Walters v. Waggener

HARRIS, J.,

Dissenting. — I am unable to agree with the conclusion reached by my associates. It seems to me that the majority opinion gives Chapter 331, Laws of 1917, an effect which was not intended by the legislature.

That the act of 1917 does not repeal a single section of the Code is manifest from the most casual reading. That the legislature may enact a law requiring the widow to elect between dower and a provision in the will of her deceased husband, or may enact a law permitting her to take both common-law dower and under the will, or may enact a law giving to her in addition to any testamentary provision an undivided one third in fee simple in the lands of which her husband died seised, must be conceded; for this court has repeatedly held that the legislative department may control and regulate the descent and distribution of property. That the act of 1917 is remedial and for that reason should be liberally construed is likewise admitted; but it is not and cannot be conceded that either the right or the duty of the court to apply the rule of liberal construction can be so unduly extended as to authorize judicial *694legislation, even though, as suggested in one of the printed briefs filed in the companion case of Bristow v. Jennings, the concrete facts cry loudly for a generous allowance to the widow. Ours .are judicial functions. We cannot make the law. The legislative department enacts the laws, and we can do nothing except to construe and apply them.

Wherever our system of jurisprudence prevails the established rule is that the cardinal point in the construction of a statute is to ascertain the intention of the legislature; and when the legislative intention is ascertained that intention is controlling in the interpretation of the statute: Byers v. We-Wa-Ne, 86 Or. 617, 630 (169 Pac. 121); Malloy v. Marshall-Wells Hardware Co., 90 Or. 303, 320 (173 Pac. 267, 175 Pac. 659, 176 Pac. 589). Indeed, this is the imperative command of the Code for by the express terms of Section 716, Or. L., it is ordered: “In the construction of the statute the intention of the legislature * * is to be pursued, if possible.” The intention of the legislature is of course to be ascertained from the language used in the statute, and, if the language is plain, unambiguous and self-construing, judicial inquiry ends with the mere reading of the statute. But where the language of the statute is of doubtful meaning, or where, among other results, an adherence to the strict letter would lead to contradictions, or where there are seeming repugnancies, the duty devolves upon the court to ascertain the true meaning of the legislature; and in the performance of that duty the court may inquire into the policy and purpose of the act, the object intended to be accomplished, the effect and consequence of different constructions, the history and passage of the act, and. the like. Furthermore, the statute under *695investigation must be construed together with other statutes m pari materia for the purpose of arriving at the legislative intention.

Now let us see what the law was prior to the act of 1917; for by so doing we may learn something of the object then sought to be accomplished by the legislature. Section 7286, L. O. L., provided thus:

“The widow of every deceased person shall be entitled to dower, or the use, during her natural life, of one-half part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage, unless she is lawfully barred thereof.”

Section 7316, L. O. L., read as follows:

“Every person of twenty-one years of age and upwards, of sound mind, may, by last will, devise all his estate, real and personal, saving to the widow her dower.”

Section 7303, L. O. L., was headed thus: “Widow’s Election Between Devise and Dower,” and read as follows:

“If any lands be devised to a woman, or other provision be made for her in the will of her husband, she shall make her election whether she will take the lands so devised or the provisions so made, or whether she will be endowed by the lands of her husband; but she shall not be entitled to both unless it plainly appears by the will to have been so intended by the testator.”

Section 7304 was headed thus: “Widow Deemed to Have Elected, When,” and read as follows:

“When a widow shall be entitled to an election under either of the last two preceding sections, she shall be deemed to have elected to take such jointure, devise, or other provision unless within one year after the death of her husband she shall commence *696proceedings for the assignment or recovery of her dowry. ’ ’

