2 Vt. 329 | Vt. | 1828
delivered the'opinion of the Court.: — The plaintiffs claim the lands in question under a decree of the court of probate assigning them, with other lands, to Rebecca Hendrick, as her share of the estate of Alexander JDonihue, her former husband. The defendant occupies the lands as tenant to the inhabitants of Morristown, who claim title to the lands under the last will and testament oí JDonihue Joy which he divised the lands to them to be rented for the support of schools,and disposed of all his other estate, both real and personal, making certain bequests and devises to his wife in lieu of dower. The testator having died without issue, the widow, after probate of the will, waived the provision made for her therein, and claimed one half of the estate; and the court of probate, by a committee appointed for that purpose, assigned and set off to her, certain parcels of the estate, including the lands in question, being one half in value of all the real estate of which the testator died seized.
The decision of this case must depend upon the construction of the act, for the prolate of wills and the settlement of testate and intestate estates, passed in 1797, and the act, declaring the widow of testators entitled to dower, passed in 1799. (Comp. Stat. olded.p. 119, 165.J These acts were in force at the time of the decease of the testator ; and though they were suspended and repealed by the law of 1821, it was provided, that they should remain in force, as to all things done or transacted during their existence, and all rights and remedies which had accrued under them. By the 1st section of the former act, power was given to every person of full age, and of sound mind, to give, dispose of, and devise, his lands, tenements or hereditaments, by last will and testament in writing, to and among his children, or otherwise, as. he should think fit. By the 32nd section, it was declared, that the widow of any intestate should, in all cases, be entitled to dower, or the use of one third of the real estate, of which
But it is insisted, that where the testator died without lawful issue, as in the present case, his widow, on waiving the provision made for her in the will,was entitled to one half of the real and personal estate forever; and in support of this position, the counsel rely upon the 30th section of the act of 1797. This section, it should be noticed, stood connected as a proviso to the 27th section; and the two sections, therefore, should be read and construed together. The 27th section enacted, that when any person should die seized of any lands, tenements or hereditaments, not by him devised, the same should descend to his children, or their legal representatives, &c.; and if the intestate should have no child or children, at the time of his decease, such estate should descend, equally, to the next of kin, in equal degree, and those who represented them. Provided, as the 30th section declared, that if any person should die intestate, after marriage, or, becoming of full age, without lawful issue, the father being alive, he should be entitled to the whole estate of such intestate ; unless the intestate left a widow; in which case, and also where no father was living at the time of the decease of such intestate, she should be entitled to one half of the real and personal estate forever, after the payment of debts, and other ch'ar-ges and expenses ; which should be in lieu of her dower. The whole scope and object of these sections was to regulate the descent of intestate estates; and the latter section put the widow, where the husband died without lawful issue, in place of an heir to the estate, with the father. But no right accrued to the widow, under this section, only when the husband died intestate, seized of estate not by him devised; and then, she took one half of the estate, not, however, as doiver, but, as it was significantly expressed, in
It follows from what has been said, that as the decree, under which the plaintiffs claim the lands in question, assigned to the widow one half of the real estate in fee, instead oí the use of one third for life, it was unauthorized by law, and clearly irregular; and the only remaining question is, whether the decree is merely voidable, and remains in force until reversed on appeal, or may be treated as absolutely void, and a nullity ab initio. Where a court, which does not proceed according to the course of the common law, but has a special and limited jurisdiction given by statute, proceeds in a manner prohibited, or not authorized by law, the proceeding is void. Thus the decree of a court of probate, if it has exceeded its_ authority may be treated as a nullity. (Smith vs. Rice, 11 Mass. 507.) In Hunt vs. Hapgood, 4 Mass. 117, where the court of probate assigned lands, after the widow’s term of dower in them had ceased, to one of the next of kin, to the exclusion of the others, it was held, that as it appeared on the face of the proceeding that the court exercised a power not given by law, and the defect could not be cured by the allegation or proof of any facts whatever, the proceeding was not merely voidable on appeal, but absolutely void. And in the case of Sumner vs. Park
Judgment affirmed.'