41 Vt. 467 | Vt. | 1868
The opinion of the court was delivered by
The question is whether the widow’s one third of the personal estate of her intestate husband vests in her at the death of her husband, or only upon assignment of it to her by tile probate court. In this case, the widow, Ruth, died before any assignment to her from the personal estate of her deceased husband, Jesse. There was no issue of their marriage, but it was the second marriage of both, and each left children by a former marriage. It now becomes a question of some practical importance, whether the one third of the personal property, which the widow would have received if she had lived until her husband’s estate was settled, shall pass to the children of her former marriage, in whose interest this suit is prosecuted, or shall pass to the children of her husband’s former marriage, in whose interest this suit is defended.
The statute provides that the widow shall have such part of the-personal estate of her intestate husband “as the probate court may assign to her, according to her circumstances and the degree- and estate of her husband, which shall not be less, in any case, than one third, after the payment of the debts, funeral charges and expenses of administration.” Gen. Sts. 884, § 1.
In order not to over estimate the force of this statute, it is well to bear in mind what the law was without it. Independent of this statute, the right of the widow to one third of her intestate
It is not the purpose of our statute, in providing that tlie court may, in their discretion, assign to the widow a sum in addition to the one third, to alter or prejudice the right she already had, or any of its incidents. So far as her right depends upon the discretion of the probate court in view of, among other things, “ her circumstances,” the right is personal to the widow herself, and if she dies before action upon it by the probate court, the right dies with her and does not pass to her representative. The one third, on the other hand, is her share. It vests in her by law. It does not depend upon the discretion of the court. It is true that the amount of it has to be ascertained and the identity of the widow established before it can be formally assigned to her. The same is true of the distributive share of any of the heirs. When these preliminary facts arc settled, the duty of the probate court to confirm the one third to the widow by a proper decree is imperative. Her right to the one third is recognized and affirmed by the statute referred to, not created by it. The innovation made by that statute is in conferring upon the widow a qualified right to a sum in addition to the one third, and as that addition is left to the discretion of the court, the legislature, to avoid mistake, distinctly provide that the discretion shall not extend to the one third, thus indicating a purpose to leave the one third as it stood before, the widow to that extent taking by right directly from the husband. No argument is to bo drawn from the fact that she does not come into the control of the property until it'is formally assigned to her, because that argument, if it proves anything, proves too much. For the child or heir does not obtain control of his distributive share until it is' passed to him by the court, and yet if he dies before assignment, his share passes to his heirs and not to the heirs of the ancestor. The share which by law passes to the widow is governed by the same rules as the share which passes by law to the heir.
The judgment of the county court is reversed, and judgment is rendered that the widow’s right of homestead and one third the personal estate be set out and assigned to the petitioner, and this judgment is ordered to be certified to the probate court.