41 Ala. 473 | Ala. | 1868
The appellee, at the death of her husband, had a separate estate, held under the Code, greater in value than her dower interest in, and distributive share of, the estate of her husband; computing the same by the rule prescribed in sections 1991 and 1992 of the Code, But the
Where the husband sells and conveys lands, owned during coverture, and the alienee makes improvements upon the land, the widow is not entitled to dower in the improvements, but in the land according to its value at the time of alienation. Such we understand to be the law in this country, and in England.—Barney v. Frowner, 9 Ala. R. 901; Beavers v. Smith, 11 Ala. 200, and the authorities cited therein. If the heir makes improvements, after the death of the ancestor, and before the assignment of dower, the widow is dowable of the land and improvements; and if the value of the land is impaired after the death of the ancestor, and before the assignment of dower, she is dowable according to its value at the time of assignment, and not according to its value at his death, at least if such impairment is not caused by the negligent or willful conduct of the heir.—Campbell v. Murphy, 2 Jones’ Eq. (N. C.) R. 357.
Under the statutes of distribution, the widow is entitled to a share of the personal estate of her husband; but the time at which the valuation is to be made, in order to ascertain the amount of her share, is not fixed by the statute; yet, it has been the uniform practice in this State, recognized by repeated decisions, to ascertain her distributive share according to the value of the personalty at* the time of the distribution, and not according to its value at the death of the husband. It has been held by this court, that,
If, then, the valuation of the land owned by the husband at his death, and of the personal estate, is to be estimated at the time of the assignment of dower and distribution of the personalty, for the ascertainment of her dower interest and distributive share; it would seem to be just and reasonable, that the same rule should be held applicable as to the valuation of the separate estate of the wife under sections 1991 and 1992 of the Code.
Equality is said to be equity; and in all cases of difficulty in the construction of statutes of this nature, this cardinal rule is of great service in the administration of justice. It may also be said, that there is equity in mutuality; and in adjusting the correlative rights and duties pertaining to the social relations, such a rule, when wisely applied, greatly promotes the ends of justice, and the interests of society.
No general rule on the subject can be adopted* and invariably applied, without causing some inequalities; and in particular cases, which are easily supposed, will work hardly. But this difficulty is inherent in the constitution of society and the transaction of human affairs; and we have not yet reached that degree of perfection in the progress of improvement and the administration of law, when such difficulties can be reconciled without occasional injustice, or solved without apparent inconsistency. Hence, it is thought, that fixed rules, wisely applied, operate more equitably than uncertain and changeable ones, or such as may be adopted to suit the peculiarities of each case.
If, then, a widow is only entitled to her distributive share of the personalty according to its value at the time of distribution, it would seem to follow, that-she is not entitled to
This question has never been before this court for decision; but, in the ease of Dubose v. Dubose, (38 Ala. 238,) it seems that the latter clause of the rule adopted by us, was acted on by the court below, and the commissioners who allotted the dower; and no question was raised in the court below, or in this court, on that point.
It may be said, with much force, that if the appellee in this case had applied for her dower before the emancipation of her slaves, she would not have been entitled to dower; and that, as she was not then entitled, the heir was not in default in not having dower assigned; and that therefore, she should not, by her own delay, and the result of events which neither she nor the heir could control, obtain an advantage which the law did not give her at the death of her husband. This is the strongest argument of which we have conceived, against the rule we have adopted, as applicable to this case. But, under any other rule we might adopt, we can conceive of hardships equally great, and arguments as strong against such rule.
It is not shown by the record when administration upon
To adopt the rule, that the separate estate of the widow must be valued at the death of the husband, or that such estate, whether in existence or not, must be valued at the date of the distribution of the personalty or the assignment of dower, would be inconsistent with the principles applicable to the interest which a widow has in the personalty and realty of the husband. And the rule we have indicated as the correct one, as applicable in cases like this, is the one which seems to be in accordance with the legislative intention, apparent from the use of the phrase contained in section 1991, “exclusive of rents, income, and profits, and inclusive of the increase of slaves.” Why did the legislature use this expression? A previous section of the statute gave the rents, income, and profits of the statutory separate estate, to the husband; or, rather, it declares, that he shall not be accountable for them, “ to the wife, her heirs, and legal representatives.” Hence, that clause must refer to such rents, income, and profits, as accrued between the death of the husband and the distribution of his estate. And as to the clause, “ inclusive of the increase of slaves,” it certainly did not refer to such increase prior to the death of the husband; for it would constitute a part of the corpus of her estate before and at his death. Partus sequitur, ventrera. But it evidently refers to such increase subsequent to the death of the husband, and prior to the distribution of his estate. And this was required for a very good reason; which was, that she would be entitled at the distribution of his estate to her distributive share of the
In the construction of statutes, every word and part of a sentence must be given some influence and office, in order to arrive at the intention of the legislature and the meaning of the statute ; and no word should be rejected as superfluous, where it can be assigned an office, consistently with the evident intention of the legislature, or where it can aid in arriving at that intention.—Spivey v. The State, 26 Ala. Rep.; Dwarris on Statutes, 702-07 ; Sedgwick on Stat. & Con. Law, 245-6, 260.
