| Tenn. | Nov 1, 1871
delivered the opinion of the court.
The bill in this case is filed by Anne P. Phipps, then widow of Joshua Phipps, but who has since intermarried with Calvin Waterbury, claiming dower in the lands of her late husband, and her distributive share of his personalty, on the assumption that she was
The husband, Joshua Phipps, died in July, 1861, after making his will, which was duly probated at August Term, 1861, of the County Court of Hawkins county, at Rogersville. By said will, Joseph B. Heis-kell, Frank L. Phipps, and Robert G. Netherland were appointed executors, and entered upon their duties as such on probate of the will.
At June Term, 1866, of the County Court of Hawkins county, the said Anne Phipps, in open court, entered her dissent to her husband’s will, as she alleges in her bill.
The bill excuses, and seeks to avoid the fact of failure to dissent from the will of her husband as required by law, in a series of allegations, which are in substance as follows:
1. She says that, in the first place, she was informed by Joseph B. Heiskell, one of the executors, that the law allowed her two years in which to enter her dissent, and never had any other or different information till after a year had expired.
2. That she verbally applied to the executors for information, and they failed fully to disclose to her the condition of her husband’s estate; yet, as she says, there was no fraudulent purpose in withholding this information.
3. The civil war in the country had the effect to suspend almost entirely judicial proceedings in the courts, and rendered it unsafe for most persons, especially females, to leave their homes for
4. She says: “ In consequence of the losses sustained by the emancipation of slaves, and by the plundering of soldiers, the provisions made by said last will and testament for your oratrix are greatly disproportionate to the value of the estate, and she has been reluctantly constrained by the force of circumstances beyond her control to resort to her legal right of dissenting from the will.”
She then goes on to insist that the section of Code, 2404, is a statute of limitations, and suspended by the Schedule of 1865 and statute of that year on the subject.
The executors and legatees of Joshua Phipps are made parties to this bill, and required to answer the same on oath; and, in conclusion, she prays that dower may be assigned complainant out of all the lands of her deceased husband, and damages for detention of same; that an account be taken of the estate, and an allowance be made for her year’s support and of her family, and she' have articles exempt from execution, and for a child’s part of the entire personal estate, including the negroes on hand at death of tes
The two acting executors, Netherland and Frank Phipps, answer this bill, with the wife of Netherland, who was a daughter of Joshua Phipps, together with Clay and wife, also legatees under the will — Heiskell having ceased to act as executor.
The executors admit they had qualified and proven the will as charged, of which the complainant had notice^ that the more important part of the business of the trust had long since been settled and adjusted, and that the complainant had formally dissented from the will in June, 1866, but utterly deny the validity of such proceeding. They then go on to deny that there was any impediment, in law or in fact, to prevent complainant from dissenting from the will of her husband within the one year after its probate. This denial is made in most positive and unequivocal terms.
They say, as to the charge that Heiskell had told her that she had two years in which to dissent; that-said Heiskell was well learned in the law and familiar with the provisions of the statute, uniformly accurate and careful in giving advice, and entertained the highest regard for complainant, ardently desiring to promote her interest, and was her legal and confidential adviser and friend — for these reasons it is, they claim, “ they are warranted in denying that Heiskell told her she had the two years in which to dissent;”
The respondents positively deny that they at any time refused or neglected to give complainant any information whatever as to the condition of the estate. On the contrary, they say, all matters connected with the estate, its value, kind, nature and condition, were fully discussed with her, and other parties in interest; that a full and complete inventory was made under her immediate inspection and with her assistance, a copy of which they believe was furnished her. They allege, that so far from being ignorant of the condition of the estate, she was ' fully informed of the items and minutiae of the business, and they file with their answer a paper, evidencing a settlement between executors and complainant, signed by them all, January 24, 1862, which they insist shows her familiarity with all the details of the estate. This paper shows a division among the legatees of the notes, bonds and judgments belonging to the estate, between the parties entitled - under the will, assigning an ascertained share to each, and is alleged in answer to have been a division of all the property of that description, except an amount supposed to be sufficient to pay the debts and expenses of settlement of the estate. They say at this time Heiskell was present and explained to complainant the whole matter, which she fully understood, as she was very capable of doing. It may be remarked here, that the will disposed of specifically all the estate of Joshua Phipps to his wife and children, with great particularity, except one mare and perhaps
Without going into detail of denial of the answer, we may say in short, that all the material facts charged in the bill are either positively denied or fairly put in issue, and are to be proven.
We now examine the questions presented for our decision, both of law and of fact, that we may see whether the complainant is entitled to the relief she seeks.
We are relieved from the necessity in this case of going into the general doctrines of courts of equity, on the question of election by a widow, between a provision made by the will and her rights under the statute of distributions, and her dower right, by the fact that our own statute law has clearly and distinctly laid down the rule governing all such cases in our State. By this law we are bound, and, our only duty is to ascertain what that rule is, and then carry out by our judgment the intention and purpose of the Legislature, fairly and fully, neither extending nor limiting the plain meaning of the enactment by construction. The intention of the Legislature, when ascertained, is the law of the land. Any other principle would lead to making this court, not a judicial, but a legislative department of the government.
There is a will in this case, which is duly proven, in which provision is made for the widow of the tes
The Code, s. 2404, provides that “ a widow may dissent from her husband’s will: 1. Where a satisfactory provision in real or personal estate is not made for her, in which case she shall signify her dissent in open court, within one year after the probate of the will. 2. Where a provision in personal estate is made for her, but the whole of the husband’s property, including the bequest, is taken for the payment of his debts; in which case she may, without any formal dissent, sue for her dower, and in both cases she shall be endowed, as if her husband had died intestate.
