Flora H. Blanchard v. John W. Blanchard's Estate, F. Chaffee's Sons, Creditor

• Decision Date: 03 May 1938
• Citation: 199 A. 233,109 Vt. 454
• Parties: FLORA H. BLANCHARD v. JOHN W. BLANCHARD'S ESTATE, F. CHAFFEE'S SONS, CREDITOR
• Court: Vermont Supreme Court

199 A. 233

109 Vt. 454

FLORA H. BLANCHARD v. JOHN W. BLANCHARD'S ESTATE, F. CHAFFEE'S SONS, CREDITOR

Supreme Court of Vermont

May 3, 1938

February Term, 1938.

Dower Preferred over Unsecured Creditors at Common Law---Argument Widow's Interests Not Entitled to Preference for Consideration of Legislature and Not of Courts---No Construction When Meaning of Statute Is Plain---No Statutory Provision to Bar Widow's Interest When Estate Insolvent---Effect of P. L. 2962, Providing for Agreement Between Widow and Creditors---P. L. 2917, Providing for Sale of Decedent's Real Estate to Pay Debts Construed---Executrix Held Entitled to Credit for One-Third Avails of Sale of Real Estate as Her Widow's Interest---Right of Widow under P. L. 2960 to Occupy Real Estate or Receive One-Third of Income Thereof Until Her Interest Is Set out---Claim to All Income from Real Estate Not Made in Probate Court---Rule as to Claim Not Made Below Applicable to Appeals Direct from Probate Court---Executrix Held Entitled to Credit for One-Third of Net Receipts from Real Estate Rented.

1. At common law, widow's dower was preferred over unsecured creditors of her husband's estate.

2. Argument that, because provisions made for widow from her husband's estate have been increased and because the legal rights of married women have been enlarged and their economic and social status improved, dower and its modern substitutes are no longer entitled to preference over unsecured creditors, is proper for consideration of Legislature but may not be considered by courts unless statutes governing this matter are ambiguous.

3. When meaning of statute is plain, it is duty of courts to enforce it according to its obvious terms, and there is no necessity for construction.

4. There is no statutory provision for barring widow's third interest in lieu of dower in her husband's real estate by reason of fact that his estate is insolvent or that it is necessary to use all or some portion of such dower interest to prevent insolvency.

5. P L. 2962, providing that when estate is insolvent, widow and creditors having two-thirds in amount of debts against deceased may agree upon portion of real estate to be assigned to her, etc., indicates that both widow and creditors have interests in decedent's real estate and are authorized to adjust their respective interests by agreement, subject to approval of probate court.

6. Provision of P. L. 2917, that in case personal estate is not sufficient, the whole of deceased's real estate or so much thereof as is necessary, "except the widow's statutory interests therein," may be sold to pay debts and expenses after obtaining license therefor, considered with provisions of P. L. 2951, 2952 and 2962, excludes the widow's interest in lieu of dower from real estate which may be sold for payment of decedent's debts, so that such interest is preferred over claims of unsecured creditors.

7. Decedent's widow, who had waived provisions made for her in her husband's will, was entitled in her account as executrix of her husband's estate to credit for one-third of avails of sale of real estate as her statutory interest therein, notwithstanding that estate was insolvent.

8. Decedent's widow, who had waived provisions made for her in her husband's will, was entitled under P. L. 2960 to occupy with children and family of decedent real estate of which her husband died seized or to receive one-third of rents, issues and profits of such estate, until her third in value had been set out to her, and she could occupy part of such estate and take one-third of rents, issues and profits accruing from such parts as produced a revenue.

9. Claim of widow that she was occupying all of real estate of which her husband died seized and was therefore entitled to all rents, issues and profits therefrom was not for consideration in Supreme Court where she did not make such claim in probate court but claimed only one-third of rents, issues and profits from portion which she rented.

10. Rule that Supreme Court will not consider claim not made below applies to cases appealed directly from probate court as well as to those coming from county court or court of chancery.

11. Under P. L. 2960 decedent's widow, who had waived provisions made for her in her husband's will, was entitled in her account as executrix of her husband's estate to credit for one-third of net receipts accruing prior to sale from portion of real estate rented, notwithstanding that estate was insolvent.

APPEAL directly to Supreme Court from the probate court for the district of Rutland. The appellant was executrix of the will of her deceased husband and had waived the provisions made for her therein. The appellee was the principal creditor of the estate. On the ground that the estate was insolvent, the decree disallowed two items in the appellant's final account as executrix by which she took credit as representing her widow's statutory interest for one-third of the avails from the sale of the real estate of which her husband died seized and for one-third of the income accruing prior to sale from a portion of the real estate. The opinion states the case.

Decree reversed. To be certified to the probate court.

Lindley S. Squires and Marion L. Ward for the appellant.

Jones & Jones and Philip B. Billings for the appellee.

Present POWERS, C. J., SLACK, MOULTON, SHERBURNE and BUTTLES, JJ.

OPINION

BUTTLES

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 unencumbered 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; Amer. Blower Co. v. MacKenzie, 197 N.C. 152, 147 S.E. 829, 64 A.L.R. 1047; Combs v. Young, 4 Yer. 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...