Warren v. Morris

4 Del. Ch. 289

Opinion

The Chancellor :—

This is a bill for instructions touching the disposal, by the Executor of Elijah Morris deceased, of the unappropriated balance of the decedent’s personal estate. The rights of the parties claiming an interest in the fund depend upon several questions, which have been argued at the bar.

First, is the question whether the testator’s widow, Ann E. Morris, is entitled to claim both the legacy given to her by the will and her dower, in the testator’s lands— taking with respect to the dower, an equivalent interest in the proceeds of sale—the lands having been converted into money under the direction of the will and discharged of dower by reason of her joining in a deed to the purchaser. This not being a case under our statute, touching the election by the widow between dower and a devise of real estate, it is governed by the general doctrine of election as administered in courts of equity. This doctrine precludes a party taking a benefit by deed or will from asserting any title or claim clearly inconsistent with the provisions of the instrument under which he takes—putting him to his election between the two. In its application to the case of dower it is nowhere better stated than by our Court of Appeals in Kinsey vs. Woodward, 3 Harring. 474. “In regard to dower,” says the Court, “it “ seems from all the cases to be an established rule that “ a court of equity will not compel the widow to make “ her election, unless it be shown by the express words “of the testator, that the devise or bequest was given in “lieu of or satisfaction of dower ; or unless it appears, that “ such was the testator’s intention, by clear and manifest “ implication arising from the fact that the dower is plainly “ inconsistent with the devise or bequest, and so repug- “ nant to the will as to defeat its provisions. If both “ claims can stand consistently together, the widow is “entitled to both, although the claim under the will may “ be much greater in value than her dower.” This statement of the rule is fully sustained by authority. Birmingham vs. Kirwan, 2 S. & L. 451; Strathan vs. Sutton, 3 Ves. Jr. 249; Gibson vs. Gibson, 1 Drewry, 411, (17 E. L. & Eq., 352); Hall vs. Hill, Dru. & War. 107; Bending vs. Bending, 3 Kay & Johnson 257; (cited 2 Sto. Eq. Jur. sec. 1088 a); Adsit vs. Adsit, 2 Johns. Ch. R. 451.

Applying this rule to the present case I am of opinion that there is sufficient in this will to put the widow to her election. This conclusion is not drawn from the fact that the testator has directed his real estate to be sold and has given to his widow a share of the proceeds. These circumstances it is fully settled do not per se sufficiently demonstrate an intention to bar dower. French vs. Davis, 2 Ves. Jr. 572. Ellis vs. Lewes, 3 Hare 310, (25 Eng. Ch. R); Gibson vs. Gibson, 1 Drewry 42, (17 Eng. Law & Eq.) Wood vs. Wood, 5 Paige 596. But the very terms of the bequests made to the widow do, upon a fair and reasonable construction, import that this was to be the whole provision taken by her out of the testator’s estate. The bequest runs thus : “ I give and bequeath unto my beloved wife “one third part of my whole estate according to law, with “ the exception of her interest in two indentured servants “ and one bay mare hereinafter mentioned.” Now the obvious and common sense meaning of this clause is that the widow shall take of the whole estate, consisting of the proceeds of both real and personal estate converted into one fund, such proportion as she would have taken in his estate by law had the husband died intestate, to wit, one equal third part, neither less nor more. One-third-part “ according to law,” must mean that share or proportion, to wit, the one-third part, which the law gives to the widow under an intestacy., It can bear no other sense. And as applied to what the testator terms “ my whole “ estate,” it must have contemplated his estate previous to any assignments of dower out of the lands. For- a widow after taking dower has already her share, “accord“ing to law,” of the lands, and as to that part of the testator’s estate there remains nothing to which the terms of the bequest could apply. With respect to the residue remaining after an assignment of dower, the widow could take nothing “ according to law,” but only by way of testamentary gift over and above her share according to law ; and yet it is perfectly clear that nothing is here given but her share or third part “according to law.” Whenever she has got that the bequest is satisfied. The whole purpose of this clause was to leave to the widow her exact proportion of the testator’s estate under the intestate law and the statute of distributions, modified as to the real estate by the direction for its conversion, the effect of which was to substitute for her dower out of the land an equivalent share of the proceeds, a modification of dower incidentally beneficial to the widow and a sufficient inducement for her acceptance of the bequest.

This phrase “ according to law,” although an inapt expression is not on that account to be rejected. In the interpretation of wills all expressions however inartificial, are to be construed as helps toward ascertaining the testamentary intent. Such effect has been given to kindred expressions by our own courts as in Burton vs. Burton et al., 4 Harring. 38, and Horsey vs. Horsey’s Exrs. 1 Houston 438. My conclusion is that the widow was at the testator’s death put to an election between dower and the legacy, and her joining in the conveyance of the testator’s real estate without any stipulated consideration for her right of dower must be taken as her election of the benefit given by the will.

