56 Miss. 232 | Miss. | 1878
Lead Opinion
The judges delivered opinions seriatim.
Under the Code of 1871, unmodified by sect. 25 of the act revising chap. 9 of said Code (Sess. Acts 1876, pp. 178-
By sect. 1948 of said Code, it is declared that the whole of the lands and tenements of any person dying intestate, leaving no children, nor descendants of them, shall descend to his brothers and sisters, or, in default of these, to certain other collateral relatives designated. By sect. 1951 the same , provision is extended to personal property. By sect. 1949, however, the dower of the widow in the real estate of the husband is preserved in all cases. There is no specification of what that dower shall be. The chapter of the Code in which these provisions are found was approved April 13, 1871. If it constituted the entire law on the subject, it is evident that the brothers and sisters would take the entire estate, save the dower interest of the widow.
By sect. 1788 of the Code, it is declared that if a husband dies intestate, leaving- no children, nor descendants of children, his widow shall be entitled to the whole of his estate, real and personal, in fee-simple, after the payment of debts. The chapter containing this section was approved April 17, 1871, —that is to say, four days after the sections giving the entire estate, save the dower, to the brothers and sisters. If these two statutes constituted the whole law on the subject, the brothers and sisters would take the whole estate of a childless intestate where there was no widow, and would, perhaps, take nothing where there was one.
By sects. 1281 and 1282, it is enacted, among other things, that where there are no children, nor descendants of children, of a testator or intestate, the widow shall take as her dower one-half of the estate, real and personal, in 'fee-simple. The chapter containing these clauses was approved May 13,1871, — just one month after that giving to the brothers and sisters the entire estate, except the dower, and one month, less four days, after that which, by giving the widow all, deprived them of all.
Briefly, then, the law stands thus: By the sections first
But these several enactments are not separate and distinct statutes. They are parts-of a code, the several statutes, chapters, and sections of which, though adopted on different days, went into operation on the same day, and were intended to form parts of a symmetrical and harmonious' whole. We must not treat them as distinct enactments, speaking the will of the law-giver at different times, but, if practicable, as declarations uttered uno flatu, by which was established by a single utterance the entire statute law of the State.' The Code, in short, is to be treated as a single statute of many sections, and, if possible, those sections are to be made harmonious. What effect will this view have upon the sections under consideration ? It will authorize us to look through the entire work, for the purpose of gathering all the assistance possible from a complete survey of it. This is the only aid to be derived bjr considering the apparently conflicting sections as parts of a whole, rather than as statutes in pari materia, adopted at different periods ; because, in construing this last class of statutes, where there are no repealing words in those last adopted, we are compelled to inspect them all, and, if possible, make them harmonious. We are not at liberty to say that one .repeals the other, if it is possible to reconcile them." Especially is this so where they are passed at the same session. The proper construction of a code differs in no respect
Can the sections be reconciled ?
Under certain circumstances they can, and under those circumstances it would be our duty to retain both. - Thus, under sect. 1788 a surviving widow would inherit a reversion or remainder to which her husband was entitled, but which he had never enjoyed because of his death befoi-e the termination of the particular estate upon which 'it was dependent. By sect. 1281 the widow would take nothing under such circumstances, because the interest granted by that section is termed a dower, and she would not be entitled to dower where her husband had not been seized.
So, on the other hand, by sect. 1281 she would be entitled to dower in lands sold by the husband, during their marriage, otherwise than in good faith and for a valuable consideration; whereas under sect. 1788 she would inherit only the lands of which he died seized. In these and all similar cases, where one of the clauses can be made to subserve a useful purpose without destroying the other, both should be preserved, and in every case there should be no rejection of either, if there is any • possible method of retaining both. Leaving out of view the exceptional cases referred to, growing out of the peculiar ten
. Let us examine the several methods of reconciliation which have been suggested : —
1. It is said that harmony can be preserved by holding that those sections which give the brothers and sisters the entire estate are intended to apply only where there is nó widow, and -the others where there is one. The effect of this, it is said, will be to cut off the brothers and sisters altogether where there is a widow, and thus the apparent conflict between the sections giving her all and those giving her half will be immaterial, since in taking all she necessarily takes the. half. Thus, one section will absorb the other, and all the sections will have operation, — those which give the entire estate to the brothers and sisters controlling where there is no widow,- and the others .conferring upon the widow, where there is one, both the whole and the half.
