Guice v. Guice, 43 So. 199

Guice v. Guice

43 So. 199 | Ala. | 1907

Lead Opinion

MoCLELLAN, J.

Jason Guice died, leaving an. estate consisting of real and personal property, but without. lineal descendants. His widow, Stella D. Guice, survives. She possessed, at his death, a statutory separate estate greater in value that her dower interest, estimated as provided by section 1506 of the Code of 1896, but of less' 'value than that of the personal property, and, of course, of less Aralue than the aggregate Aralue of the personality and such dower interest. The specific question propounded by this appeal is: . “Does section 1506 deny, under these conditions, dower to this widoAv?”

Section 1462 adopts, .as the rule governing the distribution of. personal property of intestates, section 1453, except the aaNIoav, if there are no children, is entitled to the whole o.f it. Prior to the Code of 1896 the widow,, where there Avere no children, or only one child was entitled to only one-half of the personal property left by the husband. Section 1505, 1506, and 1507 seem *556to have come down, substantially without change, except as suggested by Dubose’s Case, 38 Ala. 238, from the Code of 1852. Section 1505 fixes the extent of the dower interest, and sections 1506 and 1507 relate to the effect of the possession of a separate estate upon dower and distribution. It is manifest that sections 1506 and 1507 are not distinct laws. It is also apparent that, while they may work exceptions to the law of dower and distribution, as that law is found in sections 1505 and 1462 of the Code, they are parts of a harmonious system. Sections 1506 and 1507 assert the effect of two conditions upon the dower and distributive rights of a surviving widow. The former declares what shall be the effect when the value of the separate estate owned by the widow equals or exceeds in value the dower interest (estimated as therein provided) and the distributive share. The latter section declares what shall be done when the value of such separate estate is less than the value of the dower interest and distributive share. To state their meaning more clearly, the former (section 1506) directs that when the value of the separate estate of the widow, less rents, incomes, and profits, is equal to or greater than the sum of the estimated value of the clower interest and the value of the distributive share, then she is entitled to no right of clower in or distribution of her husband's estate. The latter (section 1507) directs that, when such separate estate is less than the sum of the values of the estimated dower interest and distributive share, she shall be allowed, so much as will, when added to the value of hér separate estate, canal the value of her estimated dower interest and. distributive share.—Dubose v. Dubose, 38 Ala. 238.

The intent of the Legislature was to correct the injustice of allowing a widow the full bounty prescribed when she has in her own light a separate estate of greater or equal or less valué than the personálty distributable to her and the dower interest as fairly estimated. This purpose appears plain. These sections do not contemplate a case where there is no possible dower interest, nor a case where there is no personalty to be distributed. But they do contemplate all cases where *557there is present a surviving widow, an estate out of which dower may he taken and personalty distributed, and the widow possesses a separate' estate. The absence of any one. or more of these elements defeats the application of these statutes (sections 1506 and 1507) to such case.

The solicitors for appellant and appellees both urge upon the attention of this court the case of Mueller v. Mueller, 127 Ala. 356, 28 South. 465, as decisive, in some respects, of this appeal. In that case John L. Mueller died, leaving an estate consisting of -personal property only. It was sought there to defeat distribution to the surviving widow by the application of section 1506, but this court very- properly held such statute inapplicable. However, we are of the opinion that the court reached its conclusion, undoubtedly sound, upon an incorrect reasoning, viz., that the term “distributive share,” as used in section 1506, can operate only where there is more than one distributee. We think this construction too narrow, and, besides, it practically reads into sections 1506 and 1507 the condition, not there written, that such sections shall not be applicable where there is not more than one distributee. “Distributive share” means the share a person takes of personal property in case of intestacy. Unquestionably it was within the legislative authority- to set conditions upon dower and distribution to widows possessing separate estates, and we are unable to see how ihe conditions fixed by-sections 1506 and 1507 make, a case of conflicting provisions, requiring an effort at reconciliation. In order to justify the construction placed upon the term “distributive share” by- Mueller’s Case, supra, it must be held that by- implication the enlargement of the widow’s share of the personalty- by Code 1886,' § 192-4, had the effect to alter, without reference, the theretofore, then, and now existing provisions of lav- re-enacted in sections 2354 and 2355 of that Code.

The decree of the chancery- court is not in accord with the conclusions here announced, and must be reversed; and that court will proceed in the premises in *558accordance herewith, to which end the cause is remanded.

Reversed and remanded.

Haralson, Dowdell, Simpson, and Anderson, J.J., concur.

Dissenting Opinion

•Tyson, C. J., and Denson, J.

(dissenting.) — -We hold the view that, as Mrs. Guice was entitled to the entire personal estate of her husband, sections 1506 and 1507 of the Code have no application, and, therefore, her quantum of dower interest is not, and cannot be, affected by them. Those sections only apply when the decedent leaves a child or children who “share” with the widoAv in the distribution of the husband’s personal estate.—Mueller v. Mueller, 127 Ala. 364, 365, 28 South. 465.