Walters v. Waggener

BURNETT, C. J. The plaintiff, Fred C. Walters, is the son of James W. Walters by the first wife of the latter. After the death of the plaintiff’s mother, his father married the widowed mother of some of the defendants. With her he lived until his death on April 7, 1918. At the time of his death he was the owner in fee simple of certain real estate described in the complaint. He died leaving a will of which the second clause reads in part as follows: “Second. Should my wife, Rachel Walters, die before my decease, all of the estate of which I may die seized or possessed of whatsoever character, real, personal or mixed, I give, bequeath, grant and devise unto my son, Fred C. Walters, his heirs and assigns forever. But should my wife, Rachel Walters, survive me, in such event all of the estate of which I may die seized or possessed, real, personal or mixed, I give, bequeath, grant and devise unto the First Investment & Loan Company of Eugene, Oregon, a corporation of Oregon, in trust to have and to hold the same to and for the following uses and pur — 684 — poses and upon the following trusts, viz.: To hold, manage, control, invest, re-invest and loan the same and to collect the rents, interest, profits and income thereof and therefrom; to pay out of said trust estate all proper charges and expenses of said trust including insurance against loss or damage by fire, taxes or other like assessments and including also any inheritance tax upon any devise or bequest herein contained and the proper costs and expenses.of all necessary repairs to any of said property and after the payment of the proper charges and expenses against said trust estate, to pay over the balance of the income therefrom from time to time as required by her to my wife, Rachel "Walters, so long as she shall live; and providing further that should my said wife in the judgment of the said trustee on account of sickness, accident or for any reason whatsoever, including the insufficiency of the net income from said trust estate to meet her ordinary wants, require for her comfortable maintenance and well-being at any time or from time to time sums of money in excess of the net income from said trust estate, then I authorize, empower and direct said trustee to either pay over to my said wife, or, in their discretion, apply for her use and benefit such further sums of money out of the principal of said trust estate as they, in their absolute and uncontrollable discretion, may deem reasonably necessary; upon the death of my said wife, Rachel Walters, said trust shall terminate and said trustee shall pay, transfer, set over and convey all of said trust estate remaining in its hands to my son, Fred C. Walters, his heirs and assigns forever. “Said trustee shall have full power and authority at any time, and from time to time when funds may be needed for any of the purposes of said estate, to borrow money upon the security of said trust estate at such rates of interest and upon such terms as it may be advised, and to mortgage, pledge, hypothecate any of said trust estate for such purpose. — 685 — Said trustee shall also have full power and authority to sell any of the real property of said trust estate either for cash or upon credit and to execute all necessary and proper conveyances thereof, provided that such sale shall be with the assent and concurrence of my son, Fred C. "Walters, if he be alive at the time thereof. Said trustee shall invest any funds in their hands belonging to said trust estate only in first mortgages upon real property or in municipal, state or government bonds. “During the administration of my estate, it is my will that the probate court having jurisdiction thereof make my wife, Eachel Walters, a liberal allowance for her support and maintenance.” The mother of the defendants, the second wife of the plaintiff’s deceased father, died on May 14, 1919, without ever having commenced any proceeding or taken any measure to recover her dower in the land of her deceased husband or have the same assigned to her. The estate of James W. Walters was regularly administered and closed, and the trustee conveyed the property described in the complaint herein to the plaintiff. The latter now sues the children of his stepmother and their spouses, to quiet title to this land. Their claim is that because the widow did not institute proceedings to recover her dower, there was cast upon her an estate of an undivided one third in fee simple in the lands of her husband of which he died seised, and that. she was entitled to a provision made for her in his will. This, of course, is challenged by the plaintiff. Sections 10,069, 10,070 and 10,071, Qr. L., which have come down to us unchanged from the legislation of 1854, read thus: “§10,069. If any such jointure or pecuniary provision Ice made before marriage, and without the assent of the intended wife, or if it be made after — 686 — marriage, she shall make her election, after the death of her husband whether she will take such jointure or pecuniary provision or be endowed with the lands of her husband, but she shall not be entitled to both. “§ 10,070. If any lands be devised to a woman, or other provision be made for her in the will of her husband, she shall make her election whether she will take the lands so devised or the provisions so made, or whether she will be endowed by the lands of her husband; but she shall not be entitled to both unless it plainly appears by the will to have been so intended by the testator. “§ 10,071. "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 shall commence proceedings for the assignment or recovery of her dower.” As it stood at the time of the occurrences mentioned in the pleadings, Section 10,053, Or. L., being Section 1 of Chapter 331, Laws