Quere — Would the rule laid down apply to the right of the widow to dower in land aliened by the husband during the marriage ? and do the words “ dower interest,” in section 1991 of the Code, include her right of dower to such land ? These questions are not answered, because they have not been presented in a form for adjudication, nor been argued.
The ruling of the court upon the demurrer, if erroneous, was without injury to appellant. — Lawson v. Hicks, 38 Ala.
The decree is affirmed.
Section 2380 (1991) of the Revised Code is in the following words : “ If any woman, having a separate estate, survive her husband, and such separate estate, exclusive of the rents, income, and profits, and inclusive of the increase of slaves, is equal to, or greater in value than, her dower interest and distributive share of her husband’s estate, (estimating her dower interest in his lands at seven years rent of the dower interest,) she shall not be entitled to dower in, or distribution of, her husband’s estate.” This law establishes a bar of the widow’s dower and distributive share, predicated upon a comparison of their value with the value of her separate estate. The bar is effective, when the value of the separate estate is equal to, or greater than, the value of the dower and distributive share. The comparison of values must, in my judgment, relate to the time of the husband’s death. The valuation of the separate estate, and of the dower and distributive share, is to be taken at that time, and in the condition in which they respectively existed at that time. The converse of this proposition is, that the comparison of value is to be made in reference to the time of distribution, and of the assignment of dower. The proposition is maintained, and its converse refuted, by the same argument.
If my proposition is not correct, and if the converse of it is, the right of dower does not exist at the husband’s death, but springs up at the time of distribution; and although the state of facts may exist at the husband’s death, under which the widow is entitled to dower, a change may be effected by a subsequent change in the condition of the property. Her separate estate may be less in value at the husband’s death, than the dower and distributive share, and it may be greater when the estate is ready for distribution ; and e converso, her separate estate may be as valuable as dower and a distributive share at the husband’s death, and at the time of distribution it may be less valuable, It is obvious, therefore, that if the comparison of
Such a construction of the statute changes the nature of the dower right entirely. The right of dower is inchoate until the husband’s death, and then it is consummated. Marriage, seizin, and death are the essential, and only essential, requisites of dower. It vests at the husband’s death. Park on Dower, 7, 247 ; Lamberton Dower, 26 ; 1 Scribner on Dower, 618; 2 ib. 26; Co. Litt. book 1, ch. 5, § 36, p. 31; Boyd v. Harrison, 36 Ala. 533 ; Polier v. Barclay, 15 Ala. 451; Beavers v. Smith, 11 Ala. 321.
It is settled in this State, that the widow’s quarantine commences at the husband’s death, and that she is entitled to the rents of the dwelling-house and the plantation connected therewith from the death of the husband until dower is assigned.—Revised Code, § 1630 (1359 ;) Waters v. Williams, 38 Ala. 680; McAllister v. McAllister, 37 Ala. 484; Oakley v. Oakley, 30 Ala. 131; McLaughlin v. Goodwin, 23 Ala. 846; Pharis v. Leachman, 20 Ala. 662-686; Wallace v. Hall, 19 Ala. 367; Cook v. Webb, 18 Ala. 810; Inge v. Murphy, 14 Ala. 289. This widow’s quarantine, it is also settled, is a statutory substitute for dower until it is assigned, and can only exist when there is a right of dower. Shelton v. Carrol, 16 Ala. 153 ; Boynton v. Sawyer, 35 Ala. 497 ; Vaughn v. Vaughn, 30 Ala. 329; Weaver v. Crenshaw, 6 Ala. 873. Therefore, the proposition, that the dower does not attach until the distribution of the estate, deprives the widow of her quarantine, and, when she has a separate estate, practically abrogates the humane provision of the law for her maintenance until her dower is assigned.
Where any provision is made for the widow by her husband’s will, she forfeits her dower by a failure to dissent within twelvemonths.—Adams v. Adams, 39 Ala. 274. Now, if the right of dower can be controlled by events occurring subsequent to the husband’s death, the existence of a right of dower may be affected by circumstances occurring after the expiration of the period allowed for an election between
The statute bestowing the widow’s quarantine, existed before the adoption of the Code of 1852, and was construed, in repeated decisions, to vest in the widow a right to the possession of the dwelling-house, and the plantation connected therewith, for an indefinite period, commencing at the husband’s deatb, and terminating only with the assignment of dower. This law must be deemed to have been incorporated into the Code, with its established construction. Indeed, decisions made since the Code became the law of the State, re-assert the construction of the law. The decision of the majority of the court effects, in my judgment, an entire change in the law as thus construed, and makes the quarantine, if the widow have any separate estate, an interest commencing at some undefined and undefinable time in the future, when the estate may be ready for distribution. The provision of a home and support for the widow, pending her doleful and helpless condition between the death of her husband and the assignment of her dower, which is the beneficent object of the law, is defeated, and the very purpose of the law-maker is thwarted, by the ruling of my brethren.
