17 Pa. 449 | Pa. | 1851
The opinion of the court was delivered by
The 11th section of the Act of 1833, relating to last wills and testaments, enacts “that a devise or bequest by a husband to his wife of any portion of his estate or property shall be deemed and taken to be in lieu of and bar of her dower;” “ provided that nothing herein contained shall deprive the widow of dower, or of the estate or property so devised.” If the word dower in the proviso is construed to mean dower at common law, so also must' it be construed in the enacting clause. It would seem, therefore, that the wife is only barred of her dower at common law, if she accepts under the will. As to any part of the personal estate remaining undisposed of by the will, she would take her purpart or share under the intestate laws, not being barred by the statute, either in its letter or its spirit: In Leinaweaver v. Stoever, 1 W. & Ser. 160, it was held that the acceptance by a widow of her share under the intestate laws did not bar her from recovering dower of land aliened by her husband in his lifetime. There is a pretty strong analogy between that case and the present. The former exhibiting the tendency of our courts to favor the claim of the widow to her full share under our statute
It was vehemently contended at bar, that this Act was unconstitutional, because the rights of the wife are fixed and vested at the time of the marriage; and that this Act alters and changes those rights, and essentially interferes with them as well as with the vested rights of the husband. Rut we know not where the parties
There is no constitutional provision guarding the common law right of dower; it is not part of the marriage contract. It results from wedlock by the operation of existing laws at the time of the husband’s death. The act of 1848 is perfectly constitutional ; we give it no retroactive operation; it violates no vested right. If the doctrine of the respectable counsel was sustained, it would upset many estates in the Commonwealth.
A doubt has been expressed whether this Act does not confine the election of the widow to the personal estate alone. I cannot entertain such a doubt. But I am instructed' by the court to express no opinion as to the real estate. Indeed the proper parties are not before us, that is, the devisees of the realty. It is the executor in his character of executor, representing the personal estate, and the widow, who are the contestants about a matter which does not involve the distribution of the real estate.
But the widow is entitled to elect not to take under the will, in which case she will be entitled to take her share or distributive part of the personalty, beyond all doubt or cavil. And in order that she may be enabled to make that election with a full knowledge of the circumstances of her husband, she is entitled to a fair account of the personal estate by the executor. By petition to the court she impeaches the inventory and account furnished and filed by the executor, which petition is verified by her oath.. Her application to the court is under the 22d sec. of the Act of 29th March, 1832, which requires the removal of an executor who does not file a true-inventory “upon the application of any person interested. The widow is interested; has a good standing in court, and is entitled to have her cause proceeded in to final judgment on the merits. There is nothing in the objection that the widow did not apply for, the appointment of an examiner. Our Orphans’ Courts do not proceed exactly in conformity with chancery forms. The widow' did a-pply for the appointment of an auditor to examine and report upon the facts involved in the petition and answer. But the court refused to appoint an auditor, and dismissed the petition, because the widow was not a party in interest. In this there was error. I say nothing of facts spoken of in the argument as to property and effects, stocks, &e., which the testator ought to be
The only question strictly before this court, is whether the widow, under the Act of 29th March, 1832, is a “person interested” and entitled to a standing in court under its provisions. We think she is.
Decree reversed and procedendo awarded.