of 1917, read as follows: “The widow of every deceased person shall be entitled to dower, or the use, during her natural life, of one-half part of all the land whereof her husband was seized of an estate of inheritance at any time during the marriage, unless she is lawfully barred thereof; provided, however, that any woman entitled to dower, may, at her election, take in lieu - of such dower the undivided third part in her individual right in fee of the whole of the land whereof the husband was seized of an estate of inheritance at any time during the marriage, unless she is lawfully barred thereof. And provided further, that when a widow shall be entitled to an election under this section, she shall be deemed to have elected to take the undivided third of such lands unless within one year after the death of her husband she shall commence — 687 — proceedings for the assignment or recovery of her dower.” It will he noted that there is an element common to Section 10,071, Or. L., and Section 1 of Chapter 331, Laws of 1917, giving a certain involuntary effect in each as an election upon the part of the widow, “unless within one year after the death of her husband she shall commence proceedings for the assignment or the recovery of her dower.” The quoted language is identical in both sections. As applied to the choice between a provision for her in the will and the claim of dower, the omission to commence proceedings for the assignment or recovery of dower results in an election by operation of law to take the testamentary provision. As between an estate in dower and an estate in fee simple of an undivided one third of her husband’s land, the same omission to commence proceedings for dower casts upon her the additional benefit of the fee-simple estate mentioned. The proceedings for the recovery of dower are as old as any of the statutes in this state. The legislature had authority to enact that the widow should have in the first place the benefit of testamentary provisions in her favor, if she omitted to sue for dower. It had an equal right, without in the least disturbing this first beneficial provision for her, to give her the additional benefit of a fee-simple estate in her husband’s realty, if she omitted action for dower. As these statutes are remedial in their nature and the law always has a tender regard for the rights of a widow, they must be construed liberally. We cannot say that the later enactment of 1917 repealed the original statutes about election between dower and testamentary provisions. If possible, we must construe both of those — 688 — statutes to stand. For instance, we read in Messick v. Duty, 86 Or. 366, 372 (168 Pac. 628), in an opinion' by Mr. Justice Bean: “Where a new remedy or mode of procedure is authorized, without an express repeal of a former one relating to the same matter, and the new remedy is not inconsistent with the former one, the later act will be regarded as creating a concurrent remedy, and not as abrogating the former mode of procedure”: Citing many authorities. Again, in Swensen v. Southern Pacific Co., 89 Or. 275, 279 (174 Pac. 158), we read from the opinion of Mr. Justice Harris: “A repeal by implication may be effected when a later conflicts with a prior statute or when one is intended as a substitute for another act. It is so easy for the legislature, when adopting one statute, to say that another statute on the same subject is repealed, and an intention to repeal, when it exists, is so likely to be expressly stated, that the courts will not presume that the later repeals the prior statute unless the two are so obviously in conflict that both cannot be executed. A repeal by implication is effected if there be such positive repugnancy between the new and the old enactments that they cannot stand together or be harmonized; but the courts will, however, if possible, construe the two statutes together and adopt any reasonable' construction which will sustain both of them.” It is true that Section 10,070, Or. L., declares that if provision be made for a widow in the will of her husband, she shall make her election whether she will take the provision made, or whether she will be endowed with the lands of her husband, but she shall not be entitled to both, unless it plainly appears by the will to have been so intended by the testator. This section, however, applies only to — 689 — dower and not to anything else. As said in Carper v. Crowl, 149 Ill. 465, 474 (36 N. E. 1040), speaking of a widow’s rights nnder a statute almost like our own: “It is manifest that the effect of her failure to elect under the statute bars only her dower and distributive share of her husband’s estate, as widow, and nothing more. There being no attempt here to assert dower, or a right to a distributive share of the personalty, the statute can have no application.” So, in this case where there has been no application for dower, none exists to complicate the situation or call for the application of the statute requiring an election between dower and testamentary provisions. There can be no choice or election between two things one of which does not exist. It cannot be that the estate in fee simple of an undivided one third of the husband’s land is identical with dower; yet that is the necessary consequence of holding that the fee-simple estate perishes, if the widow takes under the will only by failing to sue for dower. There are many points of difference between the two estates and we must presume that the legislative assembly spoke advisedly in the use of the legal terms employed in the enactment “The dower interest of a widow while unassigned is a mere right of action”: Neal v. Davis, 53 Or. 423, 433 (99 Pac. 69). “As there was no assignment of dower to the appellant, she had no esate