Hardy v. Scales

Cole, C. J. In this case the learned counsel did not disagree as to the rule of the common law which put the widow to an election between the' provisions made for her by the will of her husband and her right of dower. They fully agree that dower was a legal right which was much favored by the [455] courts, and that the presumption was thát a -provision for the widow in the will was a matter of bounty, and was not intended to exclude dower unless it was 'so expressed in the will, or there was a clear implication to that effect. But it is conceded that this rule of the common law was.long since changed by statute here, and the presumption reversed; and that since the adoption of the Revision of 1839, by the territorial legislature, a provision for the widow in the will carried with it the presumption that it was in lieu of -dower, and that it had to appear plainly by the will itself that it was in addition to «dower, in order that the widow might take both. See Ter. Stats. 1839, p. 184; section 18, ch. 62, R. S. 1849; section 18, ch. 89, R. S. 1858. By the last statute, when the widow was entitled to an election’ she was deemed to have elected to take under the will, unless, within one year after the death of her husband, she commenced proceedings' for, the assignment or recovery of her dower, or by some other unequivocal and notorious act waived the provision made for her. Zaegel v. Kuster, 51 Wis., 31; Wilber v. Wilber, 52 Wis., 298. Where the widow made a valid election waiving the provisions of the will" in her favor, or relinquishing any jointure or pecuniary provision made for her benefit, but without her assent, she was then entitled to be endowed of the lands of her husband in which her dower ’had not been barred. But whether it was necessary for her to renounce the provision made for her where the testator left real estate not disposed of by the will, in order to be endowed of such intestate real, estate, is a question of some difficulty under the statute; but its solution is not essential to the disposition of this case. It is admitted that the law of 1858 and the prior statutes relate, to real estate and to the claim of dower proper. These, enact-, inents had no application to personal- property, which was left undisposed of by the will. Therefore, unless the widow was excluded by the will itself from claiming a share in such personal estate, she took her portion under the statute of distri [456] bution (subdivision 6, sec. 1, ch. 99, R. S. 1858), without being compelled to make her election. Kempton’s Case, 23 Pick., 163. This was the state of the statutory law upon this subject when chapter 106, Laws of 1877, was enacted. And the question in this case relates solely to the construction of that act. The first section of the act amends section 17, ch. 89, R. S. 1858, and provides that the widow shall make her election whether she will take any jointure or pecuniary provision made for her without her assent, “or the share of his estate hereinafter provided.” The second section amends section 18 of the same chapter, and enacts that when any lands are devised to the widow, or other provision is made for her in the will of her husband, she shall make her election whether she will take the lands “so devised, or the provision so made,” or “ whether she will claim the share of his estate provided in the next section; but she shall not be entitled to both unless it plainly appears by the will to have been so intended by the testator.” f The third section amends section 19 so as to read as follows: “.When a widow shall be entitled to an election under either of the last two preceding sections, she shall be deemed to have elected to take such jointure, devise or other provision, unless within one year after the death of her husband she file in the „ court having jurisdiction of the settlement of his estate, notice in writing that she elects to take the provision made for her by law, instead of the provision made for her by such jointure or other provision or devise; and upon filing such notice she shall be entitled to-the same rights as to dower in his lands, and the same rights as to the homestead, as though he had died intestate, and shall, in addition thereto, be entitled^ to claim and receive the same share of his personal estate as though he had died intestate: provided, however, that nothing herein contained shall entitle any such widow to claim or receive from the estate of her deceased husband, in any of the foregoing cases, any greater share or part of or interest in his [457] estate than her rights of dower in his lands, her rights to the possession of the homestead during her widowhood, and one-third part of his net personal estate.” Now the learned counsel for the plaintiffs insist that this statute amounts to a.complete revision of the law in respect to the rights of the widow in the estate of her husband who dies testate as to any of his property, having made provision'for her in his will. He claims that its language is plainly applicable both to real and personal estate, and excludes the widow from any share or portion of such estate undisposed of by the will, where she does not renounce the provision made for her by the testator. Consequently, he says, as the widow in this case gave no notice of her election to take what was allowed her by law, presumably she chose the provision made for her in the will, and is not entitled to any share or portion of either the real or personal estate'left undisposed of by the testator, but is limited to that estate or interest specifically given her in the will. We are inclined to the opinion that this view of that enactment is correct’ and must prevail. It seems to us difficult to hold, without nullifying its language, that it has nothing whatever to do with the descent or distribution of intestate property, and does not prescribe the rules when the widow is put to her election. Under the old statute she was to make her election whether she would take the provisions in the will, or whether she would “ be endowed of the lands of her husband.” Under the law of 1877 she is required to elect whether she will take the lands devised to her, or other provision made for her benefit, “ or whether she will claim the share of his estate provided ” in the third section.' She cannot claim both the provision and such share or portion, “unless it plainly appears by the will to have-been so intended by the testator.” The change in the language of the statute, compelling the widow to elect whether she would “ be endowed with the lands of her husband,” or whether she would “ claim the share of [458] his estate,” is quite significant. Upon her giving written notice that she elected to take the provision made for her- by law, instead of the provision made for her by any jointure, or other provision or devise, the law declares that" she will be entitled to the same rights as to dower in his lands, and the same rights as to homestead, as though he had died intestate; and, in addition thereto, should be entitled to claim and receive the same share*of his personal estate as though he had died intestate; but in no event could she claim any greater share or part of or interest in his estate tluui her dower rights, her rights to the possession of the homestead during her widowhood, and one-third part of his net personal estate. It seems to us this language effectually repels the inference that the legislature, by the law of 1877, intended only to amend the sections of chapter 89, R. S., referring to dower, and shows that it was intended to apply to the distribution of intestate personal property. It is objected that this construction makes the law of 1877 operate to repeal by implication subdivision, 6, sec. 1, ch. 99, R. S. 185S; and we think it does have that effect. It seems to us the two statutes cannot well stand together in a case where the widow is put to her election. According to this view the widow, Mahala Scales, not having made her election, is not entitled to dower in any of the real estate of which her husband died seized, which was not disposed of by the will; nor is she entitled to any portion of the intestate personal property. The judgment of the circuit court giving construction to the will must therefore be affirmed. By the Court. — Judgment affirmed.