The origin of Sections 7286, and 7303, 7304 and 7316, L. O. L., may be found in the territorial Code commonly known as the Code of 1853; and ever since that time these sections have constituted component parts of our Code: See pages 374, 376 and 354, Code of 1853. Sections 7303, 7304, L. O. L., have never been amended. Section 7316, L. O. L., stood in its original form, unaffected by any amendment until 1917; and Section 7286 was amended but once prior to 1917. In 1919, by Chapter 351, Laws of 1919, the legislature restored Sections 7286 and 7316, L. O. L., to the form in which they appeared before the amendment of 1917. However, the law as it existed between the act of 1917 and the statute of 1919 controls the instant case. The primary object of these sections of the Code was to assure to the widow her right to common-law dower, for Section 7286, L. O. L., positively declared: “The widow of every deceased person shall be entitled to dower * * unless she is lawfully barred thereof.” That it was the purpose of the legislature to make this right of dower inalienable without her consent is made clear by Section 7316, L. O. L., where it affirmed that “every person * * may, by last will, devise all his estate, # * saving to the widow her dower”; but it is equally clear that the widow could consent to relinquish her right of dower, and that when she did so consent “she is lawfully barred thereof” and was no longer entitled to dower. Under the provisions of the Code she was “lawfully barred thereof” by: (1) A' conveyance, Section 7298, L. O. L.; (2) by a jointure, Sections 7299 and 7300, *697L. O. L.; (3) by a pecuniary provision before or after marriage, Sections 7301 and 7302, L. O. L.; and (4) by will, unless it plainly appears by the will ‘that the testator intended the widow to have dower and also to take under the will. Of course the death of the husband plus the existence of the will did not upon the death of the husband &o instante bar dower, as in the case of a conveyance, or in the case of a jointure settled on her with her assent before the marriage, and the bar was not and could not be consummated until an election, actual or constructive, to take under the will occurred. However, the dominant note in Section 7303, L. O. L., is found in the words “she shall not be entitled to both” dower and under the will unless it plainly appear by the will that the testator so intended. By force of the terms of Section 7303, L. O. L., an election was inevitable, inescapable and unavoidable; and if either actually or constructively the widow elected to take under the will, then she was by the overpowering force of Section 7303, L. O. L., barred of dower and consequently was not a widow who was “entitled to dower.” In brief, the law offered to the widow the right to take under the will or to take dower; she could take either, but she could not take both.

Now let us turn to Chapter 331, Laws of 1917, and read its title and so much of the body of the act as is material here. Section 7316, L. O. L., is amended so as to read as follows:

“Every person of twenty-one years of age and upward, of sound mind, may, by last will, devise all his estate, real and personal, saving to the widow her dower or her election thereunder.”

*698It will be observed that this section was amended by adding the words “or her election thereunder.” Just as before amended this section meant that the testator could not without consent of the widow deprive her of her common-law dower, so after amendment it meant that the testator could not without her consent deprive her either of common-law dower or of her right to elect to take an undivided third in fee in lieu of common-law dower.

Section 7286, L. O. L., was amended so as to read as follows:

“The widow of every deceased person shall be entitled to dower, or the use, during her natural life, of one-half part of all the land whereof her husband was seized of an estate of inheritance at any time during the marriage, unless she is lawfully barred thereof; provided, however, that any woman entitled to dower, may, at her election, take in lieu of such dower the undivided third part in her individual right in fee of the whole of the land whereof the husband was seized of an estate of inheritance at any time during the marriage, unless she is lawfully barred thereof. And provided further, that when a widow shall be entitled to an election under this section, and shall be deemed to have elected to take the undivided third of such lands unless within one year after the death of her husband she shall commence proceedings for the assignment or recovery of her dower.”

It will be observed that this section was amended by adding the words beginning with the words “provided, however.”

