Banks v. Banks

Daniels, J.

The proceeds of the sale, from which the defendant appealing is entitled to her dower, were produced by the partition of real estate, sold under a judgment of this court, and by the statute applicable to the case she is entitled to such a sum in gross out of the amount as shall be deemed, upon the principles of law applicable to annuities, a reasonable satisfaction for her estate as doweress in the lands sold. 3 R. S. (5th ed.) 613, § 61.

This statute declares the right and prescribes the rule .for its determination in very plain and direct terms. It does not confer discretionary authority upon the courts, which may be enforced or withheld as their views of what may be proper would suggest, but the rule is one of general application, controlling alike all ■ cases comprehended within its terms. The same proportionate compensation that may be due in one case is provided for all others, and that is such a sum in gross as shall be deemed a reasonable satisfaction of the estate, calculated upon the principles of law applicable to life annuities. The sum awarded to be calculated on those princi*485pies which have for many years been applied and administered by courts of equity. Whatever the sum may be which that mode of calculation will produce, that is the amount the widow will be entitled to receive as the gross value of her estate.

The statute creates an absolute right to such an amount, rendering it subject to no contingency whatsoever. It is as fixed and definite as language can reasonably define it, and no limitation or restriction can be imposed upon it without modifying this statutory right to a corresponding degree. To do that requires the exercise of legislative authority different from that conferred upon the courts for the purpose of ordaining and promulgating rules of practice. If one qualification can be by rule imposed -upon this statutory right, others may follow it, and in that way the right itself may be so far impaired as to be divested of its chief value. The fact that the person for whose benefit it was created may accept it or not, as she chooses, can make no difference, for the legislature have provided exactly what, she shall receive in case she makes the election to take it.

The 85th rule of this court, so far as it diminishes the amount to be received below that provided for by the statute, is in conflict with this legislative provision, and where such a conflict is found to exist, there the rule itself must yield, for the power to make rules is not an authority for the adoption of any which may be attended with the effect of divesting statutory rights'of property. Over subjects of that description the power to prescribe rules cannot, with any propriety, be allowed to extend.

The order appealed from should be so far modified as to award to the appealing defendant the gross value of her dower as it is secured by the statute, the same as though the 85th rule had never been declared applicable to the subject.

Davis, P. J., and Donohue, J., concurred.

Order modified accordingly.