dissenting. The principal question presented by the record and assignment of errors in this: is the widow, upon the death of her husband, entitled to dower of the personal estate of which he died possessed? This question, from the many interests involved in and affected by,it, assumes an importance scarcely inferior to any which has arisen or is likely to arise in the jurisprudence of this State; and from the loose and seemingly conflicting legislation on the subject it is rendered somewhat perplexing. It is conceded on all hands that no such right exists at common law, nor did ever exist in this State prior to the taking effect of our Revised Statutes; which was not until the 20th day of March, 1839. But on the part of the appellants it is urged that such right is thereby created; and in support of this conclusion they rely upon the provisions contained in the 20th, 21st, and 24th sections of ch. 52, of the Revised Statutes, which contain the following provisions, viz: “Sec. 20. A widow shall be entitled as part of her dower to the one-third part of the slaves whereof the husband died seized or possessed during her natural life, and one-third part of the personal estate in her own right.” “Sec. 21. If a husband die, leaving a widow and no children, such widow shall be endowed of one-half of the real estate, and also one-half of the slaves of which such husband died seized, and one-half of the personal estate, absolutely in her own right.” “See. 24. In cases of provision made by will for widows in lieu of dower, such widow shall have election to accept the same, or be endowed of the lands, slaves, and other personal property of which her husband died seized.” If these provisions stood wholly disconnected and entirely independent of other statutory provisions relative to, and prescribing what disposition shall be made of the estates of persons deceased, the conclusion that they were designed to create for the widow a right of dower in the personal property of her husband might with great reason and justice be deduced therefrom: or at least a legal right of property absolute and unqualified to one-third part thereof without regard to the debts of the testator or intestate or the expenses incident to the administration of his estate. But they do not stand alone and cannot be considered without reference to such other statutory provisions as have been passed in relation to the disposition of such estates; they being as I conceive unquestionably laws in pari materia, which according to well established rules for construing statutes, must be considered together, and, if practicable, be so interpreted that every part and provision may stand and be operative. It is therefore a duty incumbent upon this court to ascertain from a careful consideration of all the provisions, of law on the subject the true rule thereby prescribed in regard to the disposition to be made of the estates of deceased persons, because there is no other mode by which the rights of the widow in respect thereto can be truly ascertained. The statute providing for the administration of estates of deceased persons, by express and explicit declaration, makes it the duty “of every executor and administrator immediately after receiving his letters to collect and take into possession the goods and chattels, moneys, books, papers, and evidences of debt of the testator or intestate, except the property reserved by this act as the absolute property of the widow, and he shall make a true and perfect inventory thereof, describing the books and papers, the debts due or to become due to the deceased, the names of the debtors, the date of the contract, the amount of interest due thereon, the rate of interest, and such further description as will render it a perfect inventory of the estate:” and requires him to annex thereto an affidavit, stating, “that it is a full inventory and description of all the moneys, goods, chattels, books, papers, and evidences of debt, and of all debts due or becoming due so far as he has been able to ascertain them, except the property reserved as the absolute property of the widow:” and to file such inventory in the.office of the clerk of the court of probate, within sixty days ■after the letters are granted; and binds them “immediately after having the personal estate of the deceased collected, to cause the rsame and also the slaves to be appraised,” and makes such inventories and appraisements evidence for and against the executor or administrator. Rev. St. Ark. ch. 4 § 24, 43, 44, 45, 51, 56. The 62d section of the same statute provides “that in addition to dower, ■a widow shall be allowed to keep as her absolute property all the wearing apparel of the family, her wheels, looms, and other implements of industry; all yarn, cloth, and clothing made up in the family for their own use, such grain, meat, vegetables, groceries and other provisions on hand as may be necessary for the subsistence of the widow and her family for twelve months, and as many beds, with bedding and such other household and kitchen furniture as shall be necessary for herself and the family of the deceased residing with her and under her control; nor shall any property acquired by the widow be sold to pay any debts of her husband contracted before marriage, nor shall such property be embraced in the schedule of the effects of his estate should the same be deemed insolvent.”
The property in this section specified is, I apprehend, to be given to the widow, to whom it descends immediately from the husband by operation of law, without regard to the debts of the testator or intestate, and therefore, as it is in no event subject to the payment of his debts or the expenses of the administration of his estate, the executor or administrator succeeds to no right and takes no interest whatever therein and for this reason is not required to make any inventory thereof. And this, and this alone is the property referred to in the 43d and 44th sections of this statute quoted or cited above as “the property reserved by this act as the absolute property of the widow.”
The 63d section declares that “in addition to the property specified in the preceding section, the widow, when the estate is not insolvent, may take such personal property as she may wish, not-to exceed the appraised value of one hundred and fifty dollars, and the executor or administrator shall deliver to the widow, such articles as she may select, not exceeding the value aforesaid, and take her receipt therefor, which shall be a good voucher in the settlement of his accounts.” But the 64th section provides that “the widow shall apply for such property before it is distributed or sold and not after.”
