder v. Flattau , 9 McCanless 111 ( 1959 )

Mr. Chxee Justice Neil

delivered the opinion of the Court.

This is a direct appeal from the Chancery Court of Shelby County, the same being on the pleadings with a stipulation as to testimony.

The question to be decided is correctly stated on the appellant’s brief, as follows: “After dower is assigned, is a dissenting widow entitled to one-third of the rentals from the lands from the date of the death of her husband to the date of the assignment of dower?”

We Rave carefully examined the pleadings as they appear in the record and feel that it is not necessary to recite in this opinion the specific averments in the original and amended bill, and the response of the defendants. The question presented on this appeal arose in a suit filed by Leo D. Feder, owner of an undivided one-half interest as tenant-in-common with his deceased brother, Sam Feder, in certain rental property in Shelby County, for partition, or sale thereof for division. In this suit the widow of Sam Feder, deceased, and remaindermen under the latter’s will, were made defendants. The real estate was sold by an interlocutory decree and distribution was made of the proceeds therefrom.

“The widow received her dower in all the real estate by the sale thereof and the payment to her of the cash value of her said dower interest was based on her age.” The foregoing is from the appellant’s brief and is undoubtedly correct; it is not in serious dispute.

The widow, however, in her answer and cross bill insisted not only that dower be assigned to her out of the real estate but that she be awarded dower in the net rentals derived during the period of five years between the date of his death and the date of her application for assignment of dower.

Some question is made as to the age of the widow, which was important in arriving at the cash value of her dower interest, but it was agreed that she was sixty-five (65) years of age and settlement was made on that basis. Her right to have dower out of net rentals of the real estate which her husband held as a tenant-in-common with his brother, the complainant in the original bill, was the crucial issue in the cause.

The Chancellor held that the widow was entitled to dower in any event to the net rentals of the real estate accruing from the date of his death, but is mistaken in that holding she was so entitled on the ground that “there was an impediment placed in the way of the widow claiming dower” and her failnre to sooner petition the conrt for dower was excusable.

It conclusively appears that the widow, althongh represented at all times by able counsel did not make application for dower in the net rentals of his real property until complainant filed the original bill for sale of the property for partition, which was April 5, 1956. The deceased Sam Feder died on October 4,1951, and his will was probated October 19, 1951. It thus appears that the widow, who dissented from the will on May 16,1952, made no application for dower for five (5) years after his death.

We think the learned Chancellor was clearly in error in holding that “there was an impediment placed in the way of the widow claiming dower. ’ ’ She could have petitioned the County Court at any time for dower, and neither the devisees nor the Executor of the will, or anyone else, could have had any grounds for objection thereto. She was entitled to dower as a matter of right. Moreover there was no impediment in her deceased husband’s will, and in her answer and cross bill she made no claim that there was an impediment to her right to claim dower, other than an averment in the answer and cross bill “that their marriage would have nothing to do with the real estate or the store owned by him and his brother. ’ ’ She was in no sense bound by the terms of the will, which was executed four (4) years prior to their marriage. Nor was she barred from claiming dower as a result of any verbal agreement with, or promise made by, the testator, if any, as to her rights in his property. Having dissented from the will on May 16, 1952, she elected to take such interest in his estate, both real and personal, as she was entitled to as a matter of law. With all deference to the Chancellor and counsel we can find nothing in the record to support the theory that there was such an impediment to the widow’s claim and right of dower as amounted in law “to a deforcement of the widow’s dower.” Her failure to file a petition for assignment of dower for over five years following her husband’s death remains unexplained upon any theory.

There was an agreement to sell the property of the deceased for partition, the proceeds being distributed according to the rights and interest of all interested parties. The delay in determining the cash value of the widow’s dower was not an impediment to her right. It resulted from the fact that she claimed she was only forty-nine (49) years of age when it was finally decided and agreed upon that she was sixty-five (65) years old. She accepted full payment for her dower interest based upon this age.

While the matter of the widow’s dower and proceedings to allot dower are controlled by statute in this State, we can find nothing in any section of the Code upon which the widow can maintain her present claim to dower in the net rentals of the real estate, title to which passed to the various devisees mentioned in the will. They took their respective estates subject to the widow’s dower.

The counsel for the defendant widow are insistent that there is no waiver; that the doctrine could not apply especially where there were obstacles thrown in her way, i. e. an impediment which amounted to a “deforcement” of her right of dower. As we understand the law relating to “deforcement” which tends to preclude or delay the widow’s petition for dower, it is some act of the heir, or devisee, which amounts to a wrongful act. The case of London v. London, 20 Tenn. 1, is a clear illustration of an impediment to the widow’s right of dower. We have not such a comparable situation under the facts of the case now under consideration.

The cases relied on in support of this contention do not control the case at bar, such as Clift v. Clift, 87 Tenn. 17, 9 S. W. 198, 360, and Lewis v. James, 27 Tenn. 537. These cases, and other cases cited on appellee’s brief, involve assignment of dower in lands which are not capable of division, such as coal mines in the Clift case, and real estate in Lewis v. James, which property was incapable of being allocated to the widow by metes and bounds. In the latter case there could be no assignment to the widow of the “mansion house” and homestead. It cannot be doubted that under certain circumstances a court of equity may decree compensation in lieu of dower. We think the authorities in this State generally'Support the right to dower in specific property of a deceased husband’s real estate. See Briscoe v. Vaughn, 103 Tenn. 308, 52 S.W. 1068, and cases cited therein. There it was expressly held that as to dower it must be assigned and designated by metes and bounds (103 Tenn. at page 313, 52 S.W. 1068). We can find no reported ease holding to the contrary.

