Hardy v. Scales

• Decision Date: 01 January 1882
• Citation: 11 N.W. 590,54 Wis. 452
• Parties: HARDY AND OTHERS v. SCALES AND OTHERS, EX'RS, ETC.
• Court: Wisconsin Supreme Court

54 Wis. 452

11 N.W. 590

HARDY AND OTHERS

v.SCALES AND OTHERS, EX'RS, ETC.

Supreme Court of Wisconsin.

Filed March --, 1882.

Appeal from circuit court, Lafayette county.

Orton & Osborn, for respondents.

T. J. Law and W. E. Carter, for appellants.

COLE, C. J.

In this case the learned counsel did not disagree as to the rule of the common law which put the widow to an election between the provisions made for her by the will of her husband and her right of dower. They fully agree that dower was a legal right which was much favored by the courts, and that the presumption was that a provision for the widow in the will was a matter of bounty and was not intended to exclude dower unless it was so expressed in the will, or there was a clear implication to that effect. But it is conceded that this rule of the common law was long since changed by statute here, and the presumption reversed; and that since the adoption of the Revision of 1839, by the territorial legislature, a provision for the widow in the will carried with it the presumption that it was in lieu of dower, and that it had to appear plainly by the will itself that it was in addition to dower, in order that the widow might take both. See Ter. St. 1839, p. 184; section 18, c. 62, Rev. St. 1849; section 18, c. 89, Rev. St. 1858. By the last statute, when the widow was entitled to an election she was deemed to have elected to take under the will, unless, within one year after the death of her husband, she commenced proceedings for the assignment or recovery of her dower, or by some other unequivocal and notorious act waived the provision made for her. Zaegel v. Kuster, 51 Wis. 31; [S. C. 7 N. W. REP. 781;] Wilber v. Wilber, 52 Wis. 298; [S. C. 9 N. W. REP. 163.]

Where the widow made a valid election waiving the provisions of the will in her favor, or relinquishing any jointure or pecuniary provision made for her benefit, but without her assent, she was then entitled to be endowed of the lands of her husband in which her dower had not been barred. But whether it was necessary for her to renounce the provision made for her where the testator left real estate not disposed of by the will, in order to be endowed of such intestate real estate, is a question of some difficulty under the statute; but its solution is not essential to the disposition of this case. It is admitted that the law of 1858 and the prior statutes relate to real estate and to the claim of dower proper. These enactments had no application to personal property which was left undisposed of by the will. Therefore, unless the widow was excluded by the will itself from claiming a share in such personal estate, she took her portion under the statute of distributions, (Subdivision 6, § 1, c. 99, Rev. St. 1858,) without being compelled to make her election. Kempton Case, 23 Pick. 163. This was the state of the statutory law upon this subject when chapter 106, Laws 1877, was enacted. And the question in this case relates solely to the construction of that act. The first section of the act amends section 17, c. 89, Rev. St. 1858, and provides that the widow shall make her election whether she will take any jointure or pecuniary provision made for her without her assent, “or the share of his estate hereinafter provided.” The second section amends section 18 of the same chapter, and enacts that when any lands are devised to the wife, or other provision is made for her in the will of her husband, she shall make her election whether she will take the lands “so devised or the provision so made,” or “whether she will claim the share of his estate provided in the next section; but she shall not be entitled to both unless it plainly appears by the will to have been so intended by the testator.”

The third section amends section 19 so as to read as follows: “When a widow shall be entitled to an election under either of the last two preceding sections, she shall be deemed to have elected to take such jointure, devise, or other provision, unless within one year after the death of her husband she file in the court, having jurisdiction of...