This brings us to the second question, viz : whether her share of the estate is subject to abatement with the other legacies for the payment of the debts, or is liable only for such deficiency as may remain after the other assets shall have been exhausted. ' Or to put the question in the form presented by this case—the debts having already been paid out of the general estate, is the widow entitled to the full satisfaction of her legacy out of the remaining assets before any part shall be applied to the other legacies ? I am clearly of that opinion. In the first place, a widow is deemed a purchaser of a devise or bequest made to her in lieu of dower. The transaction has all the force of a contract between her and her husband. Consequently upon a deficiency of assets to pay both debts and legacies, a legacy to her in lieu of dower does not abate with. the other legacies, but is liable only for such deficiency as may remain after the other assets shall have been exhausted. Nor does it matter that the benefit given to her may exceed the value of the dower, for the testator is the judge for what price he will purchase the renunciation of her dower, and no legal injury can result to other devisees or legatees, they being mere volunteers from whom the testator might if he saw fit, devise away his whole estate. The authorities on this point are numerous and uniform. Burridge vs. Bradey, 1 P Wms. 127; Blower vs. Merret, 2 Ves. Jr. 420; Davenhill vs. Fletcher, Amb. 244; Heath vs. Dendy, 1 Russ. 543; Norcott vs. Gordon, 14 Simons 258 (37 Eng. Ch. R.); Loocock vs. Clarkson, 1 Desauss 471; Stuart vs. Carson, 1 lb. 500; Isenhart vs. Brown, 1 Edw. 411; Williamson vs. Williamson, 6 Paige 298; Hubbard vs. Hubbard, 6 Met. 50; Pollard vs. Pollard, 1 Allen 499; Reed vs. Reed, 9 Watts, 263; Lord vs. Lord, 23 Conn. 327. It is .true that a testator may so charge a devise or bequest made to the widow as to make it liable to his debts and in such case she must take it so charged though made in lieu of dower, and must submit to an abatement with other devisees or legatees in case of a deficiency of assests ; and unquestionably the intention so to charge her devise or legacy may be implied. Accordingly it- is argued that the bequest to this widow of one-third “according to law, ” is by this phrase subjected to all the incidents which would have attached to a distributive share of one-third taken by the widow under the statute of distributions, had there been an intestacy, and .that among these incidents it is subject to an abatement for the payment of debts equally with other distributees. But this carries the force of the phrase “ according to law ” beyond the testator’s real purpose. He meant by it simply to indicate his reason for designating one-third for her share under the will just as it he had said, “ I give to my wife “such proportion of my estate as she would take bylaw “i.e., one-third,” or “ I give her one-third in lieu of dower.” But I can read no intention that what he gave as a legacy in lieu of dower should be taken otherwise than subject to the real incidents attaching to such legacy, and among them to a preference against other legacies with respect to its liability for debts. The words “according to law” so far as they go to fix the proportion or to explain the testator’s reason for it, have a natural sense, such as the testator of an inartificial will may be supposed to have comprehended ; but these words must be severely strained to make them import into the will, the statute .of distributions with all its legal consequences, converting the legacy in effect into a distributive share so as 'to dispossess the widow of the benefit of the rule applicable to a legacy given in lieu of dower. This is to read the bequest as if the testator had said, not “one-third part of my whole es“tate according to law,” but “one-third &c. to be taken “subject to all the same incidents as if it were taken under “ an intestacy. ” It is difficult to suppose that a testator could have employed words so simple and inartificial as those of this bequest with a view to legal consequences so technical.

But I now proceed to another distinct ground for exempting the widow’s legacy from debts as between her and the residuary legatees. A residuary legatee has no right to call upon the particular legatees to abate. The whole personal estate not specifically bequeathed must be exhausted before these legatees can be obliged to contribute anything out of their bequests. 1 Roper on Legacies 411; 2 Redfield on Wills, 549.