In support of the foregoing general rule it was held in an early case, Vincent v. Vincent, 1870, 48 Tenn. 333, that the value of improvements on land is not to be considered in assigning’ dower. Tbe Court thus observes (at pages 339-340):

“* * * Tbe leading object of tbe statute is to give ber tbe mansion-bouse and buildings, or sucb part thereof as will afford ber a decent residence, due regard being bad to ber condition and past manner of life. It was not tbe intention to compel tbe widow to take all tbe buildings and improvements, and to lose any part of tbat share of tbe land which was intended to be assigned for ber support. ’ ’

We readily agree to tbe contention tbat when tbe lands of tbe deceased, or other holdings sucb as leaseholds and tbe like, cannot be allocated to tbe widow as dower and assigned by metes and bounds, then she may claim ber dower in rents and profits accruing therefrom. This is our interpretation of tbe rule in Lewis v. James, supra. Tbe facts of tbe case at bar do not bring it within tbe rule as announced in tbe foregoing decisions.

We think tbe ease more clearly in point, and which controls tbe case at bar, is In re Moore’s Estate, 34 Tenn. App. 131, 234 S.W.2d 847, 852. In a very elaborate opinion in which tbe several Code Sections in T.C.A. relating to tbe assignment of dower were reviewed, tbe court said (opinion by Anderson, P. J.):

“* * * These statutes and others relating to dower contemplate tbat in a case where tbe property is so situated and is of such character tbat it can be done, a specific part of the land of the deceased shall be set apart as dower. Otherwise, tbe heir would be severely handicapped in dealing with bis part of tbe property, for dower is an encumbrance upon bis right. Kitts v. Kitts, 136 Tenn. 314, 189 S.W. 375. The widow would be likewise at a disadvantage. She would have no right of entry or title to her estate and could not deal with it as her needs might require. Downs v. Allen, 78 Tenn. 652; North v. Puckett, 164 Tenn. 100, 46 S.W.2d 73, 81 A.L.R. 1107. For a widow has no estate in the land of her deceased husband until it is assigned to her as dower. Thus, she cannot maintain am action at law for occupation or for rents accruing after the death of her husband before the assignment of her dower. Thompson v. Stacy, 18 Tenn. 493; London v. London, 20 Tenn. 1; nor can she sue for possession of or injury to the land. Guthrie v. Owen’s Heirs, 18 Tenn. 339; Latta v. Brown, 96 Tenn. 343, 34 S.W. 417, 31 L.R.A. 840; Briscoe v. Vaughn, 103 Tenn. 308, 52 S.W. 1068.” (Emphasis ours.)

In the instant case the deceased Sam Feder owned at his death a number of pieces of valuable real estate, valued at approximately $70,000. No contention is made by the widow that these several properties were of such a character that a reasonable allocation could not have been to the widow as her dower.

In Thompson v. Stacy, 18 Tenn, 493, cited in the opinion In re Moore’s Estate, supra, it is said:

“Dower having, then, to be recovered by a real action, no damages were at common law recoverable by the wife for the detention, because damages can only be given for the detention of the possession, and in writs of right, where the right itself is disputed, no damages are given, because no wrong is done until the right is determined. Co.Lit. 32 b; 1 Keb. 86; 1 Oru. 169; 2 Inst. 286; 10 Co. 216.

“This rule, however, was partially remedied by statute of Merton, passed 20th Hen. III., ch. 1, which provides that ‘widows which, after the death of their husbands, are deforced of their dowers, and cannot have their dowers or quarantine without plea, whosoever deforce them of their dowers or quarantine of the lands whereof their husbands died seized, and that the same widows after shall recover by plea, they that be convicted of such wrongful deforcement shall yield damages to the same widows, that is to say, the value of the whole dower to them belonging, from the time of the death of their husbands until the day that the said widows, by judgment of our court, have recovered seizin of their dower/

* * =£ * # *

“But if the heir or feoffee assigns dower, and the widow accepts thereof, without an allowance for her damages, she cannot afterwards claim them, because having accepted dower, which is the principal, she cannot afterwards sue for damages, which are only accessory.”

We think that under T.C.A. sec. 30-902 “Note 2” is misleading. It appears to state unequivocally that the widow is entitled to dower in any case to the rents for the period in question. But under the decisions to which we have referred, and especially In re Moore’s Estate, she is entitled to rents as part of her dower when the heir or devisee has deforced her, or the estate cannot be partitioned in kind, or dower assigned in specific property. An important case, dealing with the right of dower at common law, appears in Tool’s Lessee v. Pride, 1 Tenn. 234, wherein it is held:

“At common law, the heir was bound to assign dower, and, until he had done so, could not maintain ejectment against the widow to recover the mansion house held by her. But this principle was changed by the Act of 1784, under which the widow must begin by filing her petition, and, if she neglect to do so and hold the mansion house, the heir may recover in ejectment.”

We feel that it is hardly a matter of serious controversy that the widow must petition for dower, the burden being upon her to act unless she is deforced by^ the heir or devisee. She is the real party in interest and where there is no impediment to her right of action, vouchsafed to her under the common law and by statute, she has no one to blame but herself for her failure to petition the court for assignment of dower.

We think from all the authorities she had no vested interest in her husband’s real estate until there was an assignment of dower, In re Moore’s Estate, supra. In these circumstances she is not privileged to claim any right to rentals in property after a lapse of more than five (5) years following her husband’s death.

The assignments of error are sustained and the decree of the Chancellor is reversed. The cross bill is dismissed. Remanded for such further orders as may be necessary for a final decree consistent with this opinion.

Neil, Chief Justice.