It was held in the case of Gupton v. Gupton et al., 3 Head, 488, that the term “endowed” does not limit the estate to be taken by the widow to one-third of the. land, but embraces the personalty, and that under this section the widow is entitled, on dissent to the will, to such portion of her husband’s property as she would have had if he had died intestate. In 9 looking at the language of the Code, it will be seen that it involves the idea necessarily that the widow is prima faeie bound by the will of her husband, but that a privilege is conferred on her by which she may avoid its provisions as to herself, and she may dissent from it. She is not required to assent to the will, but the will is binding and conclusive on her as to its dispositions, unless she shall signify her dissent in open court within one year after the probate of the will. In other words, the will is a perfected-
The argument in that case was, that she had supposed herself about to receive a substantial and not dehisive provision under the will, and therefore only did not dissent. The court, however, say, “the answer to this is, the statute gives her six months to examine, to inquire, to consult friends; and if, without fraud and imposition,- she elects not to dissent, there is no principle upon which, against the express letter and obvious policy of the statute, she can claim to be thrown back on her dower right. She may in every case put herself on safe ground and dissent from the will, but if she decline to dissent, she must not, if the experiment turn out badly, expect the court to replace her upon her dower right.” The court conclude the opinion by the remark, that “to yield to the present application would be a virtual repeal of the statute, and it is better that a few widows should be permitted to choose ignorantly and injudiciously, and to their loss, than that we should have no ruje on the subject.”
This case would be conclusive of that part of the case under consideration, based on the alleged statement by Heiskell, that she had two years' in which to dissent, for it is not even alleged in the bill of complainant that there was any fraud on the part of Heiskell in 'this statement, even if it was ever made,
But when we come to look at the proof in the case, we do not feel at all satisfied that any such statement was ever made by Heiskell to her. It is true she swears to it in her deposition; but Heiskell, in his deposition, while he admits it might have been possible that he had made a mistake, does not think he ever did so.
But again, assuming the statement to have been made as charged, and that it was such a fraud as would, if relied on by her, have relieved complainant from her failure to dissent, it is well settled that even fraud, to be relieved against, must be operative aud injurious to the party: Cunningham v. Shields, 4 Hay.,
We do not feel disposed to criticise the deposition of complainant farther than to say that it can not weigh with much force, from the evident fact, shown throughout the entire deposition, that her memory is colored and warped by a previous theory which she evidently tries to support, and which is necessary to the maintenance of her bill; and while we do not question the purposed integrity of the witness, we are bound judicially to weigh her testimony by the rules of law. Doing this, from the whole tenor, temper, and character of her deposition,- we could give it but little, if any, more weight than the statements contained in her bill, which she deposes to sustain. To illustrate the character of her answers, in r.eply to a question, on cross-examination, as to whether she had
On looking at this settlement it will be seen, however, that she, as well as the other parties, distinctly received the money and notes then as their shares under the will of testator, and that it was*a “ division of part of the notes and bonds,” etc., between the parties, in accordance with the provisions of the will, and it is abundantly shown by all the proof that she did hold this property under the will as her own, used it as such, received the rents and profits, and invested about $8,000 of proceeds in slaves; and further, it appears that on this division she was allowed, and did take, the first choice as to the notes, etc. It further clearly appears that no declaration of the fact so often repeated by her in deposition, that she felt she was only holding the
This case bears no resemblance in its facts to the case of Smart and Wife v. Waterhouse, 10 Yer., 94. In that case the failure to dissent was the result of positive fraud on the part of the executors in proposing to give the widow $5,000 in cash for her share, if she would not dissent, and in representing that the estate was only worth about $40,000, whereas it was worth $75,000; and then, after preventing her dissent, they refused to comply with their agreement. In that case the widow had determined to dissent from the will within the time allowed by law, and was only prevented from doing so by the fraud of the executors. In this case, however, the widow had not determined to dissent within the twelve months; but, on the contrary, there can be no question, on looking at the entire proof in the case, that she had determined to acquiesce, and did acquiesce, in the provisions of the will. The case of Smart and wife is distinctly put upon the principle that where an act has been prevented from being done by fraud, equity will consider it exactly as if it had been done: p. 104. No act was prevented in this case, as no dis-. sent was purposed or intended within the twelve ^months.
The face of the bill, on the fourth ground stated as reason why she is entitled to dissent, is conclusive
As to the other grounds stated in the bill on which the right to dissent is predicated, we need but refer to them in a few words. First, failure to disclose the condition of the estate. The proof shows that she had as thorough knowledge of that condition as the executors themselves, and that she never sought any information bearing on the question of dissent, in any way, from the simple fact that no such purpose was entertained by her till long after the period for such dissent had expired.
As to the suspension of the courts and danger from bands of soldiers, the proof shows clearly that the County Court was held regularly up to September, 1863, and that there was neither danger nor difficulty in the way of her going to said courts. 'We may add, that if the fact had been that no courts were open, so that she could not have dissented in open com’t, as the statute requires, it would present quite a different question. As to the section of the Code having been suspended by Schedtile and act of the Legislature, as being a statute of limitations, we need not discuss the question, as it is not seriously pressed on us as maintainable, and we consider this question settled by previous adjudication.
As to the general appeal made to this court, founded on consideration that she was a widow, we have only to say, that as such, the law gave and defined special rights and privileges growing out of that fact, one of which is, that as such widow she must dissent from