There are several fundamental objections to this theory. In the first place, it is not a reconciliation of the sections at all, but a simple absorption or destruction of one by the other. In the second place, it is not true that sects. 1948-1951, which give the estate to the brothers and sisters, where there áre no children, apply only where there is no widow. On the contrary, they plainly contemplate the existence of a widow, and it is provided by sect. 1949, that while the children, or, where there are none, the collaterals, shall take the whole estate of inheritance, the widow’s dower shall be preserved under all circumstances, leaving to other portions of the Code to define what that dower shall be. It is not true, therefore, that the rights of collaterals are guarded only where there is no widow.
The further error in this view consists in ignoring the fact that when the law-giver proclaims, in the same breath, “ The brothers and sisters shall have all, the widow shall have all, the widow shall have half,” the last sentence necessarily implies that the brothers and sisters shall have the half which
It has been said that a code speaks uno flatu. So does a deed. Suppose, then, a donor places on record, without personal delivery except to ' the recorder, a deed whereby he conveys his manor of Black Acre to A., and then by another clause conveys it to B., and then by a third clause conveys one-half of it to B. Could these clauses be made harmonious by a construction that gave it all to B.? Would such a construction be a reconciliation of apparently conflicting provisions, or would it be an arbitrary assumption that the testator, or grantor, or law-giver, intended that which we think he ought to have intended ?
To hold that the sections can be reconciled by saying that the whole includes the half, and that, therefore, the widow takes all, is to disregard the brothers and sisters altogether. It would be a satisfactory solution if we have in view the widow alone, but it is no solution at all when we remember that others
2. But it is said that sect. 1788 gives the widow the entire estate as an heir, or by inheritance, while sects. 1281 and 1282 give her half of it as dower, so that she may claim all by one title or tenure, and half by another. It may well be doubted whether the widow can ever be said to hold by inheritance. Schouler’s Domestic Relations, 183, defines dower to be “ that provision which the law makes for a widow out of the lands and tenements of her husband; ” and the terms, therefore,, would embrace the provision made by sect. 1788, as well as that made by sects. 1281 and 1282. It is to be observed, also, that the word “ dower ” is not used in sect. 1282, which gives the widow one-half of the personalty. But, apart from this, what possible useful purpose is subserved by the distinction between an estate by inheritance and one as dower, when they are both made estates in fee-simple? By sect. 1788 she takes the whole estate in fee-simple; by sect. 1281 she takes half of it in fee-simple., Is any thing practical attained by saying that she holds all by inheritance and half as dower? This method of reconciliation is simply cheating ourselves with
3. But it is said that under sect. 1788 she takes the entire estate, subject to the debts, while under sects. 1281 and 1282 she takes half of it as dower, and consequently freed from all liability to debts. The argument is, that the Legislature intended, in giving her half as dower, to confer a substantial benefit upon her by preserving one-half of the estate in case of indebtedness, and that it would therefore be wrong to so construe this additional provision made for her benefit as to wrest from her the more enlarged provision elsewhere established. This theory seems plausible, and would be sound if not overthrown by other portions of the Code.
As to the personalty, the language of the sections themselves demonstrates its incorrectness. As to the realty, it is shown by other sections. Sect. 1788 gives to the widow the entire estate of the intestate, real and personal, “after the payment of his debts.” Sect. 1282 declares, as to the personalty, that “if there be no children, or if there be but one child, in that case, she shall be entitled, out of the residue left after paying the debts of the deceased, to one-half.”