Section 1630 (1359) of the Revised Code in its language means, and, I think, has always been understood to mean, that the widow’s quarantine commences at the husband’s death. The opinion of my brethren has the effect, in my judgment, to change that section, so as to make it read as follows: “ The widow? may retain possession of the dwelling-house where her husband most usually resided next
The Code of 1852, which contains section 1991, (the law under construction,) was a system the different parts of which are framed in reference to each other ; and each part is, therefore, to be construed in reference to others upon the same subject. Now, section 1372 of the Code of 1852 was in the following words: “ All suits or proceedings for dower must be commenced within three years after the death of the husband, and not after.” Here, then, a comprehensive and inflexible rule was established, which initiated the operation of the statute of limitations against the right of dower, in all cases, from the husband’s death. The construction of section 1991, which makes the dower under it originate at a day subsequent to the husband’s death, postpones the commencement of a right to a time subsequent to that at which the statute of limitations has begun to operate against it.
Section 2380 (1991) of the Revised Code places a widow’s distributive share in her husband’s estate in the same category with dower; and if she has no property in dower, until the period of distribution arrives, neither can she have any property in the distributive share before the arrival of the same period. It is settled, however, that the right of a distributee vests at the husband’s death.—Hardy v. Boaz, 29 Ala. 168; Sterns v. Weathers, 30 Ala. 712 ; Sharp v. Burns, 35 Ala. 653 ; Anderson v. Anderson, 30 Ala. 683. If, therefore, the section under consideration postpones the commencement of property in dower, it delays to the same extent the property in a distributive share, and creates a new character of distributive share — one that commences,
The decision of the court involves a postponement of the dower right to final distribution. It therefore deprives her, if she has any separate estate, of the benefit of the statutes providing for partial distribution, under specified restrictions and regulations, after the expiration of eighteen months.—Revised Code, § § 2105 (1778), et seq.
A further objection to the opinion of the court, drawn from our own statutes, is, that it must result in a destruction of analogy between the relation of the wife to the husband’s estate, and that of the husband to the wife’s estate, and in an unreasonable discrimination against the wife. It leaves the husband to enter upon the enjoyment of one half the personalty, and all the realty, of the wife’s separate estate, at her death; but, if she has a separate estate, no matter how small, delays every interest of the wife in the husband’s estate, to an undefined day in the future.
It is a wise and prudent, as well as an established principle, that statutes in derogation of the common law are to be strictly construed.—Sedgwick on Statutory & Con. Law, 318. It is also a settled principle, that dower is a right highly favored in the law; and courts do not incline to constructions which trench upon it.—Ridgway v. McAlpine, 31 Ala. 458. The statute in hand is an infringement upon the common law in this, that it takes away the right of dower in a class of cases, in which the common law would have given it. It should, upon the principles above stated, be strictly construed, and construed favorably to the right of dower. In my judgment, the decision of the majority of the court, construing this statute to prevent the consummation of dower at the husband’s death, is at variance with both those principles.
From the inclusion of the increase of slaves, and the exclusion of rents and profits, in the estimate of the value of the wife’s separate estate, an argument is drawn by my
I agree that there are difficulties in carrying my construction of the law into operation. It may be impossible to ascertain at the husband’s death what is the value of the distributive share. It is believed, however, that in many, if not most cases, it can be approximated sufficiently to enable the court to determine the question of the right of dower. If a case arises where it could not be ascertained, the proper course would probably be to postpone the assignment until the requisite information could be obtained. Be this, however, as it may, I think the carrying into operation of the opposite doctrine will be met with still greater difficulties. I do not think it possible now to anticipate the magnitude of the difficulties and confusion, which will attend the practical operation of the rule adopted by the majority of the court.
The difficulty of the practical operation of the decision of the court will be seen, if the mind reverts to the inquiry, what rule is to govern, when the separate estate of the widow, being personalty, is disposed of and carried away, so that its value can not be ascertained at the time of distribution ; when the separate estate is increased in value by the operation of natural causes, or by the skill, industry, or expenditure of the widow, or is lessened by her negligence ; or when the estate of the deceased husband is reduced in value by the misconduct of the administrator. These inquiries might be extended, but enough has been said to invite scrutiny and direct investigation.
This dissenting opinion is prepared in reference to, and with a view to support, my dissent in the case of Glenn v. Glenn’s Adm’r, at the present term.