Bryant v. McCune

Buss, Judge,

delivered the opinion of the court.

Defendant’s testator devised and bequeathed to his wife the plaintiff’s intestate, a large portion of his estate, real and personal, to hold during her life, and died without issue. In a few weeks, and before the probate of the will, his widow also died, and the present controversy has arisen between the representatives of the two estates in regard to the property to which she was entitled, in addition to dower, by section 33 et seq., chapter 121, Glen. Stat. 1865 (Wagn. Stat. 88).

The term “ dower” is sometimes applied to any interest in the estate of the husband given bylaw; and Judge Scott, in Hastings v. Meyers’ Adm’r, 21 Mo. 519 , seems to use it in this sense, but it properly refers to the interest of the widow as such in his lands. It is to dower proper, or at most to her interest in the realty given in the act concerning dower, that reference is made in section 15 of the same act, which radically changes the rule of the common law, and provides that a devise of real estate shall be deemed to have been made in lieu of dower, unless the contrary intention be declared.

The allowance to the widow of household furniture, provisions, etc., is no part of her dower proper, although it partakes of its nature, in being absolute without regard to the claims of creditors (Hastings v. Meyers’ Adm’r), and also without regard to the husband’s right of disposition by will. This allowance is for the immediate sustenance of the widow, as is dower for her support during life ; yet it differs from it in that it is made from thé personalty owned at his death, and it becomes her absolute property. The argument, then, that this property was disposed of by the general language of the will, and that she took only a life estate in it under the will, has no foundation in fact.

It is urged that the testator must have intended that his wife should receive and hold what was given by the will in lieu of *548 dower, and in lieu of her statutory right to the property in dispute. But there is no indication in the will that she was expected to surrender anything, and in the language of Gardner, J., in Sheldon v. Bliss, 8 N. Y. 31 , “ it is an established principle that a provision in the will of a husband in favor of the wife will never he construed by implication to be in lieu of dower, or any other interest in his estate given by law; the design to substitute one for the other must be unequivocally expressed.” . The. statutory allowance then under consideration was the same as the one in the case at bar; and though, as we have seen, our statute changes the common law in regard to dower proper, where there is a devise of land, yet there is no change as applied to this very necessary allowance to the widow. (As to the implication spoken of, see Foster v. Cook, Brown’s Ch., Am. ed., 347 and notes; also 2Redf. Wills, 738-9, and cases cited.)

The Circuit Court correctly held that the property in dispute was the absolute property of the widow, and went to her administrators ; but, instead of making a final disposition of the matter, remanded it to the Probate Court, from which the case had come by appeal. If the facts were all before the court it should have given a full judgment; yet its failure to do so is not error, and its action is affirmed.

The other judges concur.