The rule proceeds upon the clear principle that until both the debts and the legacies are paid there is no residue. The principle applies although the residuary clause makes no reference to the legacies; a fortiori, where, as in this case, the residue is expressly given “ after deducting the “ aforesaid legacies, ” which are the bequest to the widow of one-third of the whole estate, the legacy of $200 to Mrs. Clymer and the specific bequests of the indentured servants and bay mare. An argument against the exemption of the widow from abatement with the residuary legatees was drawn from the use, both in the bequest to her and in the residuary bequest, of the same phrase “ my whole “ estate, ” the bequest to the widowbeing of “ one-third part “ of my whole estate ” &c., and the residuary bequest being of “ the balance of my whole estate. ” Showing, as was argued, that, in the contemplation of the testator these bequests were to attach to different parts of the same subject-matter ; that out of whatever funds the widow might take, the residuary legatees should also take, she taking one-third and they two-thirds. The effect of such a construction would be to divide between the widow and the residuary legatees the surplus after first paying the debts out of the whole, since otherwise as the estate has turned out, the widow will take all and the residuary legatees nothing. The whole force of this argument lies in its treating the bequest to the widow and the residuary bequest as being in effect the division of a specific fund, as if a testator having an invested fund of $10,000 should give his widow one-third of it in lieu of dower and the remaining two-thirds to his four sons, and the question of abatement for debts were to arise between them. Now, in the first place, even were this such a case, it would be the fair and reasonable inference that the testator intended the legatees to take their respective portions of the fund subject to the different legal incidents attaching to each of those portions springing from their different relations to the testator,—the widow being a purchaser,—and the residuary legatees being volunteers. The testator would be presumed to understand this difference and in the absence of any expression to the contrary to intend it to operate. But in the next place, this is not the division of a specific fund, but only the ordinary case of a general residuary bequest after legacies previously-given ; and more than this, the residue is here given expressly subject to the prior payment of the legacies. First is a bequest to the widow of one-third of the estate, which has already been construed to mean the whole estate as held by the testator at his death subject to the direction for conversion and to the reservation of the indentured servants and bay mare. Then there is a bequest of $200 to Mrs. Clymer, and also of the servants and bay mare to other children of the testator. Then follows the residuary bequest" in these words ; “ I give and “ bequeath unto my four sons Sec., the balance of my whole “estate after deducting the aforesaid legacies to be equally “divided among them.” The use here of the words “my “ whole estate ” being the same words used in the bequest to the widow to whom he had given “ one-third part of my “ whole estate Sec.,” is purely accidental and had no special significance. “The balance of my whole estate” means nothing different from the ordinary phrase “all the residue “ of my estate.” This, then, is a bequest to the sons, not of any specific portion of the estate, say two-thirds, as to the widow it was a gift of one-third, but it is a bequest of the general residue more or less, and that too, expressly; after deducting the prior legacies, to wit ; the widow’s third part of the whole estate, the legacy to Mrs. Clymer and the specific legacies. 0

I proceed now to apply the rule exempting the widow’s share from abatement for debts. The effect is to give her the whole fund now before the Court, subject to the right of'the post-testamentary children which will be presently considered. The whole estate amounted say to $7722.33. One-third part of this sum, say $2574.11 was the widow’s share in lieu of dower.

Of course the whole estate is subject first to debts and expenses of administration, as well against the widow as against the other legatees ; but these being paid she is entitled next in priority to have the surplus applied toward satisfying her legacy. That will wholly absorb the unappropriated balance of $1829.02, leaving no assets for the other legacies, except the servants and bay mare which were expressly reserved for the specific legatees. Mrs. Clymer takes nothing, because she is a volunteer claiming against a purchaser; and the four sons named in the residuary clause take nothing, both because they are volunteers and, additionally, because they are residuary legatees. There remains the third and last question, viz; what are the rights of the post-testamentary children, Mary Laura and Ann Eliza, what shares of the estate do they take, and how are their shares to be made up ?

The questions are answered by our statute for the benefit of children born after a will is made. Rev. Code,274,sec. 12 &c. Under this statute such a child takes the'same portion of its parent’s estate both real and personal that he would have been entitled to, if such parent had died intestate. Elijah Morris left to survive him the widow and six chil dren including the two post-testamentary children. Had he died intestate these two children would have been entitled each to one equal sixth part of the then balance of the whole estate, subject to the widow’s dower in the lands and to her third of the personal estate. This is the share to which the post-testamentary children are entitled. Then with respect to the mode of making it up for them, it is material in this case to observe that the statute in its provisions for making up a post-testamentary share of real estate does not disturb any titles vested under the will. It leaves all the dispositions of the will touching both real and personal estate in full force, charging the divisees and legatees with the contribution proportionably of such sums in money as may be required to make up the share of a post-testamentary child after applying to such share any intestate estate which there may happen to be. Hence the provision is that under certain proceedings to be taken in the Orphans’ Court, the whole estate, real and personal shall be appraised with a view to ascertain the value of the entire post-testamentary share ; then if there be any intestate real estate, that is to be allotted at a valuation subject to dower toward making up the share. Should such intestate real estate prove insufficient, then any intestate personal estate is to be applied. If there shall be no intestate estate, either real or personal, or if such as there may be shall still leave a deficiency in the share to be made up, then the direction of the statute is (p. 275, sec. 19) that “ the devisees and legatees taking under the “will of the deceased parent shall proportionably con- “ tirbute such sum or sums of money as added to the intes- “ tote estate, will be sufficient to raise the portion of such “after-born child or children." No remedy for effecting the contribution among the devisees and legatees is provided ; but the subject is left to the ordinary jurisdiction of the Court of Chancery which is quite adequate. It appears then that the policy of the statute is not to revoke the will, nor to create an intestacy in such sense as to give to the after-born children the same shares or interests in specie which they would have taken had no will been made. Its manifest purpose is to leave all the provisions of the will in full force, securing for the after-born children an equivalent in value for the shares in specie of which they may have been deprived by the testator’s dying testate. This principle of construction was applied to a statute in Pennsylvania not so clear in its provision as ours. Coates vs. Hughes, 3 Binn. 498. So, also to the New York' statute—to which ours is similar. Mitchell vs. Blain, 5 Paige 588. This construction of the statute relieves the case of the embarrassment which otherwise would result from the conversion of the real estate under the direction of the will. For we may give full force and validity to this direction so as to leave the title of the purchaser unincumbered by the claim of these children, and deal with the proceeds of sale in estimating and making up the shares of the children as personal estate of the testator, precisely- as if he had died leaving the money instead of the land.