It is thus seen that, so far as the personalty is concerned, the antagonism is direct and palpable. Under one section she takes all, after the payment of debts. Under the other, she takes half, after the payment of debts. But there is another important feature to be observed with reference to the personalty, under sect. 1282. It is said that she “ shall be entitled to share in it as follows : * * * If there be no children * * * she shall be entitled, out of the residue left after paying the debts of the deceased, to one-half.” She is “to share in it ” “ if there be no children ; ’ ’ and her ‘ ‘ share ’ ’ is to be “ one-half.” Who is she to “ share ” with? Who is to receive, as their “share,” the other half, if there be no children? Manifestly those pointed out by sects. 1948-1951, to wit: the brothers and sisters, or other collaterals. Here, then, we have, in sect. 1282, an affirmative declaration that the
Let us look now to the realty. She takes the entire realty in fee-simple, after the payment of debts, under sect. 1788. She takes one-half the realty in fee-simple, as dower, under sect. 1281; nothing is said about debts. It would seem, then, that here is a substantial difference in the two estates, since it is settled that where the widow takes one-half of her husband’s realty in fee-simple as dower, she takes it freed of the debts. Bridgeforth v. Maxwell, 42 Miss. 743. But by sect. 1283 it is declared, that, if the estate is insolvent, she shall have only one-third of the lands of the intestate; so that another and wholly different arrangement is made with reference to debts. The three sections, then, stand thus : By sect. 1788 she takes all the land, subject to debts ; by sect. 1281 she takes half the land, free of debts; by sect. 1283 she takes one-third of the land, if the estate is insolvent. What is meant by the estate being insolvent? It means, of course, so much of the estate as can, in any event, be subjected to the payment of debts,— to wit, all the personalty and two-thirds of the realty. The one-third which the widow is to hold in any event, is not to be taken into account. Now, if the debts equal one-half of the estate, the widow who had taken all the realty under sect. 1788 would devote one half of it to the debts, and retain in fee-simple the other half. But this is exactly what she would do under sect. 1281, where the law gives her one-half only, but gives it to her free from debts ; so that nothing practical is ac
We have thus exhausted every method of reconciliation which has been suggested, and we have seen that, while in some exceptional states of case all the section's may be x-etained (and should be), there remains, ordinarily, a direct antagonism which is irreconcilable.
. The case before us is exactly of that character. There are here no creditors, or at least none whose lights, in any event, can be affected. There is here no land in which the husband was entitled to a reversion, but of which he was not seized, nor any which he had in his lifetime conveyed otherwise than in good faith, for a valuable consideration.
It is a simple case where a man possessed of a large real and personal estate, free from debts, has died.intestate, without children, or descendants of them, but leaving a widow, and also brothers and sisters, surviving him. It is in just this, state of case that the Code of 1871 is in a condition of hopeless and irreconcilable conflict. Sect. 1788 or sects. 1281 and 1282 must give way. Which shall fall, and which shall stand?
Upon this question we can have no choice. ■ Compelled to. elect between them, we must follow those cardinal canons
It is not for us to say that it is just and equitable for the widow of a childless husband to take his entire estate, because the-surviving husband of. a childless wife takes all- of hers. From the earliest dawn of the common law, the rights of husband and wife in the estates of each other have been widely different, and no State deriving its jurisprudence from the common law has ever sought to equalize them, so far as we are aware. Neither, is it of any value to consider that, nearly five years after the adoption of the sections under consideration, a succeeding Legislature amended the section giving the widow half,, so as to make it conform to section 1788 in giving her all.
The intestate in the case at bar died before this change, and our attempt,is, not to ascertain the will of the legislators of 1876, but of those who framed the Code of 1871. The fact that the sections giving her half were amended in 1876 must •be deemed, of itself, evidence that they were then .regarded, by the Legislature at least, as constituting the law on the subject. Bank v. Black, 11 Smed. & M. 43.
If we can look to the fact that the plan of a code, as presented by the commissioners, contained sect. 1788 and did not contain sects. 1281 and 1282, and that these latter sections were inserted by the Legislature, it would seem our duty to preserve those inserted by the Legislature ; since it is easier to believe that they overlooked sect. 1788 than that, of their own motion, they inserted provisions which did not express their méaning.
But the fundamental idea which must control is, that the sections giving the widow, one-half were approved one month after that which gave her all. Differences of time are to be disregarded in construing a code, if by disregarding .them, and looking at the work as a whole, harmony can thereby be produced ; but if this-proves , impossible, if, after exhausting
It was then submitted to the three judges of this court, who transmitted it, with appropriate suggestions, through the governor, to the Legislatui'e.
By that body its separate chapters were referred to different committees, and after being reported back, were, from day to day, chapter by chapter, adopted by the two houses of the Legislature and approved by the governor. Weeks and months were thus consumed, and many changes made in the original draft. It would be little short of a miracle if a book of three thousand sections, thus produced, did not contain inconsistent provisions. We must suppose that the Legislature was aware of this danger, and that they also knew that if inconsistencies were found which proved irreconcilable, the courts would enforce the sections last adopted and discard the earlier.
