6 Ala. 236 | Ala. | 1844
-Before entering upon the consideration of our statutes which define the right of the widow to dower in the real, and distribution of the personal estate, and compels her to elect between the will and legal provision, it is proper to consider whether the will before us makes any provision for the widow; and if it does, whether it was intended or has the effect to bar her claim to dower and distribution, or to put her upon an election.
1. In the construction of a will, the great object to be ascertained is the intention of the testator; and, when discovered, that will always prevail, if not inconsistent with the rules of law. The clause of the will of which the intention is to be ascertained, is this: “ That all my property, both real and personal, of which I am now possessed, or may hereafter accrue, be re-
The intention is clearly expressed, that his real and personal estates shall go to the same persons; and, when reference is had to the general intention of the testator, it leaves no reasonable doubt that his wife was intended to be included in the general term lawful Heirs. It is possible that, if this was a devise of real estate only, the proper construction of this term, uncontrolled by the obvious intention that there should be no division of the estate, would be to confine it to the heirs at law; but when it is used with reference to the personalty, it means next of kin, unless this meaning is controlled by the context; because the next of kin are the only persons appointed by the law to succeed to personal property. [Holloway v. Holloway, 4 Vesey, 649; Lowndes v. Stone, 5 Vesey, 403; Vaux v. Henderson, 1 J. &
The only doubt we have had of the correctness of this construction, was, that on the first reading of the will, it seems to convey the idea that the estates of those entitled to the personal property was not to vest until the youngest child became of age; in which event, the children and widow would have no present interest in it, but the estate would vest in and be divisible between such persons as should then answer the description of lawful heirs. Independently of the fact, that such a construction is directly counter to what we have ascertained is the general intention of the will, it would defeat the particular and expressed intention that the personal and real estates should go to the same persons. It is said, a bequest of personal estate to a person when he becomes of age, or to several, to be divided among them at a particular period, does not vest until the period arrives; and that there is a difference in this respect in the construction of bequests and devises, growing out of the circumstance that courts ef equity take their rules of construction from the civil law. [Machen v. Reynold, 14 East, 601; Hanson v. Graham, 6 Vesey, 239; Stapleton v. Cheales, Pre. Chan. 317.] But a devise in the same terms vests an immediate interest. [Goodtitle v. Whitley, 1 Burr. 228.] The rule of the civil law, with respect to bequests, only applies, however, when there is nothing in the context of tie will to explain the intention; and, therefore, a direction to apply the interest of the fund bequeathed, has been held a sufficient in
From what has been said, it will be apparent that our conclusion is, that under the will the widow took an absolute vested interest in one-sixth part of the testator’s real and personal estates, to be divided at a future period. No question is raised as to the extent of her present interest in the income derived from the labor of the slaves on the plantation; and, therefore, no opinion is given on that subject.
2. We are next to inquire, if this provision in the will is inconsistent with the legal right to dower and contribution, and was intended in lieu thereof. The rule in equity, which governed previous to any legislation on this subject, is, that to put the widow to the alternative of either waiving her interest under the will, or foregoing her right to dower in the lands of her husband, it must be clearly evinced that her taking both interests will defeat the general intent of the devisor. [Powell on Dev. 466.] Roper says, the rule, as settled by modern decisions, requires that, in order to deprive a widow of dower, it must be shown that the testator intended to exclude her from, it; as, for instance, where there is an inconsistency between her claim of dower and the disposition of the estate by the will. [2 Roper on Leg. 414.] In Foster v. Cook, [3 Bro. C. 347,] Lord Thurlow held, that the widow ought not to be put to her election, but by express language, or an inference which Was irresistible. What circumstances will authorize such an inference, is exemplified by many cases. Thus, in Villa Real v. Lord Galway, [1 Bro. C. 292,] there was a devise of an annuity to the widow for life. All the testator’s estates were subjected to this annuity, and devised to trustees in trust to permit his daughter to receive all the rents. Lord Camden held the widow to an election, inasmuch as the allowance of dower would be inconsistent with the devise. So, in Chalmers v. Stovil, [2 V. & B. 222,] a devise of lands, in which the widow was entitled to dower, to her and two others, to be equally divided between them, was considered a case for election. Other cases of similar import might be cited, but these are satisfactory to show that the bequest and devise here of property, in which the widow was entitled to contribution and dower, to her and others, to be all equally divided between them,
3. The question next in order is, whether, as a provision is made by this will for the widow, and intended in lieu of dower and contribution under the statute, she is compelled to abide by it, inasmuch as she has never signified her dissent from it either in the county or superior court of her residence. The words of the act, so far as they relate to this subject, are these: « When any person shall die intestate, or shall make his last will and testament, and not make therein any express provision for his wife by giving and devising to her such part or parcel of his real and personal estate as shall be fully satisfactory to her, such widow may signify her dissent thereto in the superior or county court, in the county where she resides, at any time within one year after the probate of such will; and then and in that case she shall be entitled,” &c. — going on to declare she shall be endowed of one-third part of the real estate of which her husband was seized during coverture, for the term of her life; and one-half of his personal estate absolutely, after paying his debts, if there be but one child; a child’s part, if there be less than four children; and one-fifth, if there be more. [Clay’s Digest, 172, § 3.] Our impres*
4. The application of what has been said to the case before us, will show that the county court should have declined jurisdiction. The will of McIntosh was admitted to probate in that court in January, 1838, and letters testamentary granted upon it. It was thus, as a court of probate, in possession of the will, and no allotment of dower or distribution could be made as in case of intestacy, or if, as there was no provision for the widow, because such a. course would be inconsistent with the will; and the jurisdiction could only be revived by causing it to appear that the widow had signified her dissent from its provisions within the year, in the manner provided by the act. The defect of jurisdiction appealing from the records of the court, the question was necessarily involved in the demurrer to the petition, which, in our opinion, ought to have been sustained upon this ground. The demurrer to the plea, by the administrator, that the estate had not been settled, would bring that point of the case within some expressions used by us in the case of Ex. of Green v. Green, [7 Porter, 19;] but, as the point was not raised in that case, and is not there decided, we choose to confine our present decision to the demurrer to the petition; and this the rather because the influence of the statute which authorizes distribution of an estate after eighteen months, [Clay’s Digesf, —,] was not then-, considered.