White v. Dance

Mr. Justice Lawrence delivered the opinion of the Court: Joseph Dance died in 1867, leaving a widow, but no lineal descendants, and leaving a will, by which he disposed of all his estate, giving to his wife the income only of his real and personal property during her life. The widow renounced the will under the tenth and eleventh sections of the statute of dower, and afterwards, under the fifteenth section of the same statute, she elected to take in lieu of dower, one-kalf the real estate remaining after the payment of debts. The circuit court decreed to her one-third of the personal estate, and from this order the executors have appealed, insisting that she is not entitled to any portion of the personalty except her specific allowance. They claim that by her second election, to take one-half the remaining realty in fee, in lieu of dower, she lost her right, not merely to dower in the lands, but also to her share of the personal estate, which, it is insisted, is comprehended under the term dower, as used in said fifteenth section. We are of opinion the statute can not properly receive such a construction. The language of the tenth section is, that she may, by renouncing the will, “ take her dower in the lands, and her share in the personal estate of her husband.” The language of the fifteenth section is, that she “ may, if she elect, have in lieu of her dower in the estate of which her husband died seized, whether the same shall have been assigned or not, absolutely and in her own right, as if she were sole, one-half of all real estate which shall remain after the payment of all just debts and claims against the deceased husband.” These two sections are to be construed together. By the first, she takes her dower in lands, and her share in the personal estate. By the second, she takes one-half of the real estate in lieu, not of her dower in the realty, and of her share in the' personalty, but of her dower alone. The word dower, here, must be considered as having been used in the same sense in which it had just been used in the tenth section, that is, in its proper common law sense, having no relation to the widow’s interest in the personal property, which is designated in the tenth section as a distinct interest, and by appropriate language. Moreover, the fifteenth section uses the language, “ in lieu of her dower in the estate of which her husband died seized,” which is language only appropriate to realty, both in the terms “ dower” and “ seized.” The section was clearly designed to give to the widow the right to elect between two different estates in the realty, without disturbing her interest in the personalty. Decree affirmed.