delivered the decision of the court.
The case being submitted to the court at special term, it was held that the personal property after the payment of debts did, by operation of law upon her refusal to take under the will, all vest in the widow, and that she was not bound to account therefor or for any part of said property, nor the administrator to any one else but herself alone. And accordingly judgment was rendered for the defendants with cost. To reverse which is the object of the present petition.
What was the value of the testator’s real estate, or whether the provision made by him for his widow under the will was liberal or otherwise, or whether the decision rendered will have the effect to defeat wholly or in part the bounty intended for the several legatees, the case presents us with no means of judging, and perhaps we are not concerned- to know. The rights of the parties depend wholly upon the construction of the general law as applicable to cases.of
In the consideration and decision of the case two questions arose and were disposed of, which it is necessary again to consider.
I. Whether the rights of the parties were to be governed by the law in force at the time when the original will was executed and published, or by the law in force when the testator died.
II. Whether under either law the widow is entitled to a distributive portion of all the personal estate, remaining after the payment of debts (without regard to legacies), as though the testator had died wholly intestate, or only to such portion thereof as may remain for distribntion, after satisfying the other requirements of the will, and as to which only he becomes intestate by the election of the widow.
First. Upon the first of these questions the court held that the rights of the parties were to be determined by the law in force when the testator died, which was the statute of wills passed in 1852, and not by the amendatory statute of 1846, which was in force when the will was made. In this, we think the decision of the court was right.
The will act of 1852 purports to be prospective in its operation. So far as the authority to make a will and the mode of its execution are concerned, its provisions are but re-enactments of the law of 1840. The first section in each act declares that any person of full age, etc., having an interest in lands, etc., or any goods, etc., or other property of any description, may give and devise the same to any person by last will and testament lawfully executed; subject nevertheless to the rights of creditors, and to the provisions of
I. By the law of 1840,it is enacted, (sec. 45,) that “if any provision be made for a widow in the will of her husband, she shall within six months after probate of the will make her election, whether she will take such provision, or be endowed of his lands. But she shall not be entitled to both, unless such appears plainly by the will to have been the intention of the testator.”
By the law of 1852, section 48, such election may be made at any time within one year from the probate of the will.
II. By the law of 1840, as amended in 1846, if the widow fail to make such election within the time limited, she shall retain her dower, and such share of the personal estate of her husband, as she would be entitled to by law in case her husband had died intestate, leaving children; i. e., one-half of the first $400, and one-third of the residue. -
By the law of 1852, the words, leaving children, are omitted,
The law of 1852 has, therefore, modified and restricted the power of the testator, attempted to be exercised by him under the law of 1840-46, so far as to give her twelve months instead of six, within which to make her election, between the provisions of the law and the provisions of the will, and so far also as very essentially to enlarge those provisions of law in case she elects to waive them. The effect of these changes may be, in a case like the present, and in many others likely to occur, to produce a result wholly unexpected to the testator, at the time of making his will, and, perhaps, wholly to thwart his real purposes. Yet should such be the case, it is to be presumed, that he has rather yielded to the change thus made, than persisted in his original design, else he would have made, by an alteration of his will, such changes as the law may have rendered necessary. Be this as it may, the rules of property are, at all times, subject to change, and the legislative authority to restrict the power of alienation by will, or to impose rules for distribution after the death of its owner, will not be questioned by any one. The only question we have to consider is, whether the authority has been exercised, in the passage of the law of 1852. "We have already seen that by this law, the act of 1840 and 1846, and the authority therein given, are absolutely repealed, and a consequent change in the rights of the parties under this will, unless the saving clause of the act of 1852 can be so applied, as to leave them wholly under the governance of the laws of 1840-46. The language of the saving clause isas follows: “Provided that all rights that have accrued under the provisions of said laws, shall not be affected by the repeal thereof.” The laws thus alluded to are not merely the wills acts of 1840 and 1846, but several amendatory acts, passed in 1848,1849 and 1851. The first of which provided for the establishing of spoliated wills (not before then provided for). The second for the protection of purchasers, under foreign wills, admitted to record in
II. The second and more difficult question to be disposed of, is, whether under the law of 1852, the widow of the testator ("Warren Hartshorne) is entitled to distribution of all his personal estate remaining after the payment of debts (without regard to legacies) as though he had died wholly intestate ; or whether she is entitled only to the remainder thereof after satisfying the other requirements of the will, and as to which only the testator has become intestate (or can be said to have died intestate) by reason of the widow refusing to receive the provision made for her by the will.
The language of the law is as follows: Sec. 43. “ If any provision be made for a widow in the will of her husband, she shall, within one year after probate of the will, make her election whether she will take such provision, or be endowed of his lands; but she shall not be entitled to both, unless it plainly appears by the will to have been the intention of the testator that she should have such provision in addition to her dower.”
Sec. 44. “ The election of the widow to take under the will, shall be made by her in person, in the probate court, etc., and it shall be the duty of the court to explain to her the provisions of the will, her rights under it, and by law, in the event of her refusal to take under the will,” etc. “If the widow shall fail to make such election, she shall retain her dower, and such share of the personal estate of her husband as she would be entitled to by law, in case her husband had died intestate,” etc.
Now it can not be denied that the literal construction of the 44th section is such, that the widow refusing to take under the will, is not only entitled to her dower, but to such share of the pei’sonal estate of her husband, as she would be entitled to by law if he had died intestate — not intestate as to part of his property, but wholly intestate. To determine what such share is, we must' refer to the 180th section of the law regulating the settlement of estates (Swan
The propriety of a literal construction of this section, seems to result from the duty which it imposes upon the probate courts of instructing the widow (when she comes to make her election) as to her rights under the law. If such courts might pass by the plain words of the law, and enter upon the field of construction, the rights of widows, instead of receiving protection from such instruction, would be constantly jeopardized.
