Benagh v. Turrentine

STONE, J. Dower has always been a favored right in English jurisprudence. Before the Conquest, it, and its complement, quarantine, were recognized as fundamental principles in British civilization. Coke classes it in the trio of rights which the law favors : life, liberty, and dower. Sp rooted had the sentiment become, that in Magna Oharta it was provided, that tbe widow “ may remain in her husband’s house forty days after his death, within which time her dower shall be assigned.” And Canute, the Danish usurper, is said to have proclaimed the edict, “ Ubi maritus habitavit, absque lite, et absque controversia, habitent uxor et infans ubique, absque lite." And so our statutes, which secure quarantine and dower to the widow, and a succession to the homestead, if a decedent leave a surviving wife or infant child, are conceived in the same humane spirit. In 1826 it was enacted, that the widow shall “ retain the full possession of the dwelling-house in which her husband most usually dwelt next before his death, together with the outhouses, offices, or improvements, and plantation thereunto belonging, free from molestation and rent, until she shall have her dower assigned her.” — -Clay’s Dig. 173, §7. In the same statute it was declared to be “ lawful for any widow, claiming dower, to file her petition in the Circuit or County Court, in the county where the husband shall have usually dwelt next before his death, setting forth the nature of her claim, and particularly specifying the lands, tenements, and hereditaments, of which she claims dower, and [560] praying that dower may be allotted to her ; whereupon the said court shall issue their writ,” &c. — lb. § 5. Under this statute, the widow alone is named, as having authority to file the petition. It was declared by this court, “ The object of the statute was to protect the widow in the enjoyment of the homestead, and the rents and profits accruing therefrom, until her dower was assigned, and to make it Incumbent on those entitled to the fee, whether they be the heirs-at-law or purchasers, if they desired to obtain possession of the portion to which they were entitled in the real estate, to become themselves the actors to have the widow’s dower assigned hfer. If they remain inactive, and acquiesce in her possession, she is not subject to the payment of rent, nor to molestation. Until her dower is assigned, she holds the premises for an indefinite period, and may rent them out and appropriate the proceeds to her own use.”—Shelton v. Carroll, 16 Ala. 148; Inge v. Murphy, 14 Ala. 289; McLaughlin v. Godwin, 23 Ala. 846; Oakley v. Oakley, 30 Ala. 131; McAllister v. McAllister, 37 Ala. 484; Smith v. Smith, 13 Ala. 329; Doe, ex dem. v. Webb, 18 Ala. 810; Boynton v. Sawyer, 35 Ala. 497; Slatter v. Meek, Ib. 528; Perrine v. Perrine, Ib. 644; Walters v. Williams, 38 Ala. 680. These statutes have been very materially changed since that time, in this: “ the widow, heir,” and “ personal representative of the husband,” are all mentioned in the statute, as having authority to file the petition. — Code of 1876, §§ 2238-9. The personal representative is charged with a trust, to collect together the assets of the estate, preserve them, and apply them, after defraying the expenses of administration, first to the payment of debts, and next to the claims of legatees and distributees. If there be a deficiency of personal assets to pay the debts, he must institute proceedings to subject the real estate to the payment of such debts as may remain unpaid, after exhausting the personal estate. In this last function, he is said to represent the creditors, and to become the antagonist of the heirs.—Bond v. Smith, 2 Ala. 660; Steele v. Humes, at present term. As to the duty and authority of the personal representative, see Stewart v. Stewart, 31 Ala. 207; 1 Brick. Dig. 957, §§ 609, 610, 611. If any person, other than the widow, was the personal representative of an estate, and neglected, for the space of six and a half years, to have the widow’s dower allotted to her, thus leaving her in the entire possession and control of the “dwelling-house where her husband most usually resided next before his death, with the offices and buildings appurtenant thereto, and the plantation connected therewith,” and [561] all the income and profits thereof; and if a sale of the realty should become necessary for the payment of debts, we would not hesitate to declare that such personal representative thereby committed a devastavit, and rendered himself liable to account for the loss he had entailed on the estate. The fact that the widow becomes administratrix can not vary the rule. As widow, she may be under no obligation to move in the matter. She represents herself. But, when she takes upon herself the administration