Staigg v. Atkinson

Holmes, J.

This is an action brought by a widow to recover one third of the proceeds of land in Minnesota formerly belonging to her husband, and sold without prejudice. The defence is, that she is barred by having accepted the provisions of her husband’s will. The husband made a will while domiciled in Rhode Island, providing for the plaintiff, but not declaring the provision to be in lieu of dower, and then changed his domicil to Massachusetts, where he died. If he had died domiciled in Rhode Island, and the land had been situated there, the provisions of the will would not have prevented the plaintiff from recovering dower; and it has been decidéd, in a case between the same parties, that the change of domicil did not affect her right in Rhode Island land. Atkinson v. Staigg, 13 R. I. 725. If he had been domiciled and had made his will in Minnesota, the plaintiff would have been entitled by statute to the one third which she claims; and, as there is no statute to the contrary, the provisions of the will would not have put her to an election. Gen. Laws of Minn. 1875, e. 40. In re Gotzian, 34 Minn. 159, 163, 164 . Reed v. Diekerman, 12 Pick. 146 , 149. Ellis v. Lewis, 3 Hare, 310. If, finally, the land had been situated in Massachusetts, and the will executed here, the plaintiff would have been compelled to elect between her dower and the will. Pub. Sts. e. 127, § 20. St. 1861, c. 164, § 1. So far, there is no dispute between the parties.

On the foregoing statement, it is obvious that the defendant cannot prevail, unless the rule which would govern if the land lay here also governs the present case. It is contended that that rule does govern, on the ground that the Massachusetts statute is a statute of construction, reading a clause of universal application into the will, to the. effect that the provision made for the widow is in lieu of dower or substituted statutory interests in all lands, wherever situated; that the will is to be construed by the law of the domicil of the testator at the time of his death; and that, if the will so construed makes an acceptance *569 of its provisions a waiver of dower, &c., the law of Minnesota would enforce the election made by- such acceptance. Washburn v. Van Steenwyk, 32 Minn. 336 .

But we cannot admit that a rule of construction, properly so called, not known to the law of the party’s domicil when he made his will, is necessarily to be imported into it by reason of his dying domiciled elsewhere. For purposes of construction, it is always legitimate to consider the time when, and the circumstances in which, the will was made, and we think the law under which it was made is one of those circumstances. We are speaking only with reference to a case like the one before us, not to a question like that in Harrison v. Nixon, 9 Pet. 483, 504 . The testator was at liberty to make bis gift to his wife in lieu of or in addition to dower, as he saw fit. Which it should be, he had to consider, if he ever considered it, when he drew his will. He drew his will under a system by which the gift was in addition to dower unless he expressed the contrary, and he did not express the contrary. We are at a loss to see why his words should be held to acquire a new meaning upon his moving into a State where testamentary gifts are in lieu of dower unless shown to be in addition to it. Atkinson v. Staigg, ubi supra. Holmes v. Holmes, 1 Russ. & Myl. 660.

In view of our construction of the Massachusetts statute, it is not necessary to consider what was the effect of moving into Massachusetts with regard to Massachusetts land. The plaintiff has never made any claim upon it. See Shannon v. White, 109 Mass. 146 . Neither need we pass upon the plaintiff’s argument, that the general law of Minnesota should be accepted here as determining the construction of the will, so far as concerns the effect of accepting its provisions upon the plaintiff’s right to Minnesota land. It would follow from that argument that the plaintiff would have been barred of her dower in the Massachusetts land, even if the testator had not moved from Rhode Island.

The case of Jennings v. Jennings, 21 Ohio St. 56 , relied on by both sides, was the case of a West Virginia will, giving the wife certain interests in land in Ohio, and it was intimated that, with regard to Ohio lands, she was put to her election between the will and her dower, although West Virginia preserved the *570 common law rule allowing her to claim dower in addition to what was given by the will. We understand this case to go on the ground that the law of the place of the land given to the widow by the will was to determine whether she was put to an election or not, at least with regard to land in the same jurisdiction, claimed outside the will. Thus construed, the case helps neither party. The case of Washburn v. Van Steenwyk, 32 Minn. 336 , which was put in evidence, is opposed to the plaintiff’s contention. See Van Steenwyck v. Washburn, 59 Wis. 483, 510 .

