Clark v. Griffith

Stockton, J. David Dem,aree, by his will, after directing the payment of his debts, devises to his wife two hundred and forty acres of land, and bequeathed to her twelve hundred dollars, to build her a house, and all his household and kitehen furniture. He gives to his brother John, all his personal property in the state of Indiana. The remainder of his estate, personal and real, he directs to be sold, and the proceeds divided equally between the minor heirs of John Demaree, James M. Rice, and Samuel Demaree, except five hundred dollars to the American Bible Society. At the death of his wife, he directs that the real estate devised to her, shall go to the heirs of John Demaree. The defendant was appointed executor. The first question arising in the cause, is as to the sufficiency of the plaintiff’s replication'to. defendant’s answer. The District Court adjudged that this replication was insufficient, by reason of its not showing that Susan Jane Demaree, the widow, at the time of claiming her dower, had relinquished all rights conferred upon her by-the will of her husband. The point made bj the counsel to [408] that court, was, that the relinquishment should have been executed by her, with all the formalities requisite, in the conveyance of an interest in real estate. And we gather from the record, that the court was of opinion, that such a relinquishment should have been signed and executed by her, and it not being shown by the replication that this had been done, it was insufficient, and the plaintiff not entitled to bring this suit. This ruling of the District Court was erroneous. The conclusive reason why no such relinquishment was necessary, is to'be found in the fact, that there does not appear to be any such inconsistency between the widow’s claim for dower, and the right to the estate devised to her by the will, as should necessarily put her to an election between them. The allowing of both to stand, does not defeat, interrupt, or disappoint the other provisions of the will. Unless a devise to the wife, to be ascertained either from express words, or by necessary implication, is intended to be in lieu of dower, she will not be compelled to elect which she will take, but is entitled to both. If it is left in doubt, whether it was the testator’s intention that she should take the devise in addition to her dower, she will not be put to her election. Corriel v. Ham, 2 Iowa, 556 ; Church v. Bell, 2 Denio, 430; Adsit. v. Adsit, 2 Johns. 448; Smith v. Kinshern, 4 Ib. 9. In this view of the case, the question whether it was necessary for the widow to have made and executed a formal relinquishment of her rights under the will, at the time of entering her protest against it, and filing her petition to have her dower assigned her; as well as the question whether such protest and petition amount to such relinquishment, in the sense in which the word is used in the statute, becomes immaterial, and it is not necessary for us to decide it. If she was entitled to the devise in addition to her dower, she was not required to make any relinquishment of her rights under the will. This much will perhaps be sufficient to dispose of the questions arising upon the demurrer as to the necessity of a formal relinquishment by the widow. Upon another ques [409] tion which, has been urged in the argument, as to the quantity of interest in the personal estate the plaintiff is entitled to recover, it may be proper for us to give our views. The plaintiff claims to be entitled to recover one-half of the personal estate of the decedent, he having died without issue. This claim is based upon-section 1410 of the Code. . We do not-'think this section applies to the present case. -Taking it in connection with section 1408, we think it is intended to refer primarily to the estate of a person who dies intestate, without issue. Where the estate, or part of it, is disposed of by will, the widow is not entitled to one-half. The husband, though dying without -issue, may by his will deprive his yole of all interest in his estate, except her dower, as allowed by -law. - If a portion of the estate remain undisposed of by will; the question-whether she1 is entitled to any part of it, and if so, to what part,' does not necessarily arise in this case, and is not decided. If no part is disposed of by will, and the husband dies without issue, one-half.go.es to his widow. In such case, however, she takes it by inheritance; as-heir, rather than as her dower as a widow. In this case,-David D.emaree, by his will, disposed of all his estate. The widow was therefore entitled to but one-third of the personal estate, as -her dower, after the payment of debts. "Some question is made in the argument, as to the sufficiency of the petition, and as to right of the plaintiff to bring this.suit against the defendant as executor, without alleging that his accounts had been settled by the county court, and the'-'amount remaining in his hands-ascertained. The petition seems to us to be inartificially drawn, and with less distinctness-of averment than we should ordinarily'feel disposed .to excuse.- As it was not demurred to, however, and is in some dégree helped out by the averment of the replication, it may be allowed to be sufficient. But as the judgment must be reversed, and the cause go hack for further hearing in the District Court, we suggest that the merits of the cause, and the ends of justice, may be more satisfactorily arrived at by a repleader, which we recommend to both parties. Judgment reversed. -