Arrington v. . Dortch

Byktbí, J. Bat. Rev. ch. 117, § 7 provides, that where she dissents from her husband’s will, “the widow shall have "the same rights and estates in the real and personal property .of her husband as if he had died intestate.” The Rev. Code ch. 118, § 12 provided, that “where a widow shall dissent from her husband's will, she shall take as fully, and such part of his personal estate as she would take in case of his intestacy.” We can see no substantial difference between the two statutes as was attempted to be shown in’ the argument, and therefore we must give the same construction to the former as the latter has invariably received in the decisions of this Court. Worth v. McNeil, 4 Jones Eq. 272, was .decided in 1858, after the enactment of the Revised Code, mid was a case entirely like the present; in that, advancements had there been made of slaves to the children by a former marriage. It was there held on the dissent of the widow, that in ascertaining her distributive share as in a .case of intestacy, she was entitled to have advancements made under the will estimated as a part of her husband’s ¡estate. The same principle was decided in Headen v. Headen, *370 7 Ire. Eq. 159; Hunter v. Husted, Busb. Eq. 97; Credle v. Credle, Busb. Law, 225. His Honor in the Court below held that Mrs. Drake, one-of the children of the testator, being a legatee under the will must account for advancements made to her, but that the other two children not being legatees, the advancements made to them were not to be estimated in favor of the widow as against the grand-children who claimed under the will. No such distinction can be sustained. In ascertaining the widow’s share who dissents, there is no will as to her, but the husband dies intestate; and of course all his personal estate, whether consisting of advancements theretofore made to children, or legacies to grand-children or strangers, is to be brought together and her share is to be taken out of it pursuant to the statute of distributions. Bat. Rev. ch. 45, § 103. His Honor was probably misled by what the Court said in Worth v. McNeil, supra,, and by not adverting to the distinction there made between the case of the widow claiming against the will as in an intestacy where all the personal property must be brought in hotchpot.for her benefit, and the case of a division among children claiming' under a will where advancements are not to be accounted for as between themselves. In this case all the advancements are to be accounted for and as of the time when made, and the widow or her personal representative is’ entitled to a child’s part as in case of an intestacy. It may be a hardship upon the children and legatees, as the advancements were made in slaves which have been emancipated by the results of the war, but then the lav/ operates by fixed principles and cannot bend to cases of individual and exceptional hardship. There is error. Judgment reversed and judgment here according to the agreement in the case stated. Pee Cueiam. Judgment reversed.