Jordan v. American Security & Trust Co., 38 App. D.C. 391

Jordan v. American Security & Trust Co.

38 App. D.C. 391 | D.C. Cir. | 1912

Mr. Justice Robb

delivered the opinion of the Court:

The first question presented for our consideration is whether the bequest to Mrs. Woodbury was of such a character as to require a renunciation and election on her part. The protection of the wife and the securing to her of a reasonable portion of her husband’s estate has ever been the policy of the law. No citation of authority is necessary to sustain this proposition. Under the common law obtaining in Maryland, a husband was not permitted to deprive his wife of her reasonable share of his estate, either directly or indirectly, and a bequest to the wife was not considered in lieu of her legal interest, she taking both. Griffith v. Griffith, 4 Harr. & M’H. 100, 120; Coomes v. Clements, 4 Harr. & J. 480. The provisional assembly of Maryland finally changed the rule of construction, so that the widow was required to elect between the testamentary provision and her legal share. Acts of 1699, chap. 41; 1704, chap. 20; 1715, chap. 49. In the Act of 1729, chap. 24, secs. 10, 11, which was a practical re-enactment of prior legislation, it was provided: “Where a testator bequeaths or *395devises a considerable part of his personal estate to his wife, and it appears not in any part of his will or codicil that he intended his said devise as a legacy only to his wife, and that she might nevertheless have the third part of his remaining estate, it shall be at the election of snch wife * * * to make her election,” etc. In 1798 the so-called testamentary act was passed in Maryland. In this act prior legislation relating to the rights of widows to the real and personal estates of their deceased husbands was revised and codified. 2 Kilty Laws (Md.) 1798, chap. 101, subchap. 13. In Coomes v. Clements, supra, the court said: “The several acts of assembly relating to the right of the wife to a part of the personal estate of her deceased husband, commencing with the act of 1699, down to the act of 1798, contain a clear, unequivocal, and explicit recognition of that principle of the common law which allows to the wife a reasonable part of the personal estate of her deceased husband. * * * If the deceased makes a will, and makes no bequest of any part of his personal estate to his wife, or an invalid or inoperative bequest to her, and dies, leaving a wife and no child, she shall have one half of the personal estate, because, as respects his wife, he died intestate; and this is in accordance with the decision in the case of Griffith v. Griffith, and is the just and sound exposition of the act of 1798, which declares that it is consonant to justice that a widow accepting or abiding by a devise, in lieu of her legal right, shall be considered as a purchaser with a fair consideration, if the devise proves invalid or inoperative. A purchaser of what? Her share or legal right, because that which was intended as an equivalent has proved to be of no value, and he dies intestate of his personal estate as to his wife.”

Secs. 1 to 5, inclusive of subchap. 13, chap. 101, of said Act of 1798, became without material alterations secs. 1172 to 1176, inclusive, of our Code [31 Stat. at L. 1376, 1377, chap. 854]. Sec. 5 in the Maryland act provided that “if, in effect, nothing shall pass by such devise, she [the widow] shall not be thereby barred, whether she shall or shall not renounce as aforesaid, it being the intent of this act, and consonant to justice, that a *396widow accepting or abiding by a devise, in lieu of her legal right, shall be considered as a purchaser with a fair consideration.” This section became sec. 1176 of our Code, the phrase, “and consonant to justice,” being omitted.

An examination of sec. 1176 and the four sections immediately preceding it shows that devises and bequests were used interchangeably in those sections. * Thus, sec. 1173 referred to “renunciation of bequest,” which includes both devises and bequests. Sec. 1174 refers to “devise of both realty and personalty;” and sec. 1175 to “devise of either realty or personalty.” The last provision in this section being “that if the devise of either real or personal estate, or of both, shall be expressly in lieu of her legal share of one or both, she shall accordingly be barred, unless she renounce as aforesaid.” Sec. 1176 therefore applies equally to devises and bequests.

The recital in Dr. Woodbury’s will that his wife had been “satisfactorily provided for” out of his estate, as per the equity decree mentioned, was not in accordance with the facts. According to that decree, Airs. Woodbury thereby regained possession of about $6,000 of her own property. The situation *397confronting us therefore comes to this: A husband with a personal estate amounting in value to about $20,000, half of which would vest in his wife in the absence of a will, leaves a will in which he in effect says that, having previously satisfactorily provided for her out of his estate, he leaves her $10. This recital is found to be incorrect and untrue. Must the widow, in such a situation, file a renunciation, and thereby, instead of taking one half of the personal estate to which she would have been entitled but for the will, take only one third under the provisions of sec. 1173 of the Code? In other words, must the widow, because of such a mistake or subterfuge on the part of her husband, be deprived of the difference between one half and one third of his personal estate ? Such could not have been the intent of Congress in adopting the Maryland statute, since such was not the rule in Maryland. There, as we have seen, if that which was intended by the husband as an equivalent turns out to be in effect of no value, he is deemed to have died intestate of his personal property as to his wife. Any other rule thwarts the obvious purpose of the statute, when it is considered in the light of its history. '

In the bequest under consideration the husband in effect *398says that, having already satisfied his wife’s legal claim upon his personal estate, by giving her $6,000, he now gives her $10, — a pure gratuity. The testator himself having declared $6,000 as a fair equivalent for the legal claim of his wife upon his personal estate, and it developing that, if his will stands as to her, she will have received not $6,010, but $10, we think the conclusion is warranted that the 10-dollar bequest is nominal in character, and that in effect nothing passed tg the wife under the will. We are not at liberty to indulge in any presumptions as to a prior arrangement between husband and wife, because the testator has informed us why he made such a small bequest to his wife. Instead of being a gratuity or sum in addition to that already bestowed, the $10 really constitutes the entire provision which the husband has made for his wife out of a personal estate of the value of $20,000. As a gift, as something additional, something not necessarily measuring and satisfying a legal right, a 10-dollar bequest would be viewed in a different light. Here the disparity between the $6,010 which the will represents as satisfying the widow’s legal right, and the amount actually passing to her, is so great as to warrant the conclusion that the testator regarded the latter sum as a nominal, and not an actual, satisfaction of the claim of the wife.

We are not to be understood as holding that a bequest of $10 under other and different circumstances would not put a widow to an election. What we do hold is that where it may be determined, as here, that the $10 was intended as only a nominal satisfaction of the “legal right,” to use the words of the statute, of the widow in the considerable personal estate of her husband, the widow is not called upon to renounce. By accepting such a bequest, she could not “be considered a purchaser with a fair consideration.”

Our conclusion upon this branch of the case renders' it unnecessary to determine the remaining assignments of error.

The decree is reversed, with costs, and the cause remanded for further proceedings. Reversed and remanded.