The design of the provisions last quoted is, as I conceive, to give to-the widow, as between her and the other legatees or distributees of the estate, but not against creditors, the sum of one hundred and fifty dollars, in addition to the property which she takes by virtue of the provisions of the 62d section of this statute; provided she applies for it and receives the property at its appraised value, before it is distributed or sold; otherwise she forfeits this right, and .can receive such distributive share only upon the settlement by the executor or administrator and the distribution of the estate, as the law, independent of this provision, declares she shall receive; that is, the one-third part of what remains after the debts and expenses of administration are paid, if this grant of $150 worth of property should even cover the whole of the distributive estate, the widow if her claim is properly presented, is entitled to receive it to the exclusion of the legatees or heirs.
The 65th section prescribes that “every executor or administrator, as soon as practicable after the appraisement shall 'Sell at public sale, all the personal estate of the deceased, except slaves and specific bequests,” unless the sale is forbidden by the testator, in which event it shall not be sold, unless the sale thereof is necessary for the payment of debts. The bills of sale are required to be filed in the office of the clerk of the court of probate within thirty days after the sale. And the executor or administrator shall, according to the provisions of the 79th section of the same statute, on settling his accounts, be charged with, and be accountable for the net proceeds of the sale of all personal property sold by him under the provisions of this act, notwithstanding the same may amount to more or less than the appraised value thereof. And he is required by the 105th section annually to present to the probate court for settlement “a fair written statement or account current in which he shall charge himself with the whole amount of the estate according to the sales-bill and appraisement, including all debts due the estate, and money on hand at the death of the deceased, and credit himself with all sums of money lawfully expended in settling such estate, either by the payment of debts or otherwise, exhibiting with such account the receipts and vouchers tor all moneys paid out.” And the 131st section requires the court at every settlement to “ascertain the amount of money which may have come to the hands of the executor or administrator from all sources, and the amount of claims allowed by the court, or passed by the executor or administrator against the estate; and if there should not be sufficient to pay the whole of the debts and expenses of administration, the money remaining after the expenses of administration are paid, shall be apportioned among the creditors according to the provisions of this act.” From the various provisions above it seems to me perfectly clear that all of the personal estate, except slaves, and that to which the widow succeeds and takes unconditionally under the 62d section of this statute, passes to the executor or administrator, who is bound to collect and take the same into his possession, as soon as practicable after his right thereto accrues, by the death of the testator or the grant of administration, and make a complete inventory thereof, and cause the property to be appraised and sold, unless the sale be forbidden by the will, and even then if necessary, to pay debts, or the widow demands and receives $150 worth of it at the appraised value; in which event the residue must be sold. And that such assets constitute the primary fund for the payment of debts, which if necessary, must be wholly appropriated to the payment of the debts of the testator or intestate and the expenses of administration. But if it is not thereby exhausted, the residue, on final settlement made with the probate court, of the account of the administration, must then be distributed “to the widow and heirs or legatees” according to the provisions of the 143d section of this statute, which enacts that “when any executor or administrator shall ha^e made final settlement of his accounts with the court of probate, by which the balance in his hands distributable to the widow and heirs or légatees shall be ascertained, and shall have paid over to the widow, distributees, or legatees, or the guardian of any minor legatee or dis-tributee, their share of the estate, such executor or administrator may file in the probate court an abstract of such payments, and the receipt of the widow, legatees, distributees, or guardian,” which at the next term “if no objection be made thereto and none appear from the face of the papers” shall be allowed and entered of record, and the executor or administrator discharged from so much of the balance found against him on such settlement “as the persons whose receipts are so allowed are entitled to.” This statute unquslionably contemplates and recognizes the right of the widow to some portion of the residue of the personal estate remaining in the hands of the executor or administrator, after he has paid the debts of the testator or intestate, and all expenses of the administration thereof. Yet this cannot be a right of dower; because in legal contemplation dower is a right which attaches upon the marriage in favor of the wife upon the estate of the husband, to which the law extends and applies it; it remains inchoate during his life, but becomes consummate of complete immediately upon his death; according to the common law it attaches to real property only, in which the husband during coverture is seized of an estate of inheritance, and it is a right which no act of his can defeat. Yet like every other right of property it derives its existence from the municipal authority, and may be at any time enlarged, restricted, modified, or even abrogated by law, but until such modification is expressly declared, and clearly and explicitly defined, it must be regarded as a right which attaches upon property of which the husband is seized during the marriage, a specific-portion whereof the widow is entitled to receive upon his death, and to hold in her own right during her natural life against his heirs, legatees and creditors. If this be true, and I think it cannot be doubted, then it is perfectly clear that the right of the widow in the personal estate of her deceased husband, as recognized and provided for by the 145th section of the administration law, is not dower, but the right to a distributive share of the surplus remaining in the hands of the executor or administrator after all demands against the testator or intestate are satisfied; which accrues when such surplus exists, but otherwise, or