Peentiss, J.
delivered the'opinion of the Court.: — The plaintiffs claim the lands in question under a decree of the court of probate assigning them, with other lands, to Rebecca Hendrick, as her share of the estate of Alexander JDonihue, her former husband. The defendant occupies the lands as tenant to the inhabitants of Morristown, who claim title to the lands under the last will and testament oí JDonihue Joy which he divised the lands to them to be rented for the support of schools,and disposed of all his other estate, both real and personal, making certain bequests and devises to his wife in lieu of dower. The testator having died without issue, the widow, after probate of the will, waived the provision made for her therein, and claimed one half of the estate; and the court of probate, by a committee appointed for that purpose, assigned and set off to her, certain parcels of the estate, including the lands in question, being one half in value of all the real estate of which the testator died seized.
The decision of this case must depend upon the construction of the act, for the prolate of wills and the settlement of testate and intestate estates, passed in 1797, and the act, declaring the widow of testators entitled to dower, passed in 1799. (Comp. Stat. olded.p. 119, 165.J These acts were in force at the time of the decease of the testator ; and though they were suspended and repealed by the law of 1821, it was provided, that they should remain in force, as to all things done or transacted during their existence, and all rights and remedies which had accrued under them. By the 1st section of the former act, power was given to every person of full age, and of sound mind, to give, dispose of, and devise, his lands, tenements or hereditaments, by last will and testament in writing, to and among his children, or otherwise, as. he should think fit. By the 32nd section, it was declared, that the widow of any intestate should, in all cases, be entitled to dower, or the use of one third of the real estate, of which [335]*335such intestate died seized and possessed in his own right, for and during the term of her natural life ; provided she had not otherwise been endowed, by way of jointure, before marriage ; which case, she might waive her jointure, and demand her dower. On these provisions, doubts may have existed, whether the widow of a' testator was, in any case, entitled to dower. It would seem, however, that as dower is a right given to the wife, in all cases, and particularly and highly favoured by the common law, nothing but express negative words, or an intention clearly and unequivocally expressed in the act, could justify a construction, which would enable the husband, by will, to make an entire disposition of the whole of his estate to the exclusion of his wife, or to defeat her right of dower by making some trifling provision for her. Even where provision is made for the wife in the will, it is not, on common principles, a bar of dower, unless it is declared in express terms, or appears by clear and manifest implication, to be given in lieu of dower; and where it is so declared, the widow has her election to accept of the testamentary provision, or to refuse it, and take her dower. But it may have been supposed, as already intimated, that the provisions of the act of 1797 would require a construction, which would deprive the wife of dower, unless the husband died intestate ; and this probably was one reason, amongst others, which induced the enactment of the law of 1799, declaring the widows of testators entitled to dower, and adopting, with slight modification, the principle, which has always prevailed in the courts of equity in England, and now prevails, according to the modern cases, in the courts of common law. This act provided, that the widow of any testator might, within sixty days after the will of her deceased husband should be approved by the court of probate, waive any provision made for her in such will, and have her dower assigned her, in the same manner as though her hushand had died intestate. As the prior act had given dower to the widow of an intestate in express terms, but was silent as to the widow of a testator, it was intended by a new and positive enactment, to give to the latter, on her waiving any provision made fof her in the will, the same right to dower as had been previously given to the former : and with respect to the meaning of the enactment, or the extent of the right which was intended to be given by it, it would seem that no reasonable doubt can be entertained. Dower is a term of fixed and settled import; and whether we refer to common or statute law, its definition so far as concerns the question in this case, is equally certain and precise. At common law, it was the right, which the wife had to have and to hold, after the decease of her husband, during the term of her [336]*336f^e third Part °f such lands and tenements, whereof her husband was seized of an estate of inheritance, either in deed or in at any time during the coverture. (Co. Litt. s. 36.J As declared by statute, it was the use, as we have already seen, expressed to be given to the widow of an intestate, for and during the term of her natural life, of one third of the real estate, of which the intestate died seized and possessed in his own right. It would seem, then, to be as clear and certain as language could make it, that by the act of 1799, which gave to the widow of a testator, on waiving the provision made for her in the will, the right to have her dower assigned her in the same manner as though her husband had died intestate, she was entitled to the use, and nothing more, of one third of the real estate, during her life. Indeed, it is admitted, that this must have been the extent of her right, where the testator died leaving issue.
