37 S.C. 529 | S.C. | 1892
Lead Opinion
The opinion of the court was delivered by
The facts of this case, as stated, are as follows: John Bannister died in 1891, seized and possessed of real and personal estate, supposed to be worth about $12,000, and consisting in part of a tract of land, containing five hundred acres, of the value of four or five thousand dollars, out of which his widow, Sarah Bannister, claims dower. He left a will, by which he appointed William M. Bannister
The testator left a widow and brothers and sisters, but no children. Tbe widow claims dower in the 500 acre tract of land, in addition to the provision made for her by tbe will. This was allowed her by the decree of tbe próbate judge, which was reversed upon appeal by bis honor, Judge Hudson. From bis judgment tbe widow Sarah appeals to this court upon tbe following grounds: (1) Because bis honor erred in deciding that tbe exceptions of tbe defendants to tbe decree of the Probate Court were well taken; whereas, be should have overruled
First Upon the subject of intention some consideration is due to the amount of the provision for the widow. As Chancellor David Johnson, in the case of Brown v. Caldwell, Speer Eq., 323, said: “It will be implied in all cases where the dispositions of the will are so inconsistent with the wife’s right of dower, that they can’t both take effect; or, if the provision for the wife be as ample, regard being had to the value of the estate, as to excite the belief that the testator could not have intended that she take both.” The testator had no children, but a wife, and brothers and sisters. In such case, the widow would have been entitled, under the statute of distributions, to “one-half of the estate.” The will gave her one of two equal parts for life, and in addition the household and kitchen furniture absolutely.
Second. The manner in which the provision for the wife was made. It seems that the leading thought in the mind of the testator was, that the provision for his wife should be in money or stocks, and held for her by others. The intention was express that his land should be sold and turned into money, and in that form the executors were to divide “the entire estate” into two equal parts, and to control one of the parts, and to pay the income annually to his wife, “during the period of her natural life.” Is it not manifest that this intention would be defeated by laying off dower by metes and bounds in the land? When the testator directed all his lands to be sold, can it be supposed that he meant the remnant of his lauds after the assignment of dower, or that he meant that the land should be sold subject to his wife’s claim of dower? Besides, the testator intended the executors to manage the provision for his wife, and pay her the income, which would surely be defeated by the widow occupying one-third of the land itself as dower.
Third. The provision for the wife is greater than the dower
Foiirth. The will clearly shows an intention that the executors should divide the entire estate “into two equal parts;” one of which should be held for the widow during her life, and the other was given to the brother of the testator, David Bannister, &c. It was obviously the scheme of the will that the division of the estate “should he equal.” Would not the allotment of dower in the land, which was to be sold, necessarily defeat that intention as to equality, giving the widow more and the other parties less than was intended? “The claim of dower during
Considering the whole of this will together, I can not doubt that the testator, John Bannister, intended the jirovisious of his will for his wife, to be a substitute and satisfaction of all her claims of every kind on his estate, including that of dower; and that to allow her to retain those provisions, and dower in addition, would not only defeat the clearly expressed intention of the testator, but work an injustice to the other parties concerned. I do not overlook the fact that, commencing under the old law, by which the legal existence of the wife was merged in that of the husband, dower has always been properly spoken of as “a favored claim." It is true, that latterly the rights of a married woman have been largely increased in respect of her separate estate, homestead, &c. But as the right of dower also still remains to her, I think, in reference to it, that the widow should always have the fullest measure of justice; but that her claim for dower should be considered as all other claims are considered, and determined according to the facts and the law of the ease. We agree with the Circuit Judge, that it being admitted that the widow claims under the will, she is not entitled to dower.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.
Dissenting Opinion
dissenting. As I cannot concur in the conclusion reached by Mr. Justice McGowan, I propose to state, very briefly, the grounds of my dissent. Assuming, as he says, that in each case the question is one of intent, and that each case, as it arises, is to be determined by its own
But in addition to this, as I understand it, one of the main objects in securing to the widow the right of dower, is to provide her with a home; yet here, under the construction given to this will, the widow is not only deprived of her home, but is left without a spot of ground which she can claim as her abiding place eveu for life, and the property which is only given to her absolutely is the household aud kitchen furniture, without any house or kitchen in which it can be used. I cannot think that the testator intended any such result; but, on the contrary, knowing, as he must be presumed to know, that he had no power to dispose of his wife’s dower, his intention was that she should retain that right, in addition to the provision made for her in his will, and that when he directed his executors to sell all of Ms real estate, he meant what he said, and did not mean that they should sell what he had no legal right to dispose of, the wife’s estate of dower. As is said by Dargan, Ch., in his Circuit decree, in Cunningham v. Shannon, 4 Rich. Eq., at page 140, which upon this point was affirmed by the Court of Appeals : “Dower is a right which, inchoate during the coverture, becomes absolutely vested in the wife as an estate, on the death of her husband, and is as much beyoud his control or power of disposition as her own inheritance. It not being his to give, every devise which he makes of the land upon which the right of dower attaches, is presumed to be given subject to the legal estate, unless the contrary appears on the face of the will, in express words or by the strongest kind of implication.”
Judgment affirmed.