Husted's Appeal from Probate

Hinman, C. J. This is an appeal from the decree of a court of probate, accepting and approving the assignment of dower in the estate of Aaron Husted to his widow, the appel [492] lant. The appellees make the preliminary question whether a decree of this character is subject to the general provision of the statute authorizing appeals from orders and decrees of probate in the settlement of deceased persons’ estates; and the claim is made that, by the express provision of the statute, the doings of the freeholders in the assignment of dower, when returned to and accepted by the court of probate, are final, because the statute provides that such proceedings “ shall ascertain and establish such dower, and all persons concerned shall be concluded thereby.” Gen. Statutes, p. 421, § 83. We, however, are clearly of opinion that it was not the intention of this statute to take away the right of appeal given to all persons aggrieved by a decree of probate in the settlement of an estate. The only object was to declare such assignment of dower to be final, and to conclude all parties in interest so long as such decree should remain unreversed. It is said that the language of the statute in relation to appeals from probate does not apply to the case because the assignment of dower is no part of the settlement of an estate, and therefore not within the language giving an appeal to all persons aggrieved by any order or decree in the settlement of an estate. If it was true that, by construing the statute very literally, the words might be regarded as not broad enough to give the right of appeal in a matter of this sort, it would still be for the court to determine whether such a right of appeal is not within the spirit of the statute and therefore to be held to come within its provisions; as it is very manifest that the legislature never could have intended to leave so important a matter as the assignment of dower to the final determination of the freeholders and the court of probate, when every other proceeding in the settlement of an estate is the subject of an appeal by any person aggrieved. This is quite obvious from the section of the statute providing generally for appeals from probate, which, after specifying orders and decrees in the settlement of the estates of deseased persons, and of insolvent debtors, and in the settlement of guardians’ accounts, goes on and provides further for an appeal “ in any other matter whatever, unless where it [493] is otherwise specifically provided by law.” Gen. Statutes, p. 231, sec. 88. And if it might admit of a doubt whether the assignment of dower was a matter arising in the settlement of a deceased person’s estate, it would still come within and be governed by this general language. But the assignment of dower is certainly in a popular sense a matter arising in the settlement of an estate. An estate cannot be said to be fully settled where there is a widow entitled to dower, until the dower is assigned to her. It is true, it is made the duty of the heirs rather than of the administra^ tor or executor to cause dower to be assigned. But this is no criterion. An estate cannot be said to be frilly settled until all parties having an interest in it have had their shares assigned to them, or their debts paid to them, so far as there is estate for that purpose, — no matter whether they are creditors, heirs, legatees, devisees, or the widow, if there be one. The remaining question relates to the estate to or in which this widow was' entitled to dower. The statute gives her “ a right of dower in one-third part of the real estate of which her husband died possessed in his own right.” Gen. Statutes, p. 421. Does this mean that she is entitled to one-third, either in value, or in the estate itself, just as it was at the time of the husband’s death, or one-third of the estate as it is at the time dower is assigned ? The question is important, as it is obvious that buildings, which may constitute the bulk of an estate, may be destroyed before dower is assigned, in which case she would take more than a third, if the husband’s death fixed definitely her interest, and might indeed be entitled to all the estate that was left at the time of the assignment of dower; and where the assignment is long delayed, as in this case, the estate may be greatly improved by building or otherwise, in which case she would take less than a third at the time the dower is assigned. By the common law the widow is entitled to dower as the estate is at the time it is assigned to her. It is so laid down in Bacon’s Abridgement, title Dower, B, § 5, citing Co. Litt., 32 a, and 2 Inst., 82 ; and it is here said “ If the heir improve the land by building or sowing it the wife shall receive her dower with [494] the improvements upon it, because by her husband’s death her title was consummate, and the improvements as to her part were quasi upon her land ; for which reason likewise, if the land be impaired in value in the time of the heir, she shall share in the loss, unless it were voluntary by the heir himself, and then she shall recompense herself in damages against him.” And this rule has been adopted in this country in all the cases where the question has arisen, as appears by the authorities cited upon the appellant’s brief; and we are referred to nothing to the contrary. The question then must be, whether our statute has changed the common law in respect to the right of the dowress to a share of the improvements put upon the estate after the right of dower has accrued, and before it is assigned. There is no material difference between our present and our most ancient statutes on this subject. The old statutes gave the widow “ right, title and interest by way of dower in and unto one-third part of the real estate of said deceased husband, in houses and lands which he stood possessed of in his own right at the time of his decease, to be to her during her natural life.” Statutes of 1750, p. 44. To a certain extent tiiis law does change the common law in respect to dower. But the statute itself indicates clearly the extent of the change. And when it speaks of giving the wife dower, or, to use the old phraseology, of giving her by way of dower a third part of the real estate of which he stood possessed in his own right, it intentionally uses a technical'word, and so far as it does not qualify the meaning of the word in its technical sense it must be assumed that it was the intention to use it in that sense ; in other words to give it its ordinary technical and common-law signification. The statute in plain language limits the right of the dowress to estate possessed by the husband at his death, instead of giving her dower in all the lands of which he was seized during coverture’. And this, we think, was the whole change intended. If we are correct thus far, then the question is whether; since the death of her husband, the widow has done anything to deprive herself of her right to dower in the improvements [495] which have been put upon the estate, as well as in that portion which remains as it was at the husband’s death; and we are of opinion that she has not. She has resided many years as a member of her son’s family, and as there was during this time no attempt to assign her dower, it may be assumed that the use of her portion of the whole estate was a just compensation for her support. The son during this time took down the old buildings and erected others for the more comfortable accommodation of his family, and his mother made no objection but approved of it, and continued to reside with her son until his decease and with his widow afterwards. This is claimed to be conduct on her part which estops her from claiming dower in the new buildings ; or if otherwise, that it amounts to a license to the son to build upon her estate, and that the house so built should be regarded as the son’s personal estate. And it is.claimed that it was her duty to assert her right to a share of the improvements at the time they were made unless she intended to waive her right to them. But at law the new buildings became annexed to the soil and a part of the realty. There is no claim that they were not annexed to the soil in the usual mode, and permanently affixed to it. The party erecting them was the sole owner of the estate, subject to his mother’s dower, and can not be presumed to have erected them with a view to their becoming personal estate. The claim would be stronger had they been erected by the dowress and been claimed by her as personal estate. Baldwin v. Breed, 16 Conn., 60, is a much stronger case than this, so far as the equity of the party erecting the buildings is concerned ; and yet the court held that the building in that case was a fixture which belonged to the owners of the freehold. For these reasons we are of opinion that there 'is error in the judgment of the superior court and we advise a new trial. In this opinion the other judges concurred.