We are now enabled to ascertain exactly the shares of the post-testamentary children and to decree how the shares shall be satisfied. The testator has left, after the payment of his debts and expenses of administration, a clear estate of $1849.02 which balance though resulting from a conversion of the real estate is to be treated as personal estate. The children take out of this balance such part as the statute of distributions would have given them under an intestacy, i. e. each, one-sixth of the surplus after deducting the one-third given by that statute to the widow, which is one-ninth part of the whole, making for each of the children $205.44. No occasion for abatement, or for contribution between different legatees, arises in thise cas, as ordinarily is necessary where several legatées take an actual, benefit under the will ; because here the widow is the only legatee who takes any thing, except the specific legatees. But for the rights of the post-testamentary children, she would be entitled to the whole unappropriated balance. The adjustment is therefore fully made by deducting from the unappropriated balance of $1849.02, the shares of the two children, leaving the residue of it to the widow. There can be no doubt that under the statute this unappropriated balance, though falling to the widow as a legacy in lieu of dower, is subject to contribute towards the share of a post testamentary child. There is no distinction in this respect between specific, general and residuary legacies, including a legacy given in lieu of dower, unless in the latter case a special equity as between the widow and post-testamentary child arises out of the fact that the latter has taken a share of the real, estate discharged of dower in consequence of a legacy to the widow, in which case he will not be allowed additionally to claim a ratable proportion of the legacy given in lieu of the dower. Mitchell vs. Blaine, 5 Paige 590. Such an equity does not arise in this case. The result now arrived at disposes of a question raised in the argument as to the destination of a supposed lapsed share of John Morris under the residuary bequest in consequence of his dying after the date of the will and in his father’s lifetime. Had there been a residue, after satisfying the widow’s legacy, to pass to the residuary legatees, there would be a lapsed share in consequence of John’s death, and the question would then have arisen whether such lapsed share should sink into the residue or result to the heirs at law as intestate estate, in which latter case that share would have been first applicable to the claim of the post-testamentary children, and the deficiency would have been apportioned between the widow’s legacy and the residuary estate. But as the estate has turned out there is no residuary estate, and consequently there is no lapsed share to be taken into consideration.

The result of the whole investigation is that the post- testamentary children, Mary Laura and Ann Eliza, are each entitled to one. equal ninth part of the unappropriated balance in the hands of the executor, and that the widow, Ann E. Morris, is entitled to the residue. In this case there is no necessity to resort to the Orphans’ Court under the provision of the statute. The statute contemplates the proceeding in the Orphans’ Court only where there is real estate rendering a valuation necessary in order to ascertain the amount of a post-testamentary share, and in some cases where there is intestate real estate, to allot a part of it or the whole toward making up the share. But where it is, as here, a simple question of abatement or of contribution for making up an ascertained sum to which a right attaches, the ordinary jurisdiction of a court of equity is adequate, and the adjustment may be made here. It will be observed that in making up the post-testamentary shares, I have taken no notice of the indentured servants and the bay mare. The widow is entitled to have the legatees of these contribute proportionately with her, but the value is small, and an interlocutory order would be necessary in order to ascertain it. • I have presumed that .the widow would waive this claim and let a decree be made irrespective of these small legacies ; but if she insist upon this right, it must be conceded.

Note. An appeal was taken in this case, and it was heard at the June Term, 1872, of the Court of Errors and Appeals. That Court held the legacy to the widow to be one-third of the estate after the payment of debts and funeral expenses, subject to abatement in favor of the post-testamentary children, instead of one«third of the original estate as held by the Chancello^ This was the result of a different construction given to the words u according <( to law,” and the decree was altered in accordance with that view. See 4 Houston's Del. Rep. 414.