But we need not pursue this branch of the case further, because, in our opinion, the Massachusetts statute does not purport to affect lands outside the State, either by way of construction or otherwise.

The language of the Pub. Sts. o. 127, § 20, is as follows: “ A widow shall not be entitled to her dower in addition to the provisions of her deceased husband’s will, unless such plainly appears by the will to have been the intention of the testator.” In the St. of 1861, o. 164, § 1, the language is: “ If she makes no such waiver she shall not be endowed of his lands, unless it plainly appears by the will to have been the intention of the testator that she should have such provisions in addition to her dower.” Both of these acts, in form, are directed at dower, not at the construction of wills. The statutes give the widow dower; Pub. Sts. c. 124, § 3; Rev. Sts. o. 60, § 1; and allow her six months in which to waive the provisions made for her by will. Pub. Sts. o. 127, § 18. St. 1861, c. 164, § 1. Rev. Sts. a. 60, § 11. They then go on to say that she cannot have her dower unless she waives the will, but add that the husband may make his bounty an addition to her dower if he sees fit.

No doubt the statute was intended to change the common law rule. But the fact that it approaches the subject from the side of dower, and not from the side of the will, shows that it was only intended to operate with regard to Massachusetts lands, whether described as a statute of construction or as a statute relating to dower. Of course, Massachusetts would not attempt to legislate concerning dower in another State. Taking the view which we have expressed, we have not considered whether the statutory one third in fee given by the law of Minnesota would be included under the word “ dower ” in our statute.

*571 It was suggested, for the defendant, that the widow could not claim under the will in one jurisdiction and against it in another. But, on our construction of the will and the Massachusetts statute, she does not claim against the will by claiming her third of the Minnesota land outside of it.

We are of opinion that the plaintiff’s interest is bound to contribute to the payment of debts secured by mortgage upon the Massachusetts lands. By the old law, until changed in England by the St. of 17 & 18 Viet. c. 113, if other land was charged with the payment of debts, it had to exonerate land which the testator had mortgaged. And this rule was not based upon the fact that the devise of the mortgaged land was specific, as it would have been even if residuary, or upon any notion of the intention to be drawn from the will; undoubtedly, land not passing by the will, but acquired and mortgaged after the will was drawn, would have been exonerated. The rule was put upon the ground that the debt was a general debt, like any other, and the mortgaged land only a security, and therefore that the funds liable for general debts must pay it. Bartholomew v. May, 1 Atk. 487. Tweedale v. Coventry, 1 Bro. C. C. 240. Serle v. St. Eloy, 2 P. Wms. 386. See Hewes v. Dehon, 3 Gray, 205 , 207; Plimpton v. Fuller, 11 Allen, 139 . It followed that, when other land and the mortgaged land were both charged together, they were held to contribute ratably. Carter v. Barnadiston, 1 P. Wms. 505. Middleton v. Middleton, 15 Beav. 450. Harper v. Munday, 7 DeG. M. & G. 369. And the same principle would apply when all the lands are charged by statute instead of by will.

By the Minnesota statute, the plaintiff’s interest is “subject in its just proportion with the other real estate for such debts of the deceased as are not paid from the personal estate,” so that, apart from the will, the plaintiff’s one third would stand no better than the other two thirds. Taking into account this and the general course of legislation which makes land liable for. debts, we think that it would be too artificial to interpret the testator’s general direction to pay debts as indicating an intent to charge the interests passing by the will in exoneration of the plaintiff’s one third, even as against residuary devisees, Hewes v. Dehon, ubi supra, (see Harris v. Watkins, *572 Kay, 438,) although we assume that the residuary devise was not specific, so far as it affected the Minnesota land, as it was not with regard to the land in Massachusetts. Blaney v. Blaney, 1 Cush. 107 . Thayer v. Wellington, 9 Allen, 283 , 296. The plaintiff prevails upon a somewhat technical principle, and hardly can complain if she is held to stand upon the footing on which the Minnesota statute meant to put her.

Judgment for the plaintiff for $2205.69.