Hair v. Goldsmith
| Decision Date | 22 April 1885 |
| Citation | 22 S.C. 566 |
| Parties | HAIR v. GOLDSMITH. |
| Court | South Carolina Supreme Court |
1. The right of dower is by operation of law, and beyond the control of the husband; but he may give property to his wife by will upon condition that she surrender her claim of dower, in which case she is put to her election between the legacy or devise and the dower.
2. The right of dower is a legal right, and a devise to the widow cannot be held to be in lieu and bar of dower, unless so declared, or unless manifestly repugnant to a claim of dower.
3. A testator, seized and possessed of 361 acres of land bequeathed specifically some goods of little value, $500 in lieu of administrator's commissions, and to his grandchildren C., a note on their father, and devised four-tenths in value of his lands to his widow for life, with remainder to their daughter A., and to his grandchildren B and C. three-tenths each, and named persons to make such division of his lands. Held , that the provision for the widow was intended to be in lieu and bar of dower. MR JUSTICE MCIVER dissenting.
4. The widow having, under her hand and seal, elected to take the devise to her under this will, she cannot claim dower in the lands assigned to B. and C., notwithstanding she made such election very soon after her husband's death- there being no imposition, misrepresentation, nor persuasion practised upon her.
Before PRESSLEY, J., Newberry, November, 1884.
This was a petition by Rosannah C. Hair against Harriet S. Goldsmith and others. The opinion states the case.
Messrs. Jones & Jones , for petitioner.
Mr. Y. J. Pope , contra.
Peter Hair, late of Greenville County, died on September 26, 1882, leaving of force a last will and testament. At the time of his death he was seized and possessed of certain real estate situate in Newberry County. Of this real estate, he devised four-tenths to his wife, the plaintiff, for life, with remainder in fee to his daughter, Hattie S. Manly, three-tenths to the children of his son, John Hair, and three tenths to the children of his daughter, Mrs. Goldsmith. His son-in law, William Goldsmith, administered with the will annexed.
On October 26, 1882, just a month after the death of testator, the plaintiff executed a receipt, of which the following is a copy: On the same day, at the solicitation and request of her friend, A. J. Kilgore (who, it seems, told her that it would be carrying out his uncle's will), she signed a paper, of which the following is a copy, which was presented to her by the said Kilgore:
Some time the next year, i. e. , 1883 (the precise time is not stated in the " Case," nor are there any dates to the initiation papers), she filed a petition in the Court of Probate for Newberry County, demanding dower in the said real estate. The defendants, some of whom were minors, answered (the minors by guardian ad litem ), denying her right to dower both under the terms of the will and because of the receipts above mentioned which they set up in bar. The probate judge, after taking testimony and hearing argument, held that while the terms of the will did not exclude her from the claim of dower, yet having expressly accepted the devise thereunder in bar of dower in the lands devised to the other devisees, she was precluded from now claiming it. He therefore dismissed the petition, with costs and disbursements against the plaintiff.
From this decree of the probate judge an appeal was taken to the Court of Common Pleas, which came up before his honor, Judge Pressley, who, holding that the second instrument above was based upon a valuable consideration and in the nature of a family settlement, decided that the plea of mistake could not avail, and he adjudged that the appeal should be dismissed with costs to the defendants, with directions that his judgment be certified to the court below.
The case is now before us upon appeal by both plaintiff and defendants. The defendants contend that the judgment below may be sustained on the ground that the devise to the plaintiff in the will was intended to be in lieu and bar of dower; and that the plaintiff having elected to take the devise, and having received it, she was now barred, and that the Circuit judge should have so held. The plaintiff, contesting this proposition of the defendants, has excepted to the ruling of his honor, Judge Pressley, in that he erred in holding that the second receipt above was a bar to the claim of dower-the plaintiff alleging that said receipt was without consideration; that the release therein was to no one; that it was executed before the dower had been laid off; that the plaintiff did not understand her rights at the time, but one month having elapsed since the death of her husband and before she had an opportunity to consult her attorneys, and because her friend, A. J. Kilgore, had advised that she could not claim the devise and the dower both.
It has been often said that the right to dower is a highly favored claim, and under the influence of this principle the courts have been slow to defeat such a claim. It is not meant, however, by this that the allowance of dower is dependent upon the favor or kind disposition of the courts merely. On the contrary, this right is as much governed by established rules and principles as any other. The difficulty arises when these rules and principles come to be practically applied to the facts of a special case. For instance, it has been well established that when a widow of a deceased testator has been bequeathed or devised a legacy or devise in the will, this does not affect her right to dower in the lands of her deceased husband unless such claim is in opposition to the declared intentions of the testator, or is in such manifest repugnancy to the will that the two cannot stand together.
These are plain enough as general rules, but when the question is presented whether the provisions of a certain will are manifestly repugnant to the claim of dower, neither the text-books nor the decided cases afford any positive and definite test. And after full examination of these authorities, it will be seen that the question at last must depend upon the intention of the testator, to be ascertained by the ordinary rules of construction and interpretation, and especially whether the devise and dower are repugnant, each case turning upon its own facts and circumstances.
Now, what is precisely the character of the case at bar? The testator died seized and possessed of considerable real estate. He left surviving him his widow, two children, and several grandchildren, the children of a deceased daughter. In his will he devised four-tenths of this real estate to his widow for life, with remainder to his and her daughter, H. S. Manly, in fee, three-tenths to the children of his son, John Hair, and the remaining three-tenths to his grandchildren, the children of Mrs. Goldsmith, deceased. There is no express declaration in the will that the devise to his wife was in lieu and bar of dower; the question then is presented, did the testator intend this devise as such bar? This must be determined by the fact whether the two are so manifestly repugnant that they cannot stand together. This being determined, the intention of the testator is reached and must govern.
It must be remembered in considering this question, first, that dower is a right to which a widow becomes entitled on the death of her husband, not by any gift, contract, or indulgence of her husband, but by operation of law, which is fixed at his death, and over which he has no control, and cannot defeat. Second. That while this is true, yet the husband may bequeath and devise his entire estate to whomsoever he pleases, and upon such conditions as he may choose. There is nothing, therefore, illegal in his annexing, either expressly or by implication, a condition to a bequest or devise to his widow, that she shall surrender her claim to dower. In such case the widow is put to her election, and if she accepts the devise or bequest, she loses her dower, not by the act of her husband, but by her own voluntary choice and surrender. So that although the right to dower is favored by all the courts, yet it is no violation of this principle to hold that she cannot claim it, and also another right which was given her on the condition that she should surrender her dower.
Now is the devise to the plaintiff in the will in question so manifestly repugnant to her claim of dower as to show that it could not have been the intention of the testator that the two should stand together? At the death of the testator he was seized in fee of the real estate mentioned, subject to a life estate of his widow in one-third thereof as her dower, which inchoate before his death became consummated and vested by his death. The will...
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