But it is insisted, that where the testator died without lawful issue, as in the present case, his widow, on waiving the provision made for her in the will,was entitled to one half of the real and personal estate forever; and in support of this position, the counsel rely upon the 30th section of the act of 1797. This section, it should be noticed, stood connected as a proviso to the 27th section; and the two sections, therefore, should be read and construed together. The 27th section enacted, that when any person should die seized of any lands, tenements or hereditaments, not by him devised, the same should descend to his children, or their legal representatives, &c.; and if the intestate should have no child or children, at the time of his decease, such estate should descend, equally, to the next of kin, in equal degree, and those who represented them. Provided, as the 30th section declared, that if any person should die intestate, after marriage, or, becoming of full age, without lawful issue, the father being alive, he should be entitled to the whole estate of such intestate ; unless the intestate left a widow; in which case, and also where no father was living at the time of the decease of such intestate, she should be entitled to one half of the real and personal estate forever, after the payment of debts, and other ch'ar-ges and expenses ; which should be in lieu of her dower. The whole scope and object of these sections was to regulate the descent of intestate
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Peentiss, J.
delivered the'opinion of the Court.: — The plaintiffs claim the lands in question under a decree of the court of probate assigning them, with other lands, to Rebecca Hendrick, as her share of the estate of Alexander JDonihue, her former husband. The defendant occupies the lands as tenant to the inhabitants of Morristown, who claim title to the lands under the last will and testament oí JDonihue Joy which he divised the lands to them to be rented for the support of schools,and disposed of all his other estate, both real and personal, making certain bequests and devises to his wife in lieu of dower. The testator having died without issue, the widow, after probate of the will, waived the provision made for her therein, and claimed one half of the estate; and the court of probate, by a committee appointed for that purpose, assigned and set off to her, certain parcels of the estate, including the lands in question, being one half in value of all the real estate of which the testator died seized.
The decision of this case must depend upon the construction of the act, for the prolate of wills and the settlement of testate and intestate estates, passed in 1797, and the act, declaring the widow of testators entitled to dower, passed in 1799. (Comp. Stat. olded.p. 119, 165.J These acts were in force at the time of the decease of the testator ; and though they were suspended and repealed by the law of 1821, it was provided, that they should remain in force, as to all things done or transacted during their existence, and all rights and remedies which had accrued under them. By the 1st section of the former act, power was given to every person of full age, and of sound mind, to give, dispose of, and devise, his lands, tenements or hereditaments, by last will and testament in writing, to and among his children, or otherwise, as. he should think fit. By the 32nd section, it was declared, that the widow of any intestate should, in all cases, be entitled to dower, or the use of one third of the real estate, of which [335]*335such intestate died seized and possessed in his own right, for and during the term of her natural life ; provided she had not otherwise been endowed, by way of jointure, before marriage ; which case, she might waive her jointure, and demand her dower. On these provisions, doubts may have existed, whether the widow of a' testator was, in any case, entitled to dower. It would seem, however, that as dower is a right given to the wife, in all cases, and particularly and highly favoured by the common law, nothing but express negative words, or an intention clearly and unequivocally expressed in the act, could justify a construction, which would enable the husband, by will, to make an entire disposition of the whole of his estate to the exclusion of his wife, or to defeat her right of dower by making some trifling provision for her. Even where provision is made for the wife in the will, it is not, on common principles, a bar of dower, unless it is declared in express terms, or appears by clear and manifest implication, to be given in lieu of dower; and where it is so declared, the widow has her election to accept of the testamentary provision, or to refuse it, and take her dower. But it may have been supposed, as already intimated, that the provisions of the act of 1797 would require a construction, which would deprive the wife of dower, unless the husband died intestate ; and this probably was one reason, amongst others, which induced the enactment of the law of 1799, declaring the widows of testators entitled to dower, and adopting, with slight modification, the principle, which has always prevailed in the courts of equity in England, and now prevails, according to the modern cases, in the courts of common law. This act provided, that the widow of any testator might, within sixty days after the will of her deceased husband should be approved by the court of probate, waive any provision made for her in such will, and have her dower assigned her, in the same manner as though her hushand had died intestate. As the prior act had given dower to the widow of an intestate in express terms, but was silent as to the widow of a testator, it was intended by a new and positive enactment, to give to the latter, on her waiving any provision made fof her in the will, the same right to dower as had been previously given to the former : and with respect to the meaning of the enactment, or the extent of the right which was intended to be given by it, it would seem that no reasonable doubt can be entertained. Dower is a term of fixed and settled import; and whether we refer to common or statute law, its definition so far as concerns the question in this case, is equally certain and precise. At common law, it was the right, which the wife had to have and to hold, after the decease of her husband, during the term of her [336]*336f^e third Part °f such lands and tenements, whereof her husband was seized of an estate of inheritance, either in deed or in at any time during the coverture. (Co. Litt. s. 36.J As declared by statute, it was the use, as we have already seen, expressed to be given to the widow of an intestate, for and during the term of her natural life, of one third of the real estate, of which the intestate died seized and possessed in his own right. It would seem, then, to be as clear and certain as language could make it, that by the act of 1799, which gave to the widow of a testator, on waiving the provision made for her in the will, the right to have her dower assigned her in the same manner as though her husband had died intestate, she was entitled to the use, and nothing more, of one third of the real estate, during her life. Indeed, it is admitted, that this must have been the extent of her right, where the testator died leaving issue.