What was the manifest intention of the legislature? Is it reasonable to say that the legislature intended to give an undivided third in fee in addition to dower or in addition to a devise or legacy? Such a supposition assumes a complete departure from *699the legislative purpose of allowing only one thing to the widow. Is it not plain and clear and obvious that the right to an undivided third in fee is only an alternative right? Is it not a thing in lieu of another thing? "We may readily understand the reasons which prompted the legislature to enact the amendment of 1917. It frequently happens that a husband leaves an estate consisting of nonincome producing land, and in such a case it may be that a mere life estate is practically valueless, and consequently the life estate is worth but little or nothing, whereas an undivided third in fee would be of some value and would be salable, so that the widow could, if she wished, sell it and thus obtain funds. Does not the title of the act inform us that the undivided third in fee is in lieu of dower? Are we not in express and undeniable terms informed in the body of Section 7286, L. O. L., that the undivided third is “in lieu of such dower”? The words “in lieu of” construe themselves; their meaning is not debatable, for in plain English they mean “instead of”; “in place of”; “in substitution for.” Century Dictionary; 4 Words and Phrases, 3476. And as the words “in lieu of” are here used they alone and of themselves imply that the right to take dower existed but is replaced by the thing which is substituted: See National Sewing Machine Co. v. Willcox & Gibbs Sewing Machine Co., 74 Fed. 557 (20 C. C. A. 654). This implication attains the strength of an express declaration when we read that the widow “may at her election take in lieu of dower.” An election necessarily implies the existence of two or more things. The one third in fee is one thing, and this one thing is a substitute for only one other thing, and that other thing is common-law dower; . and *700therefore if the right of dower does not exist at the very moment of election there is no right of election. Indeed, in express terms the widow is accorded the right to elect to take dower only when she is “entitled to dower” and “is not lawfully barred thereof.” But the widow is barred of dower if she takes under the will; and if she is. so barred then she is not entitled to dower, and not being entitled to dower is not entitled to the substitute for dower. In the instant case there never was a moment when it could be definitely and positively stated that the widow was “entitled to dower,” although for one year after the death of her husband it could be conditionally stated that she was “entitled to dower”; but since the condition of electing to renounce the will never happened we can now say after the lapse of the year that she was not “entitled to dower,” for she barred her right to dower by taking under the will; and let it not be forgotten that a widow “lawfully barred thereof” cannot take dower. It seems to me that, both by the language used in the title of Chapter 331, Laws of 1917, and by the language appearing in the body of the act, the legislature evinced a purpose to give to a widow the right to take a third in fee only as a substitute for common-law dower and to preserve to the widow the right of election and to require her to exercise an election either actually or constructively, for Section 7316, L. O. L., when prescribing who may make a will saves to the widow “her dower or her election thereunder.” Does not this amendment of 7316, L. O. L., necessarily imply that the widow can have an undivided third only if she elects to take it? An election means a choice between two or more things. The antecedent of the word “thereunder” may *701seem to be obscure, but when we remember that the words “or her election thereunder” were added only because of the amendment of Section 7286, L. O. L., and for the purpose of fitting’ with that amendment and then were subsequently eliminated in 1919 by the same amendatory act which restored Section 7286, L. O. L., to the form in which it appeared prior to 1917, it becomes clear that the words do not relate back to the word “will,” but that they relate to the election which is provided for in Section 7286, L. O. L., as amended. It likewise seems to me that, both by the language of thé title and by the language of the body of the act, the legislature nega-' tived any motion that the undivided third would be east upon the widow as a supplement to a testamentary provision made for her and accepted by her. Let us again look at Section 7286, L. O. L., as amended by the act of 1917. The last sentence in the section, it seems to me, places the question beyond further debate. The sentence reads as follows:

“And provided further, that when a widow shall be entitled to an election under this section, she shall be deemed to have elected to take the undivided third of such lands unless within one year after the death of her husband she shall commence proceedings for the assignment or recovery of her dower.”

Now, when is the widow deemed to have elected? The answer is, when and only when she “shall he entitled to an election under this section.’’ How can she be entitled to an election under this section unless a situation arises where she can choose between a life estate and the undivided third in fee. In the instant case can it be said that the widow was “entitled to an election under this section”? Taking under the will barred her right to take a life estate, *702and with that right barred there conld be no election. If there be no bar to be considered except that of the will, then if there is no will there is no possibility of a bar to dower; but where there is a possibility of a bar by will both the right of dower and the right to take under the will are in a state of suspension until the moment of election. And if when the election occurs the bar is chosen, then at that very moment the suspended right of common-law dower is utterly extinguished.

"What is the effect of the majority opinion? The majority opinion declares that if there be no will the widow can take one third in fee, or she can take common-law dower, but she cannot take both a life estate and one third in fee, because if she takes common-law dower she cannot take that which is allowed only as a substitute, and if she takes one third in fee she takes it only as a substitute, and hence cannot also take the thing for which it is substituted. The majority opinion also holds that if there be a will, then the widow may take common-law dower or under the will; and if she takes common-law dower she relinquishes her right to take under the will, and of course acquires no right to a one third in fee because that estate is only a substitute; but if she takes under the will she bars her right to take common-law dower, and notwithstanding she “is lawfully barred thereof,” and for that reason not entitled to dower, she has cast upon her a substituted estate when the original thing for which it serves as a substitute cannot be taken. If she takes under the will she has forced upon her the substitute although she could not take under the will and also take the original thing even though she devoutly wished to do so.

*703If the writer has correctly interpreted the legislative intention, then that intention must he pursued if possible. This court has held that when the intention of the legislature is ascertained “such intention and the object aimed at controls the literal interpretation of particular language in a statute, and an expression capable of more than one meaning must be taken in the sense harmonizing with such intent.” State v. Young, 74 Or. 339, 403 (145 Pac. 647). This court unanimously approved the following rule as announced in Lewis’ Sutherland on Statutory Construction (2 ed.), Section 347:

“It is indispensable to a correct understanding of a statute to inquire first what is the subject of it, what object is intended to be accomplished by it. When the subject matter is once clearly ascertained and its general intent, a key is found to all its intricacies; — general words may be restrained to it, and those of narrower import may be expanded to embrace it to effectuate that intent.” State v. Hyde, 88 Or. 1, 49 (169 Pac. 757, 171 Pac. 582, Ann. Cas. 1918E, 688).

