Griffith v. Griffith's Executors

Chase J. I consider the acts' of assembly of 1704, 1715, & 1729, as a clear ami explicit recognition of the right of the wife to one third part of the personal estate; and I consider these successive acts of the legislature, and the uniform practice conformable thereto, as the best evidence of what was the common law in the opinion and judgment of the legislature and the citizens of Maryland. . Suppose it questionable, and not well settled in England, the acts of the legislature, and the practice here, prove, beyond a doubt, that it was the general opinion the wife was entitled to a third part of the personal estate by the common law. Magna Charta ch. 18, saves to the wife her reasonable part. Bracton, who wrote soon after this statute, lays it down as the common law, that after the payment of debts and funeral expenses, the wife was to have one third, &c. There is no reason why the saving in Magna Charta should be limited to the customary right of the wife. Such an exposition is confined and illiberal, and not warranted by the statute. The saving is general, and must relate to the common law right of the wife. There are no restrictive words in the statute to confine the operation of the saving to the right by custom. At common law the wife was entitled to a third part of the personal estate, independent of the husband; and a bequest made to her by the husband, was not considered In lieu and exclusive of her dower; but she would take both. The custom was in derogation of the common law, and abridged the right of the wife. • According to the custom of the city of London, if the husband devised a part of his personal estate to his wife, she was concluded by the bequest, and deprived of her customary right, unless it appeared by his will he intended she should have both. Our acts of assembly are grounded on the custom of London. The acts of 1704 and 1715, give the wife an election. The act of 1729 concludes her by the bequest, unless she renounces the will. According to our acts of assembly the wife could take the bequest and the third part also, if such appeared to be the intention of the husband. The acts of 1704, ch. 14, and 1715, ch. 40, passed in the same years, relating to attachments, are allowed to be founded on the custom of London; and these acts, concerning the dower of the wife, from their analogy to the custom of London, in that respect, I presume were grounded on that custom. • It is the opinion of Judge Blachstone that the wife at common law was entitled to a third part of the persona! [123] estate; and this opinion is supported by great and respectable authorities, Bracton and many others; and Blackstone cites a decision of Finch, in the time of Charles I. (which was about the time our charter was granted) in support of this opinion. The advocates for the contrary doctrine adopt the opinion pf Lord Coke, which I have presumed to controvert on the authority of Bractnn and Judge Blackstone, and for the reasons I have assigned. Upon the whole, I am of opinion that the plaintiff in this case is entitled to one third part of the personal estate of her husband, after deducting the debts and funeral charges. Martin, (Attorney-General,) and Eoxeingsworth, for the appellants. A. Habb, Kest, and Winchester, for the appellee. Goedsborough, Ch. J. and Duvaee, J. concurred in this opinion. Judgment upon the case stated for the plaintiff. The defendants appealed to the court of appeals; and the judgment of the general court was affirmed in the Court-of Appeals at November term, 1801.