But it is insisted, that where the testator died without lawful issue, as in the present case, his widow, on waiving the provision made for her in the will,was entitled to one half of the real and personal estate forever; and in support of this position, the counsel rely upon the 30th section of the act of 1797. This section, it should be noticed, stood connected as a proviso to the 27th section; and the two sections, therefore, should be read and construed together. The 27th section enacted, that when any person should die seized of any lands, tenements or hereditaments, not by him devised, the same should descend to his children, or their legal representatives, &c.; and if the intestate should have no child or children, at the time of his decease, such estate should descend, equally, to the next of kin, in equal degree, and those who represented them. Provided, as the 30th section declared, that if any person should die intestate, after marriage, or, becoming of full age, without lawful issue, the father being alive, he should be entitled to the whole estate of such intestate ; unless the intestate left a widow; in which case, and also where no father was living at the time of the decease of such intestate, she should be entitled to one half of the real and personal estate forever, after the payment of debts, and other ch'ar-ges and expenses ; which should be in lieu of her dower. The whole scope and object of these sections was to regulate the descent of intestate estates; and the latter section put the widow, where the husband died without lawful issue, in place of an heir to the estate, with the father. But no right accrued to the widow, under this section, only when the husband died intestate, seized of estate not by him devised; and then, she took one half of the estate, not, however, as doiver, but, as it was significantly expressed, in [337]*337tieU of dower. Where the husband had disposed of his estate by will, the widow, no more than the father, could claim any thing under this section. In such case, she was bound, either to such provision as was made for her in the will, or to waive it, and take her dower, or the use of one third of the real estate during her life. The reasoning which is urged, that the expressions in the act of 1799, “ dower the same as though the husband had died intestate,” mean the same share of the estate as though no will had been made, would in some cases carry the whole estate to the widow, and defeat the will entirely. By the 73rd section of the act of 1797, when any intestate died seized or possessed of any estate, having no heir by law capable of inheriting the same, the court of probate might order and decree to the widow the whole of the real and personal estate forever. Now, on the construction given by the counsel for the plaintiffs to the act of 1799, if a man, having no heir, disposed of all his estate by will, his widow, by waiving the provision made for her, would be entitled to the whole estate, to the entire exclusion of the devisees. Such a construction is unwarrantable and totally inadmissible. Dower in the act of 1799 must be taken in its appropriate sense, and meant the use of one third of the real estate during life ; and where the husband, although he left no issue, did not die intestate, but disposed of his estate by will, the 30th section of the act of 1797 was inapplicable to the case, and the widow could claim nothing under it.
It follows from what has been said, that as the decree, under which the plaintiffs claim the lands in question, assigned to the widow one half of the real estate in fee, instead oí the use of one third for life, it was unauthorized by law, and clearly irregular; and the only remaining question is, whether the decree is merely voidable, and remains in force until reversed on appeal, or may be treated as absolutely void, and a nullity ab initio. Where a court, which does not proceed according to the course of the common law, but has a special and limited jurisdiction given by statute, proceeds in a manner prohibited, or not authorized by law, the proceeding is void. Thus the decree of a court of probate, if it has exceeded its_ authority may be treated as a nullity. (Smith vs. Rice, 11 Mass. 507.) In Hunt vs. Hapgood, 4 Mass. 117, where the court of probate assigned lands, after the widow’s term of dower in them had ceased, to one of the next of kin, to the exclusion of the others, it was held, that as it appeared on the face of the proceeding that the court exercised a power not given by law, and the defect could not be cured by the allegation or proof of any facts whatever, the proceeding was not merely voidable on appeal, but absolutely void. And in the case of Sumner vs. Park[338]*338er, 7 Mass. 79, it was determined that a decree of the court oí probate, assigning the reversion of the widow’s dower, before the .expiration of her term, to oneofthe heirs,in exclusion of the others, being unauthorized by law,'needed no reversal, but might be treated as void. The court said, that all the authority, which the court of probate had upon the subject, was given by statute, and beyond the limits of that authority it could not deprive an heir of his inheritance. If the decree in the case before us had been good on the face of it, it could not be impeached by extrinsic evidence, or avoided, otherwise than on an appeal. If it had assigned only one third of the real estate of the testator to the widow as dower, [any mistake or error, in the exercise of the authority given the court, must have been corrected on appeal; and until a reversal on appeal, the dower would remain fixed and certain, and all persons concerned would be concluded by the proceeding. But on the face of the decree, the proceeding appears to be not simply an erroneous-exercise of authority given the court, but an assumption of power not authorized by law. The record of the court of probate shews, that the will of the testator, by which he disposed of all his estate, was proved and allowed ; that the widow waived the provision made]for her in the will,and claimed one half of the estate; and that thereupon, the court made an assignment, the effect of which was, to give her a freehold of inheritance in one half of the testator’s lands, when by law she was entitled to, and the court bad authority to assign her, only an estate for life in one third. Surely, such a proceeding is not to be considered an erroneous act merely, which must be corrected on appeal, but is a nullity upon the very face of it. The court might have as well assigned the whole of the real estate to the widow, as half; and if such had been the proceeding it would not have involved a plainer excess of jurisdiction. As the decree is not the act of a court, which proceeds according to the course of the common law, but of a court having special and limited jurisdiction, deriving all its authority from statute, and it appears upon the face of the proceedings that it exceeded the authority given it by law, the decree must be considered as void.
Fletcher & Sawyer, for plaintiff,
Paddock, for defendant.
Judgment affirmed.'