Another rule universally accepted is:

“Where a statute deals with a genus, and the thing which afterward comes into existence is a species thereof, the language of the statute will generally be extended to the new species.” 36 Cyc. 113.

Section 7303, L. O. L., affords to the widow the right to elect to take under the will or to take dower, but it also declares that “she shall not be entitled to both” unless it plainly appears otherwise by the will. Section 7304, L. O. L., affirms that the widow is deemed to have elected to take under the will “unless within one year after the death of her husband she shall commence proceedings for the assignment or recovery of her-dower.” Neither Section *7047303 nor Section 7304, L. O. L., lias been amended since tbe adoption of the code of 1853, and so they read in 1918 exactly as they read before the enactment of Chapter 331, Laws of 1917. When Section 7286, L. O. L., was amended in 1917 the amendment created the privilege of electing between dower and an alternative estate consisting of a third in fee, and the amendment also declared that the widow is deemed to have, elected to take one third in fee “unless within one year after the death of her husband she shall commence proceedings for the assignment or recovery of her dower.” The sole circumstance that the language last quoted was apparently taken verbatim from Section 7304, L. O. L, is exalted by the majority opinion and made the all-controlling factor, and to it every other of the many opposing circumstances in both the title and the body of the estate is made subservient.

If it was the purpose of the legislature to give to the widow the right to take one third only when the circumstances were such that she could take common-law dower if she had wished to take such dower, then the legislative purpose is balked by the construction which makes a single circumstance alhcontrolling in face of the fact that there are many opposing circumstances. But if the legislative purpose was to allow one third in fee only when the situation was such that the widow could have elected to take common-law dower, then that legislative purpose need not be balked but can be fully executed if only we apply the rules of construction which have been formulated in order that the legislative intention may be pursued.

It may readily be conceded that before the amendment of 1917, the dower referred to in Section 7304, *705L. O. L., was a life estate or common-law dower as defined in Section 7286, L. O. L., for at that time the Code included but one species of the genus dower, and that species was a life estate, or common-law dower. The amendment of 1917 created an alternative right consisting of an undivided third in fee which the widow could elect to take in lieu of common-law dower; and there can be no valid objection to calling this substitute “election dower,” for, indeed, this is the identical name given to it in some of the states; and, moreover, some forms of jointures are known as equitable dower. The substitute provided for by the act of 1917 may then be appropriately called election dower and treated as a new and purely statutory species of the genus dower, and when so treated the word “dower” as used in Section 7304, L. O. L., may be expanded so as to embrace both species of dower provided by Section 7286, L. O. L., as amended. If, then, the widow wishes to renounce the will and elect to take a life estate, she must do so by commencing proceedings in the manner prescribed by statute for the assignment or recovery of the life estate. The Code does in fact prescribe a procedure for the assignment or recovery of a life estate, but there is no proceeding prescribed by statute for the assignment or recovery of an undivided third in fee, or election dower, and, hence, under the authority of Section 983, Or. L., in effect since 1862, any process or mode of proceeding may be adopted which may appear most conformable to the spirit of the Code. A suit in partition would be adequate; or the filing of a paper with the County Court renouncing the will and declaring a wish to take election dower ought to be sufficient. This seeming repugnancy between Sections 7286 and 7304, *706L. O. L., may be dissolved, and by so doing full effect and meaning may be given to every other word in every one of the sections in the Code. If the word “dower” appearing in Section 7304, L. O. L., is not expanded, then the entire body of Sections 7286 and 7316, L. O. L., must be contracted and warped and the plain and ordinary meaning of many of the Nords entirely ignored. The expansion of a single word in Section 7304, L. O. L., will conform with the spirit and purpose of the statute and accomplish the object at which the statute was aimed. The case of Goltra v. Penland, 45 Or. 254, 264 (77 Pac. 129), furnishes an example, which we here should follow, of the application of the rule which permits the court to dissolve a contradiction or repugnancy by construing a statute according to its spirit and purpose rather than according to the technical meaning of the words used.

It is my conclusion that under the law as it was in 1918 no widow could take an undivided third in fee by an election, either actually or constructively made, unless she was a widow who was “entitled to an election”; that a widow was not “entitled to an election” unless she was entitled to common-law dower; that she was not entitled to common-law dower if her husband made provision for her in his will, unless she renounced the will. Where there was a will the right to an undivided third in fee was dependent upon the right to common-law dower, and the latter was in turn dependent upon a renunciation of the will. Until renounced the will was an insurmountable obstacle to the taking of either common-law dower or election dower. For the foregoing reasons,' I dissent from both the reasoning and the conclusion of the majority of the court. The decree ought to be affirmed.