Cheney v. Cheney

• Decision Date: 20 December 1912
• Citation: 110 Me. 61,85 A. 387
• Parties: CHENEY v. CHENEY et al.
• Court: Maine Supreme Court

85 A. 387

110 Me. 61

CHENEY

v. CHENEY et al.

Supreme Judicial Court of Maine.

Dec. 20, 1912.

Report from Supreme Judicial Court, Oxford County, at Law.

Partition by Emma J. Cheney against George F. Cheney and others. On report. Judgment for plaintiff.

Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, CORNISH, KING, and HALEY, JJ.

Newell & Skelton, of Lewiston, for petitioner.

John P. Swasey, of Canton, Aretas E. Stearns, of Rumford Falls, and H. H. Hastings, of Bethel, for respondents.

SPEAR, J. This is a petition for partition, brought by Emma J. Cheney of Rumford, in Oxford county, under the provisions of chapter 90 of the Revised Statutes of Maine, to have set off to her in severalty her alleged share of certain real estate situated in said Rumford, and in which the said petitioner claims that she is the owner in fee of one-half interest, held in common, undivided, and in tenancy in common with the respondents named in said petition. The basis of the petitioner's claim is that she is the widow of Charles J. Cheney, late of said Rumford.

The question presented by this petition is solely that of the rights of Emma J. Cheney in the real estate of her deceased husband, Charles J. Cheney, who died testate, and in whose will no provision was made for his widow.

The matter under consideration is an enactment of the Legislature obviously intended to abrogate the old rule of dower regarding the interest of the widow in her late husband's lands, and to confer upon her an estate of inheritance, instead of an estate for life.

The solution of this problem involves a construction of R. S. c. 77, § 13, in which is found a consolidation of the previous statutes relating to this subject. It is now an established rule of construction that the intent of the Legislature is the law, when such intent can be declared without doing violence to the clear and unambiguous language of the statute. With this end in view, it becomes necessary to interpret section 13 with an effort to discover (1) the intent of the Legislature in changing the law, and (2) if that intent is consistent with the language of the enactments calculated to accomplish the desired result.

The title of the act which initiated this legislation is found in the Public Laws of 1895, c. 157, and reads as follows: "An act to amend section 1 of chapter 75 of the Revised Statutes (1883), relating to title by descent, and to establish the rights of widows and widowers in the real estate of deceased husbands and wives." It may here be said that only those sections of the chapter which relate to the right of widows and widowers are involved in this case, and consequently relate solely to lands or real estate. It was, then, evidently the primary intention of the Legislature, in enacting this chapter, to change the quality of the estate to which a widow was entitled under the law of dower from a life estate to an estate in fee, and in other respects neither to increase nor diminish the attributes of the estate. Whether the phraseology of the statute does more than this is the question.

R. S. 1883, c. 103, provided for dower at common law. This was a right of which the widow could not be deprived by the husband by will or otherwise, except as hereinafter noted. If he made no will, she received her interest as a matter of course, upon petition. If he made a will and devised to her less than her dower interest, she could waive the devise and obtain her dower. R. S. 1883, c. 65, § 5; chapter 103, § 10. If he made a will without provision, her right was preserved. Chapter 103, § 1. Dower, then, was an absolute right, unless barred or released. It was, however, but a life interest.

In 1895 the Legislature proceeded to the enactment of a statute the sole purpose of which seems to have been to change dower from a life interest to an estate in fee. It did not pretend to affect the quantity of the estate, nor the nature of the right. Its absolute character for the protection of the widow was not intended to be disturbed, as will appear from the following analysis. Section 1, par. 1, Public Laws of 1895, reads as follows: "If he leaves a widow and issue, one-third to the widow. If no issue, one-half to the widow. And if no kindred, the whole to the widow. And to the widower shall descend the same shares in his wife's real estate. There shall likewise descend to the widow or widower the same share in all such real estate of which the deceased was seized during coverture, and which had not been barred or released as herein provided." The latter part of this paragraph is a substitute for the old provision for dower. It vests in the widow an absolute estate, if not barred or released, as hereinafter provided. In other words, the substitute clothes the new estate with all the attributes of dower, except the quality of the estate.

It will now be noted that the provisions for bar or release (sections 3, 4, and 5) have adopted, in a little different phraseology, the rules of defeasance that are found in the Revised Statutes relating to dower. Section 3 provides precisely as in case of dower: "But shall not be deprived of such right and interest by levy or sale of the real estate on execution." This would seem to prove that this new estate was to vest in the widow, precisely as dower did, as a right of which she could not be deprived, except in one of the ways mentioned as a bar or release. Section 4 provides for the waiver of a specific provision of a will, which is also identical with the right under the rule of dower. The other provisions for bar and release are immaterial to the issue here. It therefore appears from an analysis of the statutes of descent touching a widow's rights that the properties and characteristics of the new estate are practically the same as those of the dower estate. All the bars and releases are identical in meaning, although changed in phraseology in condensing. This leaves the positive rights in the new estate equivalent to the positive rights in the old. Our court, in Golder v. Golder, 95 Me. 259, 49 Atl. 1050, has so construed the statute, in which it is held: "The statute does not change the status of the widow with reference to her deceased husband's estate. It enlarges her interest by giving her an estate in fee instead of an estate for life. She still takes not as heir, but as widow." At this juncture the status of the widow in relation to her inheritance in her husband's estate is precisely as it was with reference to dower. Up to this point her rights in the personal estate of her husband are not affected, or even referred to.

It would appear, then, that when the statute of 1895 became a law the only change the Legislature intended to make, or, in the use of the language employed, did make, was to enlarge the interest of the widow by giving her an estate in fee instead of an estate for life. In all other respects, whether there was a will or no will, or a will with no provision for her, her interest in the lands of her husband was not affected; nor were her rights in the personal estate of her husband altered in the least, or even referred to...