In re O'Rourke's Estate
| Decision Date | 02 October 1934 |
| Citation | 175 A. 24 |
| Parties | In re O'ROURKE'S ESTATE. |
| Court | Vermont Supreme Court |
Appeal from Probate Court, Orleans County; E. J. Smith, Judge,
In the matter of the estate of Thomas F. O'Rourke, deceased. From a final decree of distribution, Maude Delaney O'Rourke, deceased's widow, appeals.
Reversed and remanded.
Argued before POWERS, C. J., and SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.
J. W. Redmond, of Newport, for appellant.
Porter, Witters & Longmoore, of St. Johnsbury, for appellee.
This is the third appearance of this estate in this court. In O'Rourke v. Cleary et al., 104 Vt. 312, 158 A. 673, the jurisdiction of the court of chancery to construe the will of Thomas F. O'Rourke was sustained. In the same case, 105 Vt. 85, 163 A. 583, it was decided that the $25,000 bequest to Maude Delaney O'Rourke, the widow of Thomas, contained in his will, was intended to be in addition to and not in lieu of her statutory rights as the widow of the testator. But we did not attempt to say what these statutory rights were, as it was considered that that question was for the probate court to pass upon in the first instance. This case is an appeal by the widow from the final decree of the probate court; and, as it is presented, involves only the question as to what statutory rights, if any, she has in the personal property of her deceased husband.
P. L. 2823, reads as follows:
"The surviving husband or widow of a deceased person shall receive out of the deceased's personal estate, not lawfully disposed of by the deceased's last will, all the articles of wearing apparel and ornament, the wearing apparel of the deceased, and such other part of the personal estate of the deceased as the probate court assigns to such husband or widow, according to his or her circumstances and the estate and degree of the deceased, which shall not be less than a third, after the payment of the debts, funeral charges and expenses of administration."
The rights of the parties here depend upon the force and effect of the words "not lawfully disposed of by the deceased's last will." The testator disposed of all his personal property by his will. Could he lawfully dispose of this and thus defeat the widow's participation therein? If he could, it seems plain that the decree below must be affirmed. The use of the expression "not lawfully" disposed of by will plainly implies that the Legislature understood that there is some part, at least, of such personal estate that cannot be lawfully disposed of by a husband's will, and has obvious reference to the one-third of such estate hereinafter considered. The only propriety of the use of the word "lawfully" is thus explained. Otherwise, the statute would have been made to read "not disposed" of by will.
In seeking out the true meaning and effect of this statute, it will be of advantage to keep in mind—as was suggested by Judge Steele in Estate of Johnson v. Estate of Johnson, 41 Vt. 467, 465)—what the law was prior to its enactment.
By the ancient common law, a dead man's personal estate was divided into three equal parts. Of these, one went to his heirs or lineal descendants; one went to his wife; and the third went according to his will. If he left no wife, two parts were at his disposal. If he left no children, the same result followed. If he left neither wife nor children, he could will the whole as he pleased. The shares that went to the wife and children were known to the law as their "reasonable parts," and her share became part and parcel of her "thirds." Such was the law of England for a great many years. But it was modified by statute and custom until it finally became the law, and this was long before we adopted the common law, that a man might dispose of all of his personal property by will. 2 Black. Com. 491 et seq. Our earliest statutes on the subject followed this modified common law, and limited the right of the widow to participate in the personal property of her deceased husband to such as was not bequeathed to others. St. 1788, p. 53; St. 1797, p. 224; St. 1808, p. 132. This continued to be the law of this jurisdiction until the passage of the Probate Act of 1821, section 70 (Laws 1924, p. 347) of which provided that the widow "of any deceased person" should have at least one-third of the personal estate. This, obviously, was a return to the ancient common law, for it applied to all estates, testate and intestate, and gave the widow an absolute right, will or no will.
Then, after nearly two decades, came the law as shown in R. S. c. 47, § 1, containing the phrase now being considered.
A consideration of the rights of the wife in the personal property left by her husband has been before this court in several cases. Thus, right away after the phrase in question was adopted, Thayer v. Thayer, 14 Vt 107, 120, 39 Am. Dec. 211, which involved the right of a widow to have set aside a conveyance of both real and personal property in fraud of her rights, came before this court, and it was therein stated that the statute gives the widow at least one-third of the personal estate "and this she cannot be deprived of by the will of her husband. * * * "
Again in Re Peck's Estate, 87 Vt. 194, 212, 88 A. 568, 576, this court gave attention to this subject, and said of an estate including both real and personal property:
The right of the wife to any part of the husband's personal property is inchoate as long as he lives, and may be defeated by him by sale or gift thereof made in good faith. Dunnett v. Shields, 97 Vt. 419, 428, 123 A. 626. But at his decease, her inchoate right immediately becomes vested and complete. Johnson's Estate v. Johnson's Estate, 41 Vt. 467, 469; Probate Court v. Winch, 57 Vt. 282, 285.
That any attempt by the husband to will away the homestead right must of necessity fail is not questioned. Meech v. Meech's Estate, 37 Vt. 414, 418; In re Hatch's Estate, 62 Vt. 300, 302, 18 A. 814, 22 Am. St. Rep. 109. There is a plain...
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