There are no repealing or negative words in the sections last adopted ; but although repeals in law are not favored, “ every affirmative statute is a repeal by implication of a precedent affirmative statute, so far as it is contrary thereto, for “Leges posteriores priores contrarias abrogant.” 9 Bac. Abr., tit. “ Statutes,” D, 226.
“It isa well-settled rule of interpretation that, although the subsequent statute be not repugnant in all its provisions to a prior one, yet if the later statute was clearly intended to prescribe the only rule that should govern in the case provided for, it repeals the original act.” Swann v. Buck, 40 Miss. 308, and cases there cited.
The sections of the Code giving the widow one-half prescribe
So fundamental is the canon of construction which makes the later expression overrule the former one, that it is well settled that the later clauses of the same statute, or of the same will, destroy preceding ones with which they are in conflict. Potter’s Dwar. on Stat. 156, note; 9 Bac. Abr., tit. “ Statutes,” D, 227; Harrington v. Trustees, 10 Wend. 550.
“ If a later clause of a will qualify a preceding one, both can stand ; but if the passages cannot be reconciled, the later must prevail, if it is equally relative to the testator’s primary intention.” O’Hara on Wills, chap. 2, sect. 11.
The same principle is announced in Brown’s Legal Maxims (side p. 561), with the qualification that “its application must be restricted by and made subservient to that general principle which requires that the testator’s intention shall, if possible, be ascertained and carried into effect.”
Undoubtedly the qualification applies to statutes as well as to wills. If a fundamental primary intent on the part of the law-giver can be ascertained from an inspection of all the statutes in pari materia, or of all the provisions of a code, and inconsistent provisions are detected, undoubtedly those which tend to promote the general scheme will be preserved, and those which tend to thwart it will be rejected; but this principle of construction is valueless until we have ascertained what was the principal or primary intent. How is it possible, to ascertain that here? The matter in hand is thé distribution of the estate of a childless intestate. One disposition of it is as proper as the other. There is nothing in the section under consideration, nor in the whole Code, to indicate that the lawgiver preferred that the widow should have the entire estate, rather than half of it. In terms equally emphatic he has made both declarations. It is urged, however, that while he has said that the widow shall have all, and that she shall-have half, he has not said that the brothers and sisters shall have the
This is a mistake of fact.
By sects. 1948-1951 it is distinctly declared that the brothers and sisters,-where there are no children, shall have the entire estate, subject, as declared by sect. 1949, to the widow’s claim for dower, in all cases; and then, by sects. 1281-1283, her dower is established and defined in every possible state of case. Where there are no children, it is to be one-half, in fee-simple. Most assuredly, therefore, there is a distinct affirmative declaration that the collaterals are to have the other half. , That this is so is put beyond the possibility of a peradventure by the fact -that the Code of 1857 contained all these sections save sect. 1788, and no man ever doubted, under that Code, that there was a clear affirmative declaration in favor of the collaterals as to one-half the estate where there were no children. The whole trouble is produced by the introduction into the Code of 1871 of sect. 1788. , The question is, whether that section shall be disregarded, and an otherwise harmonious system be preserved, or whether it shall be retained, and a half-dozen other sections thrown into confusion. When we reflect that sect. 1788 was the work of the commissioners who prepared the Code, and who purposely omitted the other sections as being inconsistent with it, and that the Legislature, one month after they had adopted that section, deliberately adopted and inserted the Other inconsistent section, failing simply to strike out sect. 1788, the conclusion seems irresistible that the system provided by sects. 1281-1283, -'which harmonizes ■ completely with sects. 1948-1950, and with all other parts of the Code, and is inconsistent only with sect. 1788, is the last and fundamental and authoritative expression of legislative will, and that the failure to strike out sect. 1788 was a mere oversight, proceeding, not from design, but from accident or carelessness.
But the question seems settled upon authority as well as principle.
Compelled, as we are, to choose between two sections which cannot be reconciled, we must give effect to the one last adopted, by which one-half only of the estate is given to the' widow. Its necessary effect is to give the brothers and sisters the other half.
In conclusion, I would remark that, previous to the investigation of this case, I was, of an impression different from that here announced. I recall'at least one estate wound up under my advice, while at the bar, in accordance with the theory that the widow took the entire estate.' I am now satisfied that I was in error.
Decree reversed and cause remanded, to be proceeded with in accordance with the views here announced.
