Blanchard v. Blanchard's Estate

• Decision Date: 03 May 1938
• Docket Number: No. 1027.,1027.
• Citation: 199 A. 233
• Parties: BLANCHARD v. BLANCHARD'S ESTATE et al.
• Court: Vermont Supreme Court

199 A. 233

BLANCHARD

v. BLANCHARD'S ESTATE et al.

No. 1027.

Supreme Court of Vermont. Rutland.

May 3, 1938.

Appeal from Probate Court, Rutland County; L. J. Egelston, Judge.

Proceeding in the matter of the estate of John W. Blanchard, deceased, wherein Flora H. Blanchard, as widow, waived provisions made for her in the will and filed petition in probate court asking that her homestead and one-third in value of the real estate be set out to her. Flora H. Blanchard, as executrix, filed her final account, which was objected to by F. Chaffee's Sons, a creditor. A decree was entered in favor of the creditor, and the executrix appeals.

Decree reversed, and the case certified to the probate court.

Argued before POWERS, C. J., and SLACK, MOULTON, SHERBURNE, and BUTTLES, JJ.

Lindley S. Squires and Marion L. Ward, both of Rutland, for appellant executrix. Jones & Jones and Philip B. Billings, all of Rutland for appellee creditor.

BUTTLES, Justice.

This is an appeal coming directly from the probate court for the district of Rutland. John W. Blanchard died testate on October 9, 1930, leaving a widow, the appellant herein, who was the executrix of his will, and five adult children. The deceased died seized of unincumbered real property in the city of Rutland consisting of about one and one-half acres of land on North Main street on which stood the dwelling house which had been occupied by the Blanchard family as a homestead for many years, a garage and a building which had been altered by the deceased from a barn into a public garage with a small tenement above; also a building lot on Lincoln avenue. The deceased also held an equity of redemption in seven houses on School street, which were mortgaged to F. Chaffee's Sons. This mortgage was subsequently foreclosed and an unsecured deficiency judgment for about $40,000 is now outstanding against the estate.

On March 10, 1934, the appellant, as widow, waived the provisions made for her in the will, and on July 3, 1936, she filed her petition in probate court asking that her homestead and one-third in value of the real estate be set out to her. The probate judge notified her on August 14, 1936, that it would be necessary for her to file an account before her petition could be granted. Such an account was presented by the executrix on January 20, 1937, after which three commissioners were appointed, their report to the effect that one-third of the real estate could not be set out to the widow without injury to the estate was duly filed, and on February 19, 1937, the court ordered the sale of the property. Such sale was duly had, and about June 22, 1937, the appellant executrix presented her final account. F. Chaffee's Sons, the principal creditor and appellee herein, objected to the allowance of two credit items contained in that account; viz., one-third of the net income of the real estate, and the sum of $2,495.44, being one-third of the net avails resulting from the sale of the property. Hearing was held, and both of these items were disallowed by the court on the ground of the insolvency of the estate. Decree was entered July 28, 1937. The executrix saved her exceptions to the two questions indicated, and under the statute brings her appeal directly to this court.

The fundamental question in considering both of these exceptions is whether the provision for the widow now made by statute in Vermont in lieu of dower has preference over the unsecured creditors of the husband's estate. At common law dower was preferred over such creditors. Share v. Trickle, 183 Wis. 1, 197 N.W. 329, 34 A.L.R. 1016; American Blower Co. v. MacKenzie, 197 N.C. 152, 147 S.E. 829, 64 A.L.R. 1047; Combs v. Young's Heirs, 4 Yerg., Tenn., 218, 26 Am.Dec. 225. See, also, "Husband and Wife as Statutory Heirs," 42 Harv.L.Rev. 330, at page 331. The appellee makes no claim that this was not so.

In Thayer v. Thayer et al., 14 Vt. 107, 39 Am.Dec. 211, it is said by way of dictum: "Her claims to dower are paramount to those of creditors, and it has long since become a legal maxim 'that dower is a favorite of the law.'" As we shall see, the provisions made by the statute for the widow in lieu of dower have been enlarged quite materially since the Thayer Case was decided in 1842.

Early in the history of this state, statutory provision was made for the widow which differed somewhat from dower at common law. In 1797 it was enacted: "That the widow of any intestate, shall, in all cases, be entitled to dower, or the use of one third of the real estate of which such intestate died seized and possessed, in his own right, provided she has not otherwise been endowed, by way of jointure, before marriage, for and during the term of her natural life; and may recover the seizin of the same, as the law directs. But the widow who shall be thus endowed, by way of jointure, may waive her jointure and demand her dower." St. 1808, Ch. VIII, sec. 32, p. 132.

Section 88 of the same compilation provides: "That if there be any widow to an insolvent estate, her dower in the houses, and lands, shall be set off according to law: unless the said widow, and the creditors representing two thirds, in value, of the debts, shall mutually agree upon a portion of the real estate to be assigned to her," etc.

By section 70, chapter 3, of the Acts of 1821, the provision for dower rights was made to apply to the "widow of any deceased person," which was changed in the revision of 1840, c. 51, § 1, to read "every deceased person," instead of the "widow of any intestate." Except for this no change material to our inquiry here was made in such provision until the enactment of No. 44 of the Acts of 1896. That act gave the widow one-third in value of the real estate of which her husband died seized in his own right, instead of the life estate in such one-third which she had previously received. By the passage of No. 46 of the Acts of 1929, the widow became entitled to receive both dower and homestead rights, instead of receiving only whichever was the larger of the two as theretofore.

The appellee argues at considerable length that because the law has increased from time to time the provision made for a widow from the husband's estate, and because the legal rights of married women have been enlarged and their economic and social status improved, therefore dower and statutory provisions in lieu thereof should no longer be treated as "favorites of the law" to the same extent as formerly, and dower and its modern substitutes are no longer entitled to the preference which they formerly had. This argument is proper for consideration of the legislative department of government, but may not be considered by the courts, unless the statutes now in force governing this matter are ambiguous. "Where the meaning of a statute is plain, it is the duty of the courts to enforce it according to its obvious...