Booth v. Stebbins

Peyton, C. J.: This is an appeal from a decree of the probate court of Madison county, dismissing the petition of Martha Ann Booth, widow of William A. Booth, deceased, praying that her 'dower may.be allotted to her in the lands, tenements and. hereditaments of which her said husband died seized and possessed.' It-is contended, on the .part, of the appellee, that the appellant is.barred of her dower by a provision made for her in the will of her husband, which was not renounced by her within the time prescribed by the statute. The testator appointed the appellant executrix of [164] his will and guardian of his minor children, and gave her authority, as such executrix, to sell, dispose of, convey, manage and control his real and personal estate as she may deem best during her widowhood, except what was placed in charge of his mother, Eliza A. A. Booth, and bequeathed to her five hundred dollars worth of such of his perishable property as she may desire for her own use and benefit, to be selected by her at or before the time of her subsequent marriage. In her fiduciary character, as executrix, she is intrusted with the disposition and management of the whole estate, with the above stated exception, and in that character she is answerable for the due and proper execution of the trusts of the will. The only provision made for her own use and benefit, by the will, is the legacy of $500 worth of perishable property, to be selected by her. There is no devise to her, by the will, of any real estate, and, by reason-thereof, she is believed to be entitled to dower under our statute, which provides that if the will of the husband devise a part of both real and personal estate, the widow shall renounce the whole, or be otherwise barred of her right to both real and personal estate. But if the will devise only a part of the real estate, and no part of the personal estate, or if it devise only a part of the personal estate, and no part of the real estate, the devise shall bar her only of the personal or real estate, as the case may be: Provided, that if the devise of real or personal estate, or both, shall be expressly in lieu of her legal share in one or both, she shall accordingly be barred, unless she renounce the provision in the will, within the time prescribed by ^law. But if, in effect, nothing shall pass by such devise, she shall not be thereby barred, whether she shall or not renounce as aforesaid, it being the intent of this act, and consonant to justice, that a widow, accepting or [165] abiding by a devise, in lieu of her legal right, shall be considered as a purchaser, for a fair consideration. Rev. Code of 1867, 469, art. 170. In the case under consideration, as there was no devise of real estate, but only a bequest of personal property, and that not expressly in lieu of her legal share of the real estate, the appellant was not barred of her right to dower in the real estate. In such a case there was no necessity to renounce the provision of the will, in order to entitle her to dower in the real estate. Por these reasons, we are of opinion that the court below erred in dismissing the appellant’s petition for an allottment of her dower. The decree is, therefore, reversed, and the cause remanded.