We encounter, in this case, the dilemma of declaring which of two inconsistent and repugnant provisions of the Code shall prevail. The choice is not to be made on the idea that the members -of this court prefer the one to the other, or think the one wiser or better than the other. It is our duty to declare that one as law which was the will of the law-maker. To ascertain what that is, the investigation must be conducted, according to those canons of construing statutes which have been recognized as safe guides, and are established in our jurisprudence.
When the means of reconciling the conflict have been fruitlessly exhausted, we must consult those rules by whose light it may be' satisfactorily determined which shall give way. It is a fundamental rule, and axiomatic, that when two statutes
Where the, repugnance is between two sections of the same statute, the last section supersedes the former. The State v. Hall, 5 Rich. (1873) 120; Powers v. Barney, 5 Blatchf. 203; Elliott v. Lochnane, 1 Kan. 135; Southward Bank v. The Commonwealth, 26 Penn. 380, 382.
The cases of Ham v. The State, and Royston v. The State, 7 Blackf. 314, presented the question of conflict between two statutes passed at the same session. The court said: “In determining which is the law of the land, we know of no other rule of construction than that the last-expressed will of the Legislature must prevail.” In Elliott v. Lochnane, ubi supra, it is said: “This rule of construction is announced in many cases, English and American, and controverted in none.” A palpable case of conflict -between sections in the same act occurred in Powers v. Barney, ubi supra. The act of Congress of March 2, 1861, in its nineteenth section, imposed-a duty of ten per cent ad valorem on Peruvian bark. But in the twenty-second section, Peruvian bark was in the exempt list. Nelson, J., referring to the incongruity, said: “Each party found an authority for his claim in the same act of Congress,” and solved the difficulty on the well-settled rule of construction, accepting the last provision as speaking the final intent of the law-maker.
The very question in hand was raised in Johnson v. Byrd, Hemp. 434. There was an irreconcilable conflict between two sections of the Code of Arkansas. Preference was given by the court to the one last approved. After a careful examination of the Code of Arkansas alluded to, I find that it was matured by the Legislature and adopted in the same manner as our revision in 1871. Each chapter was'acted upon and approved separately. Thus, chap. 1, title “ Abatement,” was approved December 9, 1837. . Chap. 2, title “ Accouut,” was approved November 29, 1837. In the case cited, a sec
Another rule is, that where two statutes relate to the same subject-matter, though not in terms repugnant, if the later one is intended to prescribe the only rule, it will repeal the former. Swann v. Buck, 40 Miss. 268; Sacramento v. Byrd, 15 Cal. 294; Davies v. Fairbain, 3 How. (U. S.) 636.
' I will now direct attention to the application of these principles, as illustrated in the .cases cited, to the conflicting provisions of the Code. We all agree that when the husband dies intestate, without children, or the descendants of them, the Code gives to the widow, surviving, repugnant and inconsistent interests in his estate. In such circumstances, sect. 1788 confers on her the entire estate, real and personal, whereas sects. 1281 and 1282 give to her one-half. Reconciliation on any rational principle of interpretation is impossible. Sect. 1788 is part of chap. 23, which was approved April 17, 1871; sects. 1281 and 1282 are parts of chap.. 9, 'approved May 13, 1871. . These sections are parts of a series of twelve sections, enacting the rights and interests of the widow and the surviving husband in each other’s estates, real and personal. These provisions apply to the various contingencies and conditions stated, both in cases of testacy and intestacy. The subject, in the circumstances therein treated of, was deliberately considered by the Legislature, and the measure of interest which the survivor should take in the property, real and personal, of the deceased is carefully detailed. Sect. 1281 deals with the case of testacy unsatisfactory to the widow, where she has renounced the will, and of intestacy, and determines her interest in the estate, if there be no child or children, nor descendants of them, of the testator or intestate. The next section fixes her rights, in the same circumstances, to the personal estate.
Those sections which give the widow half the estate were adopted nearly a month after sect. 1788, and are the latest expressions of the legislative will, and musk prevail, unless
It is said that the Code was adopted by the Legislature uno flatu, and speaks with a simultaneous voice in all of its provisions. That is true in the same sense and to the same extent of any. ordinary statute consisting of several sections, enacting the law on a particular subject. The act, as a whole, is put to the vote of the respective houses of the Legislature; if it receives a majority of the voices, it has passed (as we say), and when that fact is certified to the governer, he approves it as a whole, and it becomes law. And yet, if we find a later section in such act repugnant to a former one, the later must be accepted as repealing the former.