But again: so far as regards the quantum of interest in her husband’s estate, which the widow becomes entitled to, on her refusal to take under the will, it is the same under the law of 1852 as under that of 1840, and should receive the same construction. Now, the law of 1840 is the first one which ever assumed (in terms) to give the widow (in case she refused to take under the will) anything in addition to dower. From the passage of the ordinance of 1787, through all the territorial and State legislation, down to 1840 (a period of 53 years) the laws on the subject of dower, distribution, and wills, were substantially the same. They all gave
The further history of legislation on the subject not only confirms this view of the legislative intent, but seems to furnish a legislative declaration of such intent.
In March, 1842, an act was passed reciting that “ whereas doubts have arisen under the act of 1840, etc., whether, when a widow fails to elect to take under a will in lieu of dower,, she shall be entitled to share in the personal estate to the exclusion of legatees, or only a share in such of the personal estate as remains unbequeathed, and whereas it is proper that such doubts be removed; therefore,
“Be it enacted, etc., That nothing in said section contained, shall be so construed, as to vest in the widow personal estate that is lawfully bequeathed by her husband to other persons; but in all cases in which the widow fails to make election to take under the will of her husband in lieu of dower, as is provided in said act and section, she shall retain her dower in his real estate, and her distributive share in the personal estate, not disposed of by the will.” Vol. 40, p. 55.
The terms of this act are explicit enough, and leave no doubt that at that time- (1842), the legislature did not intend that the widow’s election should in anywise interfere with her husband’s will, further than as regards her oion dower. But in the very next year, the legislature, not satisfied with the declaratory (or perhaps we should rather say amendatory) act of 1842, passed another act repealing the same, and declaring that said 46th section “be, and the same is hereby revived.” Vol. 41, p. 50. Now, what is this, but rejecting the construction, put upon the law of 1840 by the legislature in 1842, and returning to the frame of the law as it literally stood ? It surely can not be said that the declaratory act of 1842 was itself .a work of supererogation, if it properly construed the original act, and if it did not so properly construe it, its repeal was absolutely necessary.
But, as if to show still further its sense of the right of the widow, to resist the operation of the will in such cases, the
This again manifesting the legislative intention that the construction to be put upon the words “dying intestate,” should be dying without a will — or wholly intestate.
Next comes the law of 1852 (now in force), which is a revision of the act of 1840, with its amendments, and in the consideration of which, the construction which had been put upon this section of the law of 1840, by successive acts, must have been apparent to the legislature. If then, such construction had not been acquiesced in, it seems difficult to understand how the legislature could have re-enacted, in the very same terms (only with additional precautions to secure to the widow a' knowledge of its provisions, through the instruction of the probate court), the same provisions which had been made for her under the law of 1840.
~We do not desire, in this opinion, to stand upon the construction which may have been put upon laws of a similar
Neither do we wish to express any opinions as to whether under the present law a widow can make an election, to take against the will, and in a case like the present, where there are no children of the testator, defeat it wholly as to personalty, and take all at law, in a case where the husband makes no ' provision whatever, or a provision in addition to dower. ~We confine ourselves to the case as it stands, where provision has been made for a widow in lieu of dower, when an,election may he made by the widow, whether she will take such provision or not; and when, having refused to take such provision, the law declares she shall have such of the personalty as she would have taken had the husband died intestate.
"We are aware of the difficulties which beset us in giving a construction to the law,in accordance with its plain and literal terms; and a portion of the court, at least, have been sorely' pressed by the incongruities and inconsistencies in our legislation upon this subject. The first section of the wills act declares, that “ any person of full age, etc., having an interest in lands, goods, or any other property, may give and devise the same by last will and testament, subject to the rights of creditors, and to the provisions" of this act.” Mere is the gift of a general power to devise. The 43d section declares, that “ if any provision be made for a widow in the will of her husband, she shall make her election, whether she will take such provisions, or be endowed of his lands — but shall not be entitled to both, unless such appears plainly to have been the testator’s intent.” So far, it would seem, that the widow can not interfere with the power given to the husband to devise away all his property, saving
Again, take this very case: a husband has a large amount of real and personal estate, say valued at $40,000 each — he gives half of each whether for life or in fee, in lieu of dower, which is but a third of the land alone for life. If the personalty alone had been given in lieu of dower, the law says she shall not have both, yet' by making an election she not only takes both, but the residue of the personalty besides; whereas, had the husband given her one-half of the personalty in addition to dower only, it is all that she could have claimed.
But still further, had the testator in the present case left children, whether by this or another wife, dependent upon the care and bounty of his wife, for both of whom he had supposed the provision adequate, his widow electing to take under this will, would have received but the one-third
These are some of the difficulties and incongruities which the law seems to present in its literal construction — and they have so pressed upon us (a part of the court at least), as to induce us to deliberate anxiously before adopting such a construction. But it is not the business of the judges to reconcile inconsistencies or oppose a stumbling block in the way of the legislative intent; their duty is to ascertain what that intention may be, from the plain words of the law, and the construction which the legislature may have put upon them. And when that intent is ascertained, to give the law effect. If a remedy be proper the law making power alone could and must apply it.
Having thus decided that the will of Warren Hartshorne is to be governed by the law of 1852, and that by that law his widow was entitled to elect whether she would take under his will or retain her dower, and such share of his personal estate, as she would have taken, had he died wholly intestate, and having made her election to take under the lato, it remains only to add, that by the 180th section of the act for the settlement of intestate’s estates, the provisions of which have been already anticipated, the widow is entitled
Judgment affirmed.