of the estate, her duties, and consequent liabilities, are enlarged. She becomes trustee for others, and, while caring for her own interests, she must not neglect the interests of those for wh'om she holds in trust. We decide that it was the duty of Mrs. Hobbs, within a reasonable time after she was appointed administratrix, to take steps to have her own dower allotted ; and that failing, she is liable as administratrix for the injury the estate suffered by reason of her failure. What is a reasonable time, within which proceedings should be instituted for the assignment of dower, must depend somewhat on the known condition of the estate. No unbending or arbitrary rule can be declared. If the estate is known to be insolvent, so as to render it necessary to sell the lands for the payment of debts; or, if there be a will, and the widow dissents, and claims dower, then no reason or excuse exists for delay in proceeding to have it assigned. On the other hand, the statute allows eighteen months for the presentation of claims. The condition of the estate may not be known until that time. In such case, it would not seem unreasonable, or be sufficient proof of mal-administration, if no proceedings were instituted until after the expiration of that time. Allowing reasonable time for instituting proceedings, and conducting them to a decree, another six months should probably be allowed, before the imputation of waste, or neglect, could rightly be indulged. Hence, we think the Probate Court erred in charging Mrs. Hobbs rent for the first two years — 1866 and 1867. The court also erred in charging her full rent for the remaining two years. Her dower, if allotted, would have given her one-third of those rents; and consequently, the loss to the estate, by her failure to have dower assigned, is only two-thirds of the value of the rents of the undivided half, commencing with the year 1868. She should have no credit for the taxes paid for the years 1866 and 1867, and credit for only two-thirds of the taxes for the remaining years. No importance attaches to the fact that a petition was filed for her in the Probate Court, praying for dower, and afterwards voluntarily dismissed. Mr. Hobbs’ tenancy of [562] the land was only an undivided half interest at that time, and the Probate Court had no jurisdiction to allot dower.— Code of 1876, §§ 2239, 2248; 1 Brick. Dig. 617, § 71; 1 Serib. on Dower, 74. The Chancery Court alone could have decreed dower in this case. We think the Probate Court erred, also, in ruling that he had not jurisdiction to consider of the question of repairs, to render the dwelling habitable, and the plantation cultivable.—Henderson v. Simmons, 33 Ala. 291. In allowing for repairs, however, the whole expenditure must not be allowed. The first two years of the enjoyment, the administratrix had the sole use ; and for the remaining years, she had one-third of the use. This outlay should be apportioned between the parties, so as to make each pay in proportion to the benefit conferred. It is probable that one-half, or three-fifths, should fall on the estate of Mr. Hobbs, to be taken out of the rents, and the residue be rejected, as properly an expense resting on Mrs. Hobbs. This can be better adjusted on proof before the Probate Court. The claim for board and maintenance of the infant heirs can not come up in this proceeding. The Probate Court bas no power or right to consider it, on a settlement of Mrs. Hobbs’ administration with the administrator de bonis non. If this was a proceeding for distribution, in which decrees could be rendered in favor of distributees, then possibly these equities could be considered. But the present claim is by the administrator de bonis non ; and, for aught that can appear in this proceeding, all the assets may be needed for the payment of debts. It is scarcely necessary to say, that the claims of creditors are paramount to those of distributees. If the assets are more than sufficient to pay debts, and if there is a surplus for distribution, the Probate Court, in this settlement, has no jurisdiction to inquire of advances made by Mrs. Hobbs to or for her children, or to adjust any equities between them. If there is a remedy, it is in another forum. In making final settlement, the administratrix is entitled to credit for her disbursements as of the time they were made. That is, if, when she made disbursements, interest had accrued against her, then such disbursement must be applied first to the extinguishment of the accrued interest, and any balance should be deducted from the principal of assets received. If, when she made disbursements, she had received, or was liable to account for no money assets then in her hands, she should, in like manner, be allowed interest on advances thus made. Reversed and remanded.