A statute is the will of the law-making power, in the same sense that a testament is the will of a testator. The latest declaration must be accepted as the final intention and purpose.
If we could regard the Code (for the purposes of considering the point) as one statute, and that the mind of the Legislature was expressed in the order in which the several sections are enumerated, then the conclusion would be inevitable that a later section, irreconcilable with a former one, would, by necessary implication, repeal it. But an analysis of the first chapter, providing for its adoption and publication, in connection with the enrolled bills, makes it impossible to apply that rule in its construction. The chapters, as published, are not numbered as they were passed by the Legislature. As adopted, each chapter contained sections numbered from one on, consecutively, to its close. As published, the sections are enumerated from one, consecutively, to the end of the Code. This change in the order of the enactment of the chapters and enumeration of the sections was brought about by the eleventh section of the first chapter, which conferred power on the commissioner who should be designated to supervise the publication of the Code, “ to rearrange the chapters by numbers, and to remodel the sections, numbering them
It is plain that no more was intended by this eleventh section than to intrust to the judgment and discretion of the commissioner the rearrangement of the chapters and sections, without regard to the order of time in which they were severally enacted; and the order in which we may find particular sections placed affords no test or guide of whether one is an earlier or later expression of the legislative will on the subject.
But if there be in the Code, as published, or in the enrolled chapters in the secretary of state’s office, other clear and conclusive evidence, proper and competent to be consulted, as to the time when particular conflicting provisions were enacted, it is the duty of the court to .consult it. The date of an act of the Legislature is the time when the governor approved it.
We know, from an inspection of the published volume, that each chapter of the Code was passed by the two houses and approved by the governor as “ separate acts.” When the sixty-six chapters (which compose the Code) had been thus passed and approved, they had force and effect as laws, without any thing more. The eleventh section of the first chapter, as already remarked, had the single object in view of an orderly arrangement and publication. There is this curious anomaly: The first section of the first chapter declares that the Code shall consist of that chapter “ and the following entitled chapters, to wit.” Then follows an enumeration of sixty-one; whereas the Code, as published and as adopted by the Legislature, contains sixty-six chapters, — five more than those enumerated. These five additional chapters were “respectively approved” May 13th, April 22d, May 3d, 10th, and 12th, and are undoubtedly of equal force with the sixty-one named in the first chapter.
The final section of the several chapters is, “ that this act shall take effect on the first day of October, 1871;” so that,
From this review of the mode and order . of adopting the statutes, arranged into chapters according to the subjects, each chapter separately considered by the two houses, adopted by them, and approved by the governor, we must construe this entire legislation as passed at the same session, and if one part is irreconcilably inconsistent with another, give effect to that which last had the sanction and consent of the lawmaker. As we have seen, the last section of a single act prevails over a prior one, though the act as a whole was approved on its final passage through the Senate and House of Representatives, and approved as a whole by the governor; because the courts must assume that, in construing and arranging the plan of the act, the legislative mind expressed its ultimate purpose in the later section. In such case, the courts lay hold of the numerical order of the parts of the law as the test.
We have seen, also, that the same rule obtains in the construction of a code, where its materials are built up in consecutive order and arrangement.
But the Code of 1871 furnishes incontestible evidence that the various subjects were considered in separate acts, called chapters, and that each subject and chapter received legislative sanction on a particular day; and there is, therefore, no difficulty in determining the precise day when a particular part of the Code was adopted. If that can be ascertained, we must declare that the enactment of a later day annuls the inconsistent enactment of a former day.
It follows, then, that those sections which give the widow one-half of her husband’s estate, when there are no children, or descendants of them, having been adopted by the Legislature twenty or more days after the section which gave her all, must be construed as a repeal of the older and prior section by implication.
Sect. 1281 applies to dower, and gives the widow, as her dower, one-third of the real estate of which the husband died
Sect. 1283. Where the estate of the testator or intestate is insolvent, the widow shall only be endowed of one-third of the lands.
The conjoint effect of the two sections is,, to endow the widow (for life) in every-case except one, —that is, whei-e there is no child or descendant, etc,., when she takes one-half, in fee-simple.
Sect. 1788 applies to the case of a husband who dies intestate. “ His widow shall be entitled to his entire- estate, real and personal, in fee-simple, after payment of debts. But if there be a child or children, by that or a former marriage, or descendants, his widow shall only be entitled to dower, and shall have a child’s part of the personal estate.”
