Slaughter v. Garland, 40 Miss. 172

Slaughter v. Garland

40 Miss. 172 | Miss. | 1866

HaNdy, C. J.,

delivered the opinion of the court.

On the 9th January, 1863, the appellee filed her petition in the Probate Coiu’t, stating that she was a resident of the State of Virginia, and the widow of Samuel Garland, senior, deceased, who died in November, 1861, a resident of that State, leaving no child or descendant of any child surviving him, and leaving a last will and testament dated 7th December, 1857, and seized and possessed of a large estate, real and personal, both in Virginia and in this State; all of which was disposed of in said will, and provision was made therein for the widow. This will was admitted to probate in Virginia on the 2d December, 1861, and the widow filed her renunciation of its provisions in her favor, in the same court where it was admitted to probate, with her election to take her dower and legal share of the estate, on the 6th March, 1862, an authenticated copy of which renunciation and election was filed in the Probate Court of Hinds county, and an authenticated copy of the will was admitted to probate in that county on the 6th November, 1862. The executors residing in Virginia did not qualify in Mississippi, and letters of administration with the will annexed were granted by the Probate Court of Hinds county in this State, to Burr Garland.’ The petition further states that the testator left an estate in Virginia largely more than sufficient to pay his debts, and that he owed no debts in this State of the least consequence. The prayer was for her dower of one-half the lands, and for one-half' of the personalty, under the laws of this State, or for general relief.

The executor filed a demurrer to this petition on sundry grounds, which being overruled, he filed his answer admitting the material facts stated in the petition, but denying the right of the petitioner to demand her legal portion of the estate according to the statutes of this State. The answer was also made a cross-petition, and stated that in January, 1863, the appellee filed her petition ex pcwie in the Probate Court of Hinds county for *178the allotment to her of one year’s provision, and for such property of the testator’s personal estate as was exempt from execution ; and that the appellee was never a citizen of this State, and that such allotment was ordered to be made by the Court, without notice to the executor. The cross-petition also set up other grounds of objection to the appellee’s petition, not necessary to be mentioned. To this cross-petition the appellee filed a demurrer which was sustained. The original petition was dismissed as to the real estate, and, on the final hearing, a decree was rendered in favor of the petitioner for one-half of the personal estate of the testator in this State, except a few specified slaves; and from that decree this appeal was taken.

The first error assigned is the overruling of the appellant’s demurrer to the original petition.

The question presented under this, and also under the third assignment, is whether the widow was entitled to her dower in the real estate, and her share of the personal estate of her husband, according to the statutes of this State, upon the state of facts appearing in the record; and this depends mainly upon the construction to be put upon article 110, Rev. Code, 452, in the following words: “ All personal property situated in this State, shall descend and be distributed according to the laws of this State, regulating the descent and distribution of such property, regardless of all marital rights which may have accrued in other States, and notwithstanding the domicile of the deceased may have been in another State, and whether the heirs or persons entitled to distribution be in this State or not; and the widow of such deceased person shall take her share in the personal estate, according to the laws of this State.”

The first question that arises under the act is, whether any of its provisions are applicable when the deceased dies intestate; or whether they all have not reference to cases of intestacy alone.

The subject-matter upon which the provisions are made is stated to be “ descents and distributions ” of deceased persons’ estates, which words are appropriate to cases of intestacy, but not to those of testacy. It is upon the subject of “descents and distributions ” that the act professes to make provisions. In the *179first clause of it, tlie words employed appear to indicate tbe same intention. „ Tbe terms are, “All personal property situated in tbis State shall descend and be distributed according to tbe laws of tbis State regulating tbe descent and distribution of sucb property, etc., notwithstanding tbe domicile of tbe deceased may have been in another State, and whether tbe heirs or persons entitled to distribution be in tbis State or not.” It appears evident that tbe material words in tbis clause have reference to cases of intestacy alone, and could not, with any legal propriety, be applied to cases of testacy. If tbis clause stood alone, a doubt could scarcely be raised that its provisions were applicable only to tbe estates of persons dying intestate. Does tbe following clause bold a different idea ? It is — “ and tbe widow of such deceased person shall take her share in tbe personal estate, according to tbe laws of tbis State.” Tbis is not a distinct and independent provision for tbe share of widows generally, but refers expressly to a class of widows; that is, tbe widows of “ such deceased persons ” as were embraced in tbe clause immediately preceding, which we have seen are persons dying intestate. Tbe language of tbe act appears, therefore, plainly to contemplate cases of intestacy only.

