Hamilton v. O'Neil

• Citation: 9 Mo. 11
• Parties: ALEXANDER HAMILTON, ADM'R OF HUGH O'NEIL, v. MARY O'NEIL.
• Decision Date: 31 January 1845
• Court: United States State Supreme Court of Missouri

9 Mo. 11

ALEXANDER HAMILTON, ADM'R OF HUGH O'NEIL,

v.MARY O'NEIL.

Supreme Court of Missouri.

January Term, 1845.

ERROR TO ST. LOUIS CIRCUIT COURT.

ALEXANDER HAMILTON, in person. 1. The widow in this case takes, in the first instance, under the 3rd section of the act concerning Dower, Rev. Laws, 228, subject to the payment of debts. The 12th section of article 6th of the Administration Law, Rev. Laws, p. 61, under which this motion was made, provides that “until the widow's dower be assigned, the court shall order such sums to be paid her, out of the hire of slaves, and the rent of real estate, as shall be in proportion to her interest in slaves and real estate.” This section does not define this interest; but in effect it comports with what, under our legislation upon the subject, is the true and only meaning of “dower,” which at least signifies nothing more nor less than that portion of the husband's estate to which, by law, the widow is entitled; whether it be given under that, or another, and different name. There being, then, in this instance, no devise of real estate to the widow, we refer at once to the statute of Descents and Distributions, Rev. Laws, 222, the 1st section of which enacts that when any person, having title to real estate, of inheritance, or personal estate undisposed of, shall die intestate as to such estate, it shall descend, and be distributed among his kindred, as is therein provided, subject to the payment of his debts and his widow's dower. As this statute is otherwise silent upon the subject, recourse must ultimately be had to the act concerning Dower, for the purpose of fixing and ascertaining what is “that portion of the husband's estate to which, by law, the widow is entitled.” We find in the first place, that under this statute, this is a case of election, which, however, not having been made, the simple question recurs: what portion of the estate left by the husband, is assigned to the widow independently of that which might otherwise, by election, have been acquired?

It is obvious from the slightest examination of the law, that the Legislature has enumerated two classes of widows, for each of whom distinct specific provision is made, assigning to each, in the first instance, rights differing essentially in value and extent. The first comprehends widows upon whom, by the circumstance of the death of the husband, have been thrown the burden and responsibility of maintaining and educating the children of the deceased. The second embraces those cases in which no such charge and duty exists, there being no children. The discrimination thus made, on examination, will be found to be based upon highly moral and equitable considerations. To the first is given one-third, and for life only, but free of debts, thus recognizing and providing, as well for the rights of the children, as for the probable necessities of the widow, in supporting and educating them; reserving to the children their right of inheritance, yet preferring the widow to the claims of creditors. To the second is allotted all the real and personal estate belonging to the husband in right of the marriage, remaining undisposed of, absolutely, and one-half of the real and personal estate belonging to the husband at the time of his death, also to be enjoyed absolutely, thus presenting a like two-fold consideration, that as there are no children to be affected by such a division, the widow's share should be larger, that it shall be held absolutely, yet for the same reason, there being no children to provide for, she should take subject to the creditors of her husband. It therefore requires in such a case as this, an election by the widow within the time, and in the manner prescribed by the 6th section of the act, to enable her to change this specified provision into a share of one-third, under the first section.

Our past legislation upon this subject will furnish some aid in the interpretation of this statute. Heretofore and until the act of 1825, this matter was found under the more appropriate heading of Wills, Descents and Distributions. Regardless of names under statutes of this general character, the Legislature proceeded directly to a division of the intestate's estate, first specifying the shares of widows, instead of leaving that subject to be disposed of by a separate and distinct enactment, under the name of “Dower.” The primary division of a third, and a half, as dependent upon the circumstance of there being or not being children, is preserved throughout. It was not until the act of 1825, that an attempt was made to separate the law of Dower from that of Descents and Distributions. But although they exist by different titles, yet the two subjects are so intimately blended, that a reference from the one statute to the other, becomes necessary, and they virtually stand as of old, as if they were both embraced under the provisions of one general law of Wills, Descents and Distributions. If then these statutes, now apparently distinct, were consolidated into one general law, it is believed there could be but little pretense of question as to what share was allotted to the petitioner. It will be perceived, that precisely the same provision was made for the widow, without children, under the act of 1825, as is given under the act of 1835. But by the former statute, both interests were made subject to the payments of the husband's debts; the Legislature uniformly holding to their favorite policy of making everything subject to the payment of debts. This policy was so far released by the act of 1835, as to release from debts the interest of the widow, where there are children, but only in that instance, and for the obvious reasons already mentioned. If this question arise under the act of 1825, there could be no doubt, and yet as has been shown, it is the same law, with regard to the widow without children, as now exists, excepting only that under the former law, there was no obligation to elect. Insert that clause in the act of 1825, and would it alter the case, as to what specific proportion was given in the first instance? And but for the existence of that clause in the act of 1835, it might well be contended that the widow would take, not only under the 3rd section, of the estate which was left, but also her dower under the 1st section, in all lands of which the husband was seized, and which he had conveyed during coverture, to which she had not relinquished her dower, whatever might be the condition of the estate, whether solvent or insolvent, and that this clause, was intended to prevent her so doing.

It is from the use of the word “dower” in our legislation, that much of the confusion and uncertainty connected with this question arises. We retain the name, and are apt to draw indistinct analogies from the principles of the common law, upon the subject of dower, long after the system itself has ceased to exist among us. Our law bears but a slight resemblance to the common law dower. It is so modified and enlarged as to embrace not only trust estates, and lease-hold property of certain descriptions, but a portion of the personalty, and differs also in other essentials.

The literal construction given to the words of the first section, “every widow shall be endowed of the third part,” proves too much. It conflicts with the provisions of the 9th and 10th sections, which provides for an election by the widow, between the bounty of her husband, and what the law has given to her. And according to that interpretation it would be impossible to endow a widow, under the 3rd section. Again, in the event of an election to take under the 3rd section, and the ultimate insolvency of the estate, clearly she would be entitled to nothing, unless indeed it should be held that an election under such circumstances, would not be operative. Again, this expression may be regarded as a legislative declaration, that every widow whether alien or not, and every such person, for whom no testamentary provision may have been made, where a will exists (treating this latter instance in connection with the estate of wills, as one of intestacy) shall be endowed. These and other considerations which suggest themselves, supply full efficacy and meaning to this peculiar phraseology, and no doubt led to its adoption. The petitioner's claim, therefore, derives no...