Sect. 1948 prescribes the course of descent of land (not devised), — namely, to the children and their descendants; and on failure of them, then to the next of kin. The widow is altogether pretermitted.
Sect. 1949 provides for her by saving to the widow, in all cases, her dower.
The precise question we have to deal with is, the right of the widow in lands of which the husband died seized, without children of that or any other marriage.
Under sect. 1948, the land would descend to the next of kin, subject to the dower of the widow, in all cases. The extent of the dower is defined by sects. 1281 and 1283. Under the former, she would take as her dower one-half of the land in fee-simple ; unless the estate should be represented insolvent, when, under the latter, she would take as dower one-third of the land, — only a technical dower estate for life of dowress.
It is plain, from this comparison of the several provisions of the Code, that section 1788 is directly, in conflict with sect.
I cannot attach any special importance to the words “ as dower,” “ in fee-simple.” It is only meant to declare what estate the widow shall take. She takes by operation of the statute, as widow, one-half in fee-simple, as she takes in other circumstances, as in sect. 1283, one-third for life. By whatever name her estate may be called, she takes an estate as widow, under the several sections of the statute, which are absolutely inconsistent, irreconcilably repugnant. She cannot take both estates.
Dissenting Opinion
dissenting.
None of the provisions of the Code of 1857, in reference to dower, were embraced in the Code of 1871 as submitted to the Legislature, a much more satisfactory provision having-been made for the widow, according to the view of the codifiers. The Legislature adopted so much of the work of the codifiers as gave to the widow all of the real and personal estate of her deceased husband, who had died intestate and left no child or children, or descendant of them, after payment of his debts, but rejected their proposal to drop the provision of the Code of 1857 on the subject of dower, and adopted, as pai-t of the Code of 1871, sects. 1281, 1282, and 1283, from the Code of 1857, thereby introducing verbal conflict in the several provisions on the subject. In order to avoid the imputation to the. Legislature of folly and absurdity, we must atti’ibute this result to inadvertence.
These sections are contained in different chapters of the Code. That which gives the widow all of the estate of her deceased husband, who dies intestate, without child, or descendant of such, is found where it would naturally be looked for, — in the chapter regulating the relations of6 ‘ Husband and Wife,”—
The different chapters of the Code were approved at different times. That embracing sect. 1788 was approved April 17, 1871, and that containing sect. 1281 on the 18th of May, 1871.
The chapter ‘ ‘ To provide for the adoption and publication of the Revised Code of Mississippi,” and which declares of what chapters the Code shall consist, was approved on the 12th of May, 1871, one day before the approval of the chapter containing sect. 1281, and many other chapters, thus exhibiting the anomaly of adopting by anticipation several chapters which had not been approved, the fact being that these several chapters had been passed by the Legislature, but had not been approved by the governor, who subsequently approved the general chapter adopting the Code before he approved many of the chapters it adopted.
While the several chapters afterwards wrought into the Code were passed by the Legislature and approved by the governor at different times, it was not the purpose of the Legislature that these chapters, severally adopted, should take effect as independent acts by virtue of their approved, but the scheme was to make a Code, a complete whole, a harmonious body of statute law. To this end, the parts were considered and adopted, not to take effect as parts, but to be framed together, as was attempted to be done by the first chapter of the Code, into a whole. This final act of construction adopts as parts of this Code the chapters containing the contradictory provisions for the widow of an intestate dying without children, or descendants of them.
We are not at liberty to-consider the numerical order of the sections as containing the earlier or later expression of the will of the Legislature;'because the Legislature itself did not have regard to this, as evidenced by the fact that by sect. 11 of the adopting act (chap. 1 of the Code) power to rearrange chapters and to remodel the sections was conferred on the commissioner to be appointed to superintend the publication of the Code.
There is no place for an attempt to apply the doctrine sometimes applied to repugnant provisos and saving clauses, for it would • be entirely arbitrary to determine which is the purview and which the proviso or saving clause, or either.
The Code is to be viewed as a whole. It is to be considered as one act of the law-malting power. • Part is -to be compared with part, and each with' every other, to ascertain, if possible, the intent of the law-makers. Their intent is to be gathered from what they have said.
