Gardner v. Gardner

10 R.I. 211

• Court: Supreme Court of Rhode Island
• Decided: March 6, 1872
• Status: Published

Opinion

Brayton, C. J.

This case comes to this- court by appeal from the Municipal Court of the city of Providence exercising probate jurisdiction. The appellant, Almira Gardner, made application in writing to said court, representing that she is the widow of Brayton Gardner, late of said Providence, deceased, upon whose estate said court had granted letters of administration ; that said Brayton Gardner, after his marriage to her, was seised of certain real estate lying within the state, whereof she, the said Almira, is dowable, and prayed that her dower might be assigned and set off to her out of said estates, and proper notice given of such application to all parties interested in the premises.

Upon hearing the parties the Municipal Court passed a decree dismissing said application, and refused to assign dower as prayed. From this decree the said Almira Gardner has appealed to this court, and for reasons of appeal said that said decree is wrong , and erroneous in law and in fact. Upon the hearing before this court the appellee insists that the petition was rightly dismissed, and that the Municipal Court had no rightful jurisdiction, that court not being adapted to any general action like this. The jurisdiction claimed for that court by the appellant is given, if at all, by chapter 607, entitled an act in amendment of chapter 202 of the Revised Statutes, “ Of dower, and the action of dower and of jointure.” The sixteenth section of that chapter was amended to read as follows: “Any court of probate in the state, which shall have granted letters of administration, or letters testamentary, on the estate of any deceased person, shall have power upon the application of the widow of the deceased to cause dower of such widow to be assigned and set off to her, in .all or any of the lands, tenements, or hereditaments lying within the state, which belonged to the deceased during his intermarriage, whereof such widow is dowable,” and provided for notice to the parties as in other probate cases.

The language of this amendment is quite broad enough and quite clear enough to give the court of probate power to cause dower to be assigned, and to that end to hear the parties and to determine if the widow be dowable, of what estate, and in what manner the dower shall be assigned, and though other courts may be better adapted to decide the questions which may arise upon such application, either by their organization or their mode of proceeding, it is quite clear that the legislature designed to vest in the Probate Court the jurisdiction to hear and determine the questions incident to a proceeding to set off dower, and formally to cause it to be assigned, or to determine that the widow is not entitled by law to have it. The court clearly has jurisdiction.

Assuming that this jurisdiction is given, and the court has power to hear and determine, the appellee claims that a certain antenuptial agreement which is produced here, and which was produced in the court below, is a bar to the widow’s claim to dower, and this petition ought now to be dismissed, and the widow decided to be not entitled to dower.

It is not claimed that this agreement is a legal bar, but is sufficient in equity only to bar the right, and that the court, if it can adjudicate at all, must entertain equitable defences as well as legal. We do not think this was intended. There is nothing to indicate that other than legal questions were to be determined, and that the court was not to proceed according to law, and to administer the law of dower. It would require very strong language to induce us to hold, that equitable defences were intended to be entertained, or any equity power exercised. There is a constitutional provision that no equity power shall be conferred upon any inferior court beyond what they at the adoption of the Constitution then exercised by law. The presumption would be against the intent to give the court power to act upon principles of equity more than a court of law. We think it was intended that they should proceed according to law as a court of law, and they could no more entertain such a defence than this court could on the law side. The agreement set up here is therefore in the proceeding nó bar to the claim for dower. There must be a decree in favor of the petitioner for her dower to be assigned.' ' Decree accordingly.