whatever in the land of which her husband died seized, and was not entitled to the possession of any part of it”: Leonard v. Grant, 8 Or. 276, 278. “The rule is well settled that, unless otherwise regulated by statute, a mere right of dower before an assignment thereof — 690 — to the dowress is only a chose in action, and not such an interest or estate in real property as can be levied upon and sold under an execution against her property”: Baer v. Ballingall, 37 Or. 416, 421 (61 Pac. 852). There is no dower in an equity: Farnum v. Loomis, 2 Or. 29; Whiteacre v. Vanschoiack, 5 Or. 113. On the other hand, there may be a fee in an equity: Chance v. Weston, 96 Or. 390, 399 (190 Pac. 155). Dower is only an estate for life, even after ad-measurement, while the fee is an estate of inheritance. Until the widow begins proceeding's to recover the dower, she has only a chose in action, which she may abandon without commencing proceedings. The death of her husband by operation of law casts upon the widow in due time a fee-simple estate, which is the highest estate one can have in lands, liable of course to be defeated by her choosing subsequently to institute proceedings within one year to recover dower. Her omission to institute such proceedings operates as an ademption of her dower. It can no longer be considered as one of the alternatives between which she must elect as against the testamentary provision in the will of her husband. He must be presumed to have known the law, that if she chose to remain silent, as to dower or fee, the statute would operate to give her the latter estate, taking away the dower-as an element of choice between the provision in his will and the mere chose in action to recover the use of an undivided one half of his lands. Under these circumstances he 'cannot drive her, by any testamentary provisions, to abandon the fee simple which her silence gave her, and compel her to elect between what provision he made and mere dower. Proceedings to recover dower are at once — 691 — a defeasance of the fee-simple estate and a renunciation of the testamentary provision. But neither of those consequences follows here, because the widow has not claimed dower. The controlling alternative is that her omission for one year to sue for dower caused her interest in her husband’s lands to ripen into a fee-simple estate in an undivided one third thereof. The statute of 1917 gave her one third in fee because she abandoned her claim of dower. That silent abjuration of dower is her only hold on the fee. Upon that alone does her fee depend. It would be absurd to hold that this same abandonment of dower which created the fee will also work out its destruction. At common law a widow was presumed to be entitled not only to dower but also to the additional provision made for her in the will of her husband, unless that document expressly declared that its bounty was to be exclusive of dower, or else it appeared by necessary implication in plain terms that such was the intention of the testator. In other words, the widow was prima, facie entitled to both the testamentary provision and her dower, and the burden rested upon those who would dispute it, to show that the husband had expressly declared otherwise, or necessary implication led to the same conclusion. Section 10,070, Or. L., has changed this rule to the effect that “she [the widow] shall not be entitled to both, unless it plainly appears by the will to have been so intended by the testator.” That is. to say, our statute reverses the situation and puts upon the widow the burden to show that the testator affirmatively intended that she should have both dower and the bounty of her husband’s will. As this statute is in derogation of the common law, it — 692 — must be strictly construed. Under this canon of construction it is plain that tbe statute decrees an election between tbe devise and dower only. Dower is a contestant in every election tbe statute imposes upon tbe widow. Provisions antagonistic to it are not necessarily hostile to each other. The enactment has not provided for or required any • election between the provisions of the will in favor of the widow and the one-third fee-simple estate created by the legislation of 1917, Laws of 1917, Chapter 331. The reason for this deduction is found in the fact that the fee-simple estate mentioned and the enjoyment of the testamentary provision arise from and depend upon the same thing, namely the omission of the widow to commence proceedings for the assignment or recovery of her dower. At once they are opposed by and would be destroyed by a claim of dower. The conclusion is, that being incidental alike to and resultant from the same thing, the omission to claim dower, they are cumulative in favor of the widow. In the absence of statute, an election by the widow is to be discountenanced, unless manifestly required either by the express terms of the will or by plain and necessary implication: 1 Pomeroy’s Eq. Jur. (4 ed.), §493. The widow was entitled to take the provision in the will made for her benefit, because that was one effect of her refusing to sue for dower. She was also entitled to take advantage of the additional beneficial provision of the law of 1917 granting a fee springing from the same omission. The estate in fee simple, being one of inheritance, passed to her lineal descendants by the law of inheritance. — 693 — The decree of the Circuit Court should be reversed and one here entered to the effect that the plaintiff is the owner of an undivided two thirds of the real property described in the complaint, and the lineal descendants of his stepmother are the owners as tenants in common of an undivided one third of the realty. Reversed and Decree Entered. Rehearing Denied. McBride and Rand, JJ., concur.