until then, has no existence whatever, and can seldom, if ever, be satisfied with the specific property of which the testator or intestate died seized; because in the administration of the estate such property is expressly required by law to be sold, without any election in the administrator to preserve and distribute it in specie. Now, if it be true that the widow has in the life of her husband an inchoate interest in the property of which he is seized, and in which the law gives her dower, which right becomes consummate and perfect upon his death, it is certainly true that his personal representative possesses no legal authority to sell that portion of the estate which her right embraces, because the estate immediately vests in her; and the heir, upon whom the descent is cast, is bound to assign to her such portion of the estate to her separate use, and if he fails to do so, she may procure an assignment thereof in the manner prescribed by law, whether she takes it absolutely or for life only; and he as the representative of her deceased husband possesses no interest in it, and therefore, a sale thereof made by him without her concurrence or assent, could neither divest her right to the property nor invest the purchaser with any right thereto: consequently all the statutory provisions requiring him to collebt, take into his possession, inventory and sell “oil the personal estate of the deceased except slaves andspecific bequests,” and the property reserved by the administration law as the absolute property of the widow, and administer the same together with the money of the deceased on hand at his death, and such money or assets as may be collected by him on the book accounts, credits or choses in action of the deceased, by first paying the expenses of the administration, and then the expenses of his funeral and his debts, and lastly distributing the residue in his hands “to the widow and heirs or legatees” must be inoperative as to one-third part of the estate, if the widow is by virtue of the 20th section of the statute concerning dower, entitled to one-third part of the personal estate whereof her husband died seized or possessed: because by this interpretation they seem to me to be in direct and irreconcilable conflict. So that of course-, if no other construction can be justly given to them, whereby such conflict may be avoided, both cannot stand, and of necessity, one must yield to the other. But they can, in my opinion, by a different interpretation well warranted by law, stand and operate together, and the design of the legislature be truly and fully accomplished; and if this be so, they unquestionably ought to receive such construction. To do this, nothing is required but to considerthe interest granted the widow in the personal estate of her deceased husband, by the 20th and 21st sections of the dower act above quoted, what the statute itself declares it shall be, an absolute right of property, instead of a limited or life estate, which emphatically and in all legal parlance, is the extent of interest or estate in property given or received as dower. Although I concede the authority of the legislature to grant to the widow any estate in the property of her husband commensurate with that held by him at the time of his death; yeti insist, that an estate, not for life but for a greater or less period of time, is not dower nor in the nature of dower, although it may be given in the place of dower; and not being dower, the incidents which attach to an estate in dower, do not necessarily attach to it, and will not unless it be so expressly or by necessary implication, provided or declared by law: indeed, being an estate unknown to the common law, it has no incidents except such as are declared by the statute creating it. And as none are declared by the statute in question, the right of the widow in the personal estate of her deceased husband, does not vest until his debts and the expenses of the administration are paid; when she becomes entitled to an estate absolute and unlimited in the one-third part of the personal estate of every description remaining in the hands of the executor or administrator, who is bound to distribute the same to her, at the same time that he is bound to make distribution to the heirs and legatees according to the provisions of the 143d section of the administration law 5 consequently the law makes no provisions for assigning or setting apart to the widow any portion of the personal estate as dower. And if there is no child, she is in like manner entitled to one-half of the personal estate.
This, for the reasons assigned already, I, upon the most careful and mature consideration of the subject, which it has been in my power to give it, consider to be the true interpretation of all the statutory provisions relating to this right of the widow, and the true rule thereby prescribed in respect to her right in the personal estste of her deceased husband; that is, she takes the property mentioned in the 62d section ofthe statute concerning administrators, absolutely and unconditionally, without regard to the solvency or insolvency of the estate. She also takes absolutely and unconditionally against the heirs or legatees, but conditionally against the creditors, one hundred and fifty dollars, worth ofthe property at its appraised value; and she takes absolutely and unconditionally, by virtue of the 30th section of the statute concerning dower, the one-third part of the personal estate remaining after the debts and expenses of administration are paid, if the testator or intestate left a child or children or any lawful descendant living, otherwise she in like manner takes one-half thereof, to be distribute d to her by the executor or adminstrator, according to the provision of the 143d section of the administration law. Such disposition of the estate appears to me to reconcile all the seemingly conflicting provisions of the various statutes relating to this subject, and give to each such operation and effect as it was designed to have, preserves not only to the widow, but likewise to ,all the parties interested in the estate as heirs, legatees, or creditors, a fair and just portion of the estate; whilst any interpretation of the statutes by which any different disposition of the personal estate is made, not only gives the widow an undue portion of the estate ,to the prejudice of the heirs or legatees and the credtors, but furthermore, brings the various statutory provisions on the subject into irreconcilable conflict. Therefore the judgment of the circuit court disallowing the widow dower in the personal estate of her deceased husband, ought in my opinion to be affirmed — for which reason I dissent from the opinion of this court pronounced in this case.
Judgment reversed.