83 Ala. 466 | Ala. | 1887
The only question argued by counsel is, whether a widow, whose husband has died testate, can claim a distributive share of his ■ personal estate, without dissenting from his will, in the manner, and within the time prescribed by sections 2292 and 2293 of the Code, when the will makes no provision whatever for her. Section 2292 provides: “ The widow may, in all cases, dissent from the will of her deceased husband, and, in the place of the’ provision made
Tbe first section of tbe act of 1812 provided: “ When any person shall die intestate, and shall make bis last will and testament, and not therein make provision for bis wife, by giving and devising unto ber such part or parcel of bis real and personal estate as shall be fully satisfactory to ber, such widow may signify ber dissent thereto in the Circuit or County Court in tbe county wherein sbe resides, at any time within one year after tbe probate of such will, and then and in tbat case she shall be entitled to dower.” — Clay’s Dig. 172. The construction of tbe act, as settled by several decisions of. tbis court, was, tbat where no provision is made for tbe wife by tbe will of ber husband, it was not necessary for her to dissent from such will, in order to avail herself of tbe provision wbicb the law makes in her favor.—Green v. Green, 7 Porter, 19; Hilliard v. Binford, 10 Ala. 977; Turner v. Cole, 24 Ala. 304. This construction was rested on tbe doctrine, tbat tbe right to dower is a common-law right, wbicb attaches at tbe instant of marriage, and can not be impaired except by statute; and tbat an election is not required, unless there be alternatives, as to wbicb a choice may be exercised. It will be observed, that tbe statute only provides, in case of dissent, tbat tbe widow shall be entitled to dower; no provision being made by tbis section entitling her to a share of tbe personal estate. Her right to receive a portion of tbe personalty is provided by another section of tbe act, wbicb will be noticed hereafter.
Tbe first section of tbis act, in somewhat different phraseology, and with modifications, some of wbicb are material, was introduced by the codifiers into tbe Code of 1852, as sections 1609 and 1610, wbicb have been incorporated in each succeeding Code, and constitute sections 2292-3 of Code of 1876; but without material change in respect to tbe necessity of a dissent when no provision is made for tbe wife
A different rule prevails as to her right to take such portion of the personal estate, as she would be entitled to in case of intestacy. By the second section of the act of 1812, it was provided: “Where a husband dies intestate, or shall make his last will and testament, and not make provision therein for his wife, as expressed in the first section of this act, she shall be entitled to share in the personal estate,” in specified proportions, dependent upon the number of children. The effect of this statutory provision was to abolish the common-law right of the husband to arbitrarily dispose of his personal estate by will, and defeat the claims of his widow, operating to make her right to a share of his personalty, in case no express provision was made for her, the same as in case of intestacy. When the widow dissented, in the manner and time required by the first section of the act, any provision made for her was regarded as stricken from the will, leaving it to have the same effect as if no provision had been made for her. On this construction of the act, the widow, when she dissented, was held entitled, not only to her dower, but also to her share of the personal
Affirmed.