Security Co. v. Bryant

Loomis, J. The principal question for review in this case relates to the construction of the third, fourth and fifteenth clauses of the will of Gardner P. Barber, deceased. The third clause is as follows:—“ I give, devise and bequeath unto my beloved wife, Abby H. Barber, to her and her heirs forever, the sum of fifty thousand dollars, the same to be in lieu of dower.” The fourth clause gives $25,000 in trust to Mrs. Barber, for the use of Lizzie G. Barber (an adopted daughter), and after her death the principal sum to be paid to her children, but if no children survive her, then $5,000 of the principal sum is to be given to her husband and the balance to Mrs. Barber and her heirs. Following this are nine clauses containing as many legacies of money to different persons, aggregating twenty-one thousand dollars, making in all ninety-six thousand dollars of legacies payable in money. There is a general bequest of the rest and residue of the estate, both real and personal, to his wife, and then follows the fifteenth clause, which is as follows:—“ I hereby make, constitute and appoint my beloved wife, Abby H. Barber, and Caleb M. Holbrook, to be executors of this my last will and testament; and I hereby direct my said executors that if my said estate shall not be sufficient to pay in full the aforesaid legacies, then the devise to my beloved wife, Abby H. Barber, and to Abby H. Barber in trust for Lizzie G. Barber, shall be paid first and in full, and the other devises pro raía.” Mrs. Barber accepted the provisions of the will. The record shows that the assets of the estate do not exceed forty-eight thousand dollars, with which to pay legacies calling for ninety-six thousand dollars. The precise question in controversy is, whether the tw legacies, to Abby H. Barber $50,000, and to Abby H. Bar [321] ber, trustee for Lizzie G. Barber, $25,000, abate pro rata, or whether the widow has the preference by virtue of her position as purchaser of the testamentary estate given for the relinquishment of her dower. The law is well settled by the uniform current of authorities that a bequest in lieu of dower, accepted by election, is so far based upon a valuable consideration that it has priority over all other legacies and will not abate with them. Such is the doctrine of this court in Lord v. Lord, 23 Conn., 327. But the learned counsel for the defendant suggested that the doctrine as to this state was not well founded, because the distinction between dower at common law and that which obtains in this jurisdiction had been overlooked. At common law the right attached to all the lands of which the husband was ever seised during coverture, while under our statute it attaches only to the real estate of which he died possessed. Upon this distinction it was argued that, while there would be a good consideration for the relinquishment of the dower where the common law prevails, there could be no valid consideration under our law. This argument .assumed that the consideration must consist in the relinquishment of a title vested in the wife during coverture. This we think is a misapprehension. The consideration is the relinquishment of dower for the testamentary gift, but the contract is not made during coverture. The husband’s offer of a price for his wife’s legal estate is only made by the will, which takes effect upon his death, and the wife’s acceptance can only be after that event; so that what the wife relinquishes by her election must be the dower estate which vested in her at her husband’s decease. The consideration therefore is of the same nature precisely under our statute as under the common law, although under the latter it may happen to be of greater value, which fact has no materiality in the argument. When the wife accepts the offer in the will she parts with a vested legal estate, and takes, instead, the testamentary compensation by virtue of a contract then made. The result of our brief [322] review is to confirm the old doctrine that the widow takes as a purchaser, and therefore we conclude that tha legacy to her, constituting the purchase money, must be paid in preference to other legacies, which in the comparison are considered mere bounties. This however does not conclude the matter at issue. We must again recur to the will to determine what price was offered for the dower, and upon what conditions. If the latter require the sum first named to be reduced, then the reduced sum is regarded as the price offered. But the fact that the wife takes her legacy as a purchaser will always be important when the words of the condition are of doubtful import or application. The offer of a specific sum in lieu of dower is always to be construed as if the words “ to be paid in full in preference to all other legacies ” were added; hence, if a subsequent condition does not make it clear that the testator intended to reduce the sum offered, it must stand with the preference attached. With these considerations in view we come to the question as to the construction to be given to the fifteenth clause. Did the testator thereby intend to take away the preference which the law would otherwise give to his wife over the legacy to the daughter, and to make both legacies abate pro rata in the event of a deficiency ? We find no words which make such intent manifest, and the probabilities are all against it. It is evident that the contingency of a deficiency so great as to render it impossible to pay the legacies to the wife and daughter was never thought of, much less provided for. It was thought possible that there might be less than ninety-sis thousand dollars, but no such shrinkage as to reduce the assets to seventy-five thousand. The testator therefore brought these nine items into one class to share a pro rata abatement, but where the testator made only one class subject to abatement, the defendant would make two. The claim for such a construction is founded on the words “to be paid first and in full,” as aj>plied to the legacies to the wife and daughter. These words, it is argued, place the two [323] legacies in question on the same plane in the mind of the testator, not for the purpose of withdrawing them from the pro rata class and preserving the status given previously in the will, but for the purpose of repealing (so to speak) the preference given by the law to the wife over the daughter. This view we cannot accept. The words import an undoubting belief in the mind of the testator that these two legacies could and therefore should be paid in full ; but it by no means follows that they indicate the mind of the testator in case they could not be paid in full. In case of a shrinkage of assets below the ninety-six thousand dollars called for to meet the eleven items in the will, the testator wanted the loss to fall on the more remote objects of his bounty and not upon the wife and daughter; hence he very naturally said, for the purpose of protecting their legacies and of leaving them just as they stood previously in the will, that they were to be paid first and in full, while the others should abate pro rata. The rulings of the court rejecting certain parol evidence were so clearly right that we refrain from any discussion of the matter. There was no error in the judgment complained of. In this opinion the other judges concurred; except Granger, J., who dissented.