McReynold's Ex'r v. Gentry

Napton, J., delivered the opinion of the court. The question presented by this record, is whether a widow with an only child advanced in the life time of the husband, in selecting the share of a child under the second section of the act concerning dower, is entitled to one half of “the slaves and other personal estate” of the husband, including the advancement to the child, or only one half of such property “belonging to the husband at the time of his death,” excluding such advancement. The question is a new one, so far as we are advised, and depends entirely upon the construction of our statute. The 6th section of the act concerning descents and distributions, provides, that where any of the children of the intestate who have received in his life time any real or personal estate, by way of advancement, shall choose to come into partition with the other parceners, such advancement shall be brought into hotchpot with the estate descended. This has been the law in this State since 1815. In 1845, it was for the first time enacted, that when a husband dies, leaving a child or children or other advancements, the widow shall be entitled absolutely to a share in the slaves and other personal estate, belonging to the husband at the time time of his death, “equal to the share of a child of such deceased husband, &c.” "Where there have been no advancements to the children, the contraction of the statute is plain enough. As the shares of the children [497] woui-d, under the statute of distributions be equal, the widow would take precisely the same share with each of the children. Thus, ii there Were three children, she would take one fourth of the personal property of the husband at the time of his death, and each child would take the same. But a case occurs where advancements have been made to the children and such a case the legislature does not seem to have had in contemplation, or at all events, not to have clearly provided for. The statute admits of two constructions and between these we are now to determine. One of these constructions is, that the widow takes a proportion of the estate, equal to the proportion of a child, not advanced, although advancements have been actually made. This is the construction given to the act by the circuit court of Pike county, in the case now under consideration. Upon this construction it is manifest, that where advancements have been made and in different proportions, the widow does not take the same share, or a share equal to that which any of the children take. For example, a husband dies, leaving a widow and three children, and personal estate equal in value to $3000. The oldest child has received by way of advancement $1000, the second $350, and the third no advancement. The widow gets one-fourth of the estate left, which is $750 — the oldest child gets $200, the second $850 and the third $1200 — so that the widow does not literally get a share of the slaves and personal estate, “belonging to her husband at the time of his death,” equal to any of bis children, but really gets a share equal to what all his children would have received had the law of the hotch-pot been in force. In this respect, this construction of the statute seems to militate against the phraseology. But in favor of this construction, it is. contended, that the law of hotch-pot was not made in favor of the widow, and the widow is not a por-cener within the meaning of the 6th section of our statute of descents and distributions. There is no doubt that the doctrine or rule of hotch-pot was originally only applicable as between the children, and unless the legislature have expressly made it applicable in favor of the widow, the children are not bound to bring advancements into hotchpot as between them and the widow. On the other hand, it is said that the legislature, in the second section of the act concerning dower, have put the widow in the place oi a child, and have given her all the rights and privileges incident to that relation, and among others the right to force the advanced children into hotchpot with her. Upon this construction the widow gets not only a share of the “slaves and personal property belonging to the husband at [498] the time of his death,” but in fact a portion of the estate which he had previously given to his children. In the case just put, the widow gets $1087 50 — the oldest child, who had been advanced a thousand dollars, receives $87 50 — the second child, who had been advanced $350, receiyes $737 50, and the youngest child gets $1087 50. In other words, the widow receives a share of the slaves and personal estate of the husband, belonging to him at his death, equal to what each of the children receives, taking into the account the advancement made to them during the husband’s life time. We incline to believe, that the law of hotchpot was not in the eye of the legislature, when this section of the dower law was passed, and we conclude it best to have it restricted to the distribution among children until it is deemed proper to make it apply to the widow by unequivocal language. The language of the section is, to say the least, obscure, if it was designed to introduce the law of hotchpot in favor of the widow. The policy of such a ehange is certainly questionable, and a forcible consideration in favor of the instruction given to this section of the dower law by the circuit court is found in the fact, that this provision in favor of the widow is a mere alteration, and in cases where, under the construction now given, it is not found favorable to her interests, can always be declined. Judgment affirmed.