It is not for us to inquire into tbe reasons which induced tbis legislation, tbe language of its provisions being clear. But it is plain that tbe Legislature thought fit and intended to change the rule then existing as to the descent and distribution of personal property in tbis State, belonging to persons residing in other States, and to establish tbe lex rei sitm, instead of tbe lex domicilM, previously existing, as tbe rule of descent and distribution of sucb property. But they have confined it, by well defined legal terms, to cases of intestacy; and having ascertained that sucb was tbe scope of tbe provision, we have no power to extend it to other cases not within tbe language employed.

But it is insisted that tbe widow bad tbe right to renounce' tbe -will under tbe law of Yirginia, and that she did renounce; and hence, as to her, that tbe estate must be considered as intestate, and she entitled to distribution as if tbe husband bad died intestate.

*180It is a sufficient answer to this to say, that this would not be such a case of intestacy as is contemplated by the statute. For certain purposes, the renunciation of a will by a widow may have the same effect, as to her rights, as if the husband had died intestate; for instance, she would be entitled to her portion under the law, as in cases of intestacy. But with no propriety could it be said that this rendered the estate intestate, and especially in -view of the provisions of this statute. Its object was to establish a general rule for the distribution of property in this State, belonging to persons dying intestate — a rule affecting the entire estate and the interests of all the parties entitled to it. Its language and scope appear to contemplate cases of entire intestacy — that is, a total failure to make a valid will, or a failure to dispose of certain property by it — and a full distribution of the estate to and among all the parties entitled; and there is nothing in it which would embrace a quasi intestacy as to the rights of the widow, created by her renunciation of a valid will.

But the right of renunciation is available only in the proper tribunal of the testator’s domicile. It is an incident to the jurisdiction of the tribunal which has the exclusive power to admit the will to probate, and proceeds from the jurisdiction over the matter of probate. Otherwise there might be a renunciation of the will in a foreign State, while it would be in full force in the State of the domicile; which would be absurd. The tribunal having jurisdiction, both of the probate and of the incident of revocation, is manifestly the proper court of the domicile of the testator.

There is no warrant in our laws for renouncing a foreign will here by exhibiting in the Probate Court here a copy of the renunciation made in the proper court of the testator’s domicile. Such a proceeding could only have the effect of evidence that the renunciation had been made in the proper tribunal, and to entitle the party here to whatever rights she might have by the laws of that domicile, and to affect property of the estate here, through the ancillary administration here. It could not have the effect of a legal renunciation made here, because itis unauthor*181ized by our laws, and because tbe act of renunciation pertains to tb % forum of tbe domicil.

But if it be conceded tbat tbe renunciation in Virginia bad tbe effect to create an intestacy as to tbe widow, so as to entitle ber to ber legal share of tbe estate there, ber rights would be regulated by tbe law of tbat State, where alone tbe renunciation was made in law: and she would not be entitled to distribution under tbe laws of this State; because there is not, and cannot be, any valid renunciation here having a different effect upon tbe rights of tbe widow from tbat of tbe law of Virginia. And this is fatal to tbe claim set up in ber petition to a share of tbe estate according to tbe laws of this State.

We are accordingly of opinion tbat upon tbe petition tbe widow was entitled to ber share of tbe estate, to be allotted according to ber rights under tbe law of Virginia, and tbat tbe decree allotting ber share according to tbe laws of this State is erroneous.

Tbe decree of tbe Probate Court is therefore reversed, and tbe cause remanded to tbat court, to be proceeded with according tb tbe views herein stated.