In re T. Francis O'rourke's Estate

• Decision Date: 02 October 1934
• Citation: 175 A. 24,106 Vt. 327
• Parties: IN RE T. FRANCIS O'ROURKE'S ESTATE
• Court: Vermont Supreme Court

175 A. 24

106 Vt. 327

IN RE T. FRANCIS O'ROURKE'S ESTATE

Supreme Court of Vermont

October 2, 1934

May Term, 1934.

Descent and Distribution---Status of Wife's Right to Part of Husband's Personal Property During His Lifetime and at His Decease---Analogy between Wife's Right to One-third of Deceased Husband's Personalty and Homestead and Dower Rights---G. L. 2823---Statutory Construction---Presumption as to Effect of Change Made by Revision of Statute---Wills---Impossibility of Taking both under and against Will---Inability of Husband To Will Away Wife's Share in His Personalty or Other Statutory Rights without Her Consent---Necessity of Carrying Out Intention of Testator Leaving Legacy to Wife in Addition to Her Statutory Rights---Widow Not Required To Elect between Benefits under Such Circumstances---Statutory Share of Wife in Deceased Husband's Personalty in Addition to Specific Legacy in Will.

1. Right of wife to any part of 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, but at his decease her inchoate right immediately becomes vested and complete.

2. Statutory right of widow to one-third of deceased husband's personalty is analogous to homestead and dower rights, is to safeguard interests of wife, predicated upon sound public policy, and is highly favored by law.

3. P. L. 2823, providing that widow of deceased person shall receive of his personal estate, "not lawfully disposed of by deceased's last will," all his wearing apparel and ornaments, and not less than a third of such "other part" of his personal estate after payment of his debts, funeral charges, and expenses of administration, must be construed as Court finds it, and quoted phrase must be given a meaning consistent with other cognate provisions.

4. Change in statute providing that widow shall receive at least onethird of her "intestate" husband's personal estate, in revision of statute, by substituting words "of the deceased" for word "intestate," will not be presumed to have been intended to work change in law.

5. One cannot take under will and against it, but if he accepts bequest he does so on condition of conforming to will.

6. Husband cannot will his personal property to some one other than wife without her consent either express or implied, in violation of her statutory rights, but she may cut herself off by disclaiming all benefit under will.

7. Statutory rights of widow are homestead, statutory dower, and at least one-third of deceased husband's personal property and none can lawfully or effectually be willed away from her without her assent.

8. Where testator left legacy to his widow to be in addition to her statutory rights, she does not take against will, but under it, and since testator intended that she take both, his intention is to be given effect, it not being contrary to law.

9. When testator intended that his widow should take both legacy and her statutory rights, she is not required to elect, since that would defeat testator's intention, because an election is choice between benefits in exercise of which she could have but one, whereas testator intended she should have both.

10. Under terms of will, testator's widow held entitled to at least one-third of personal property in estate after payment of debts, funeral charges, and expenses of administration, in addition to specific legacy under will.

APPEAL to Supreme Court from final decree of distribution of probate court for the District of Orleans, which failed to allow widow one-third of personal estate of deceased after payment of debts, funeral charges, and expenses of administration, in addition to a specific legacy to her in her deceased's husband's will. The widow appealed. It was appellee's contention that decree of the probate court as made was correct, because the widow would not be entitled to such one-third of the personal estate without first having waived the provisons of the will in her favor. The opinion states the case.

Decree reversed, and cause remanded to the probate court for a decree so corrected as to conform to the views herein expressed, to be so certified. Let the appellant recover costs in this Court and the court below.

J W. Redmond for the appellant.

Porter Witters & Longmoore for the appellee.

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

OPINION

POWERS

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, 469--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...