Ostrander v. Spickard

Perkins, J. Petition for dower. Petition denied. The application was filed by Matilda Spickard at the September term, 1842, of the Warren Circuit Court. During the pendency of the proceedings, the petitioner intermarried with George G. Ostrander, who, by suggestion pursuant to the statute, was made a party. Commissioners were appointed who made an assignment of dower. On the coining in of their report, the heirs of John Spickard, whose widow the petitioner was, appeared, and being minors, a guardian' ad litem was appointed on their behalf. The guardian answered, setting up a defence. The remaining facts will sufficiently appear by the following agreed case, made by the attorneys of the parties. • “It is agreed that on the hearing of this cause the petitioner proved, to the satisfaction of the Court, every fact necessary to her recovery of dower in the land mentioned in her petition, but for the following instrument proved and read in evidence on the part of the defendants: ‘Know all men by these presents that I, Matilda Spickard, widow of John Spickard late of Warren county, Indiana, deceased, for and in consideration of the provisions for me made in the last will and testament of my late husband, do hereby release and relinquish all other rights and claims, by dower or otherwise, upon the §state of my late husband, the said John Spickard, deceased, personal; except those provisions contained and made for me in said will. In witness whereof, I have hereunto set my hand and affixed my seal this 16th day of July, 1840. Matilda Spickard, (seal.) Attest, M. Q,. Simpson, Barnabas Dawson.’ It is further agreed that said instrument, as originally [228] drawn, contained, after the word ‘deceased,’ the words ‘both real and;’ and that said Matilda executed the instrument with those words stricken out. The defendants further proved and read in ^evidence the following last will and testament: ‘ In the name of God, amen, I, John Spickard of Warren county, Indiana, do hereby will and bequeath unto Matilda, my wife, all the goods and chattels and moveable property of any kind with the increase thereof, that belonged to her at the time of our marriage; also eight acres of the corn now growing on my farm. All the remainder of my property, both real and personal, after paying my honest debts, I will and bequeath to my six children to be equally divided ataong 'them, to wit, Mary, George, John, Martha, Sarah, and Benjamin Spickard; and I hereby appoint Ephraim B. Tillotson executor of this my last' will and testament, provided my executor shall only sell sufficient property to pay my debts, to be selected out of the property last mentioned for my family; the remainder to continue on the farm for the use of my children; and further, that my wife, Matilda, remain on the place a reasonable time to manufacture her part of the wool, and have provisions for her support through the coming winter. John Spickard, (seal.) Signed, sealed,’ &c. Upon which state of facts the Circuit Court dismissed the petition. Now if the said instrument signed by the said Matilda, and the said will, bar the said Matilda of dower, and the said instrument was her election to take under the will, then the decision of the Circuit Court is to be affirmed; if otherwise, to be reversed,” &c. In examining this case, it will be proper to ascertain in the first place, what were the rights of the widow under this will, before her execution of the instrument set up as a bar of her claim to dower. By the law of England prior to the 1st of January, 1834, and of this state till the coming into force of the Revised Statutes of 1843, a widow might take a provision under the will and dower in the real estate of the testator. She was not restricted to the taking of one, nor could she be compelled to elect between them, except in those cases where “her taking dower would operate to overturn the will,” or where “ the gift to her was said to be in recom [229] pense or satisfaction of dower.” 8 Petersd. Abr. 483. — 1 Ves. Sen. 230. — 3 Ves. 249. — 1 Cox, 447.-2 Freem. 234, 241. This case is governed by the law as it existed prior to the R. Statutes of 1843; and by that law, it is very clear that the widow was entitled both to the provision made for her in the will, and to her dower. The gift to her in the will was not said to be in satisfaction of dower, and her taking the latter was not inconsistent with a single clause in the will, much less with the whole will. H. S. Lane and S. C. Willson, for the plaintiffs. R. C. Gregory, foi1 the defendants. The petitioner, then, before signing this alleged release, being legally entitled to the provision referred to in it, and also to her dower claimed in this proceeding, the question is whether the said release is a bar to the dower right? Most clearly it is not. Without searching for other reasons why it cannot have that effect, it is sufficient to say that it does not, by its terms, embrace that right. It does not purport to release her dower. It is true, the word dower is made use of to designate the interest relinquished; but it is expressly limited to her dower in the personal estate. The term is improperly used. Technically speaking, there is no dower in the personalty. The misapplication of the term, however, is too palpable to mislead any one, or to prejudice the petitioner’s rights in violation of her manifest intention. The Revised Statutes of 1843, p. 431, s. 101, have changed the law upon this subject in this state; and by an act of the British parliament, which took effect January 1, 1834, great. alterations have been made in the law regulating dower in England. Williams on R.. Prop. 175. Those changes are unimportant in the decision of this case. Per Curiam. The judgment is reversed with costs. Cause remanded, &c.