Uno jlcitu, in adopting the Code, they have declared that, in a given state of case, the widow shall have half and she shall have all of her husband’s estate. Which declaration shall prevail ? As between the two, no preference can be given to one over the other, except by an arbitrary election. In no other way can full effect be given to all that the Legislature has declared, except by giving the widow all. Thereby she gets half as included in the whole, and thus she gets the larger provision made for her as comprehending the smaller; and both provisions of the Code on the subject are satisfied.
By reference to the law of descent, sect. 1948 of the Code, it is seen that the general rule established is, that the undevised estate of one dying without children, or descendants of children, descends to the brothers and sisters, or, if none of them or their descendants, to other enumerated kindred of the intes
If it is asked, Why prefer the widow to the heir by enforcing the broader exception in her favor ? the answer is, she is not preferred to the heir, except to the precise extent declared by the Legislature ; and to limit her to the narrower exception in her favor is to prefer the heir to her, in defiance of the legislative declaration in her favor. I so construe the several sections of the Code relating to this subject as to harmonize and give eifect to all, as far as possible. The Legislature having declared against the heir, in favor of the widow, in one provision, and in none having declared expressly in favor of the heir as against the widow, I think we cannot, in favor of the heir, deny to her the benefit of the broader provision the Legislature has made for her.
The true view of the three sections —1948, 1788, and 1281 — is that, where there is no widow, the brothers and sisters, or other enumerated kindred of the intestate, will inherit his estate ; but if he leaves a.widow, she shall inherit all, after payment of debts, for the Legislature has said she shall have the half and the whole, and so the manifest legislative will,
Sect. 1788 is a new provision, not contained in the former law, but adopted for the first time in the Code of 1871. The other sections mentioned were in force before. It must be assumed that sect. 1788 was introduced to effect what it provides for. It surely cannot be expunged from the Code; and, being there, it must have some effect, and it cannot have the force its plain language imports except by securing to the widow all of the estate of her husband in the state of case for which it provides. This construction accomplishes all that the Legislature has declared in favor of the widow. No other does.
Sects. 1788 and 1281 provide for different states of case, and each has an effect independent of the other. Sect. 1788 secures to the widow all of her husband’s estate, after .the payment of his debts. Sect. 1281 secures her dower, which is regardless of the debts of her husband, except as affects the quantum of his estate which she shall have as dower. Under sect. 1788 she may not be entitled to any thing, because of the consumption of the estate by debts, and then she may claim dower under sect. 1281. By sect. 1788 she would be entitled to a remainder vested in her husband, to be enjoyed after a particular estate of freehold, not terminated at his death, while as to such estate of her husband she would not be entitled to dower, because of want of seizin in her husband. By sect. 1281 she might claim and have dower in lands conveyed by her
The rule of resorting to the later clause of a will or statute, as indicating the later intention of the testator or lawmaker, is purely arbitrary, and to a great extent fanciful, springing rather from the necessity of some rule than from any just reason, and is not to be applied to the defeat of the manifest purpose of the testator or law-giver, where that can be collected from the context.
The question is, What was the intention of the maker? Ascertain that from all that is said, and mere words must give way to the higher purpose of effectuating the intention. Rejection, transposition, restriction of the meaning, enlargement, every device, will be employed to prevent a defeat of a clearly manifested primary purpose, and to secure the object had “ most at heart ” by the testator or law-maker. It is manifest that, in adopting sect. 1788, the Legislature had in view sect. 1281, for the former provides that where the deceased husband shall leave a child, or children, or descendants of such, his widow shall in that case be entitled only to dower ; evincing clearly a consideration of the subject of dower in the very act of securing to the widow all of her husband’s estate after payment of debts, where he should leave no child, or descendant of such, and maintaining the view that the Legislature did not regard the provision for dower, in sect. 1281, as abridging the rights secured to the widow by sect. 1788, but had both in mind, and intended one for one state of case and the other for another, so that the widow should surely be provided for by .getting all, after payment of debts, or, if that did not avail, by getting dower. The widow may elect to take
Upon the application of Frank Johnston and H W. Walter, of counsel for the appellees, the court granted a reargument of the case.
W. 8. Featherston and F. M. Watson, of counsel for the appellants, again argued the case orally.
Manning, Watson <& Moore, on the same side, filed a brief.
H. W. Walter and Frank Johnson, of counsel for the ap-pellees, argued the case orally, and also filed a brief.
The judges adhered to their respective opinions delivered on the first argument.
