Alexander v. . Fleming

AdaMs, J. T. A. Fleming devised his real property to his wife “to be used during her natural life,” and directed that it be partitioned after her death among the four children named in his will, subject to the provision, “If any one of my children above named die without leaving-heirs of their body then all that they have inherited under this will shall revert to my estate and be equally divided among my surviving children or their bodily heirs if any one of them be dead and left children.” After the death of the life tenant the land was divided among the testator’s three surviving children and the children of Harriet Kimmons, who meanwhile had died. The land in controversy was devised to R. W. Fleming and by virtue of the devise he acquired a title in fee, defeasible in the event of his death without children or heirs of his body. C. S., 1737; Buchanan v. Buchanan, 99 N. C., 308; Whitfield v. Garris, 131 N. C., 148; S. c. 134 N. C., 25; Wilkinson v. Boyd, 136 N. C., 46; Harrell v. Hagan, 147 N. C., 112; Elkins v. Seigler, 154 N. C., 374; Burden v. Lipsitz, 166 N. C., 523; Bizzell v. Building Asso., 172 N. C., 158; Albright v. Albright, ibid., 351; Smith v. Parks, 176 N. C., 406; Love v. Love, 179 N. C., 115; Walker v. Butner, 187 N. C., 535. *818 The question first presented relates to the alleged right of dower in this estate. Whether elsewhere the law on the subject may be uncertain or confused is a matter with which at present we are not concerned, for our decisions furnish an answer to any inference or suggestion that the determinable quality of B. W. Fleming’s estate excludes the widow’s right of dower. The exact point arose in Pollard v. Slaughter, 92 N. C., 72, and Mr. Justice Ashe, after an exhaustive review of the English and American authorities, adhered to the principle declared in Buclcworth v. Thirlcell, 3 Bos. & Pull., 652, that the determination of an estate by operation of an executory devise does not defeat either curtesy or dower. See, also, Midyette v. Grubbs, 145 N. C., 85; Allen v. Saunders, 186 N. C., 349. The plaintiffs do not impeach these decisions; they assent to them. They make no appeal to the doctrine of equitable election; they admit it is not apposite. Their contention is based on the broad proposition that the appellee elected to remain outside the class of widows who are dowable under our law, for the reason that, her husband having died testate, she did not dissent from his will. In Coke’s First Institute, by Thomas, 450, it is said: “In every case where a woman taketh a husband seized of such an estate in tenements, etc., so as by possibility it may happen that the wife may have issue by her husband, and that the same issue may by possibility inherit the same tenements of such an estate as the husband hath, as heir to the husband, of such tenements she shall have her dower, and otherwise not.” “Tenant in dower” says Blackstone, “is where the husband of a woman is seized of an estate of inheritance, and dies; in this case, the wife shall have the third part of all the lands and tenements whereof he was seized at any time during the coverture, to hold to herself for the term of her natural life.” Subject to exceptions our statute provides that every married woman, upon the death of her husband intestate, or in case she shall dissent from his will, shall be entitled to an estate for her life in one-third in value of all the lands, tenements, and hereditaments whereof her husband was seized at any time during the coverture. C. S., 4100; Chemical Co. v. Walston, 187 N. C., 817. In reference to the construction of this statute the appeal involves two questions: (1) Whether the husband had a devisable estate in the land in controversy; (2) whether the widow’s dissent from his will was prerequisite to her right of dower in the defeasible fee. With respect to the first of these questions Tiffany in his work on Beal Property, vol. 1, (2 ed.) sec. 221, says: “The important consideration in this connection is whether the estate out of which dower is claimed came to an end before the husband’s death or at the time of such death, the widow being entitled to dower in the latter case and not in the former.” *819 Tbe limitation over took effect and R. W. Fleming’s fee was defeated tbe instant be died, there being no “heirs of bis body”; be bad no estate in tbe disputed land wbieb be could dispose of by bis will; and no title to it or interest in it was transferred to bis wife by bis devise of all bis real and personal estate. Smith v. McCrary, 38 N. C., 204; Elmore v. Byrd, 180 N. C., 120. His widow’s right to dower rests upon tbe theory that during coverture be was seized of an estate which any child she might have borne him could possibly have taken by descent. Pollard v. Slaughter, swpra. Within tbe meaning of tbe statute R.- W. Fleming did not die intestate as to a defeasible fee which be could not dispose of by will (4 Words & Phrases, 3732; ibid., vol. 2, (2 series) 1170; Kohny v. Dunbar, 39 L. R. A., N. S., 1107) ; and bis widow was not required as a condition precedent, or in right of her election, to dissent from a will in which be devised tbe real and personal property of which be died seized and possessed. Where a husband dies leaving a last will and testament in which be devises bis property to bis widow,'she must take either under tbe will or under tbe law. If she elects to take under tbe will she cannot have dower; but tbe dissent from her husband’s will authorized in C. S., 4100, evidently has reference to property which may be tbe subject of a devise. R. W. Fleming, as we have said, bad no legal right to devise tbe defeasible fee and bis widow, therefore, is not claiming dower in opposition to tbe will. Landers v. Landers, 151 Ky., 206, 214. If be could have devised tbe land a different question would have arisen and tbe argument advanced by tbe plaintiffs would have demanded of tbe appellee tbe most serious consideration. In our opinion section 4100 does not apply to tbe facts appearing of record, and for this reason it was not essential that tbe widow of R. W. Fleming should dissent from bis will before asserting her right of dower in tbe estate which was determined at bis death by operation of tbe executory devise. We find No error.