18 Tenn. 321 | Tenn. | 1837
delivered the opinion of the court.
Gn the 6th of November, 1833, Michael Dean, of Warreri county, executed a paper writing, which he calls an indenture, to Eleanor and Mary Jane Watkins, -in which he recites that they are the children of Hannah Watkins, wife of Henry Watkins, who is his natural daughter, .that he is far advanced in life, and has no legitimate children, and has considerable property, real and personal; and for the purpose of making provision for his said daughter during her life, and for her children after her
The instrument was acknowledged before the clerk of the chancery court at McMinnville, the same day it was executed, and on22d of July, 1834, it was registered in Warren county.
In 1835, Michael Dean died, intestate, and administration of his estate was granted to the defendant, Lucy, his widow. Mrs. Watkins and her children, by their next friend, Henry Watkins, bring this bill to have partition of the real, and distribution of the personal estate.
1. The first question arises upon the construction of this paper. Can it take effect as a deed, or must it be regarded as testamentary in its character? A deed must take effect in presenti. 2 Kent’s Com. 438. But this instrument, by its
2. The defendant Lucy, the widow of Michael Dean, treating the aforesaid instrument as a testamentary paper, prays leave to dissent from it, and claims one half the estate under the act of 1827, c 14.
The widow has a right to dissent, and claim the provision the law makes in such cases. But we do not think she can take the one half under the act of 1827. That act provides, that where a man may die intestate, and without child or children, his widow shall be entitled to one half his estate. It means, what its words obviously import, not that the widow by dissenting from his will, under the act of 1784, c 22, thereby creates, as to her, an intestacy under the act of 1827. The latter act intended to give her the one half in one case only, where the husband, having no child, had not made any disposition by will of his estate, but it did not intend to prevent him from giving it, as before, to whomsoever he might choose, or to enlarge the rights of the widow, in case he made a will, beyond the provisions of the act of 1784. If the construction contended for were correct, the same result would follow a dying with, or without a will, and the use of the word intestate, would be wholly unnecessary and senseless. But it is manifest the legislature intended the word intestate to be operative and to have effect, which it would not do, if the construction contended for were sanctioned by the court. The widow in this case is only entitled to dower in the land, and to one third part of the personal estate.
The other defendants, heirs at law of Michael Dean, are
Decree affirmed.