69 W. Va. 710 | W. Va. | 1911
By this suit tire widow of Peter S. Couch prays that dower be assigned her in the lands devised to her husband by the will of his father, Samuel Couch. Her right to dower therein is denied by the defendant, Sarah F. Eastham. The case presents a single question: Is the plaintiff entitled to dower ?
T'he answer to the question must be determined by a consideration of the following paragraph in the will of Samuel Couch:
This same paragraph of the will of Samuel Couch, twice before, in the life time of P'eter S. Couch, has been involved in suits in this Court. Couch v. Eastham, 27 W. Va. 796; Couch v. Eastham, 29 W. Va. 784. But, of course, in neither of those eases was the character of the estate devised to Peter S. Couch viewed in relation to dower. Now that he has departed this life leaving no issue, and Sarah E. Eastham has paid to his widow the two thousand dollars pursuant to the terms of the will and the codicil thereto, this subsequent controversy about the right of dower arises.
The will gave Peter S. Couch a defeasible fee in the land. He held an estate in fee simple which 'would shift in the event of his dying without lawful children. The fee continued in him until he died without issue. If lawful children had been born to him, the estate was one which they could have inherited as
It is, however, insisted that Samuel Couch did not intend that the widow of his son should take dower in the land. What he did intend must be determined from the will itself. The will is clear and unambiguous. We cannot change it and thereby make a new will. The testator plainly gave his son an estate in which the widow of the latter was dowable. This imports that the testator intended her to have dower, after the son’s death. He must be presumed to have known the legal consequences of his will. Whether Samuel Couch could have so devised an estate of inheritance to his son by terms of the will as to cut off right of dower therein, we need not decide. The will does not undertake to cut off dower. It does not directly affirm that the son’s widow shall have no dower. Nor does it say that the two thousand dollars to-be paid by Sarah P. E'astham to the son’s widow shall be in
The decree is a proper one. It will be af&rmed.
Affirmed.