Mcdonald v. Mcdonald

• Decision Date: 13 January 1938
• Citation: 169 Va. 752
• Court: Virginia Supreme Court
• Parties: J. S. MCDONALD, ET AL. v. BERTIE MCDONALD.

Page 752

169 Va. 752

J. S. MCDONALD, ET AL. v. BERTIE MCDONALD.

Supreme Court of Virginia, Richmond.

January 13, 1938.

Present, All the Justices.

1. DOWER — Bar by Jointure — Requirements of Jointure at Common Law. — At common law there were five requisites of jointure: (1) It must commence immediately on the death of the husband; (2) it must be an estate for the wife's life, at least, and not a smaller estate; (3) it must be made to herself, and not in trust for her; (4) it must be made, and expressed to be, in satisfaction of her whole dower, and not of a part; (5) it must be made before marriage.

2. DOWER — Bar by Jointure — Election by Widow — Time of Making. — In Virginia there is no statutory requirement that jointure must take effect immediately upon the husband's death. However, if an election may be made, it should not be made before that time, because the husband might thereafter acquire property which would make an earlier settlement grossly inequitable.

3. DOWER — Bar by Jointure — Benefits of Jointure Not Postponed until Dower Can Be Claimed. — A man may settle funds upon his intended wife or convey to her a portion of his lands, and a provision so made goes into immediate effect. The mere fact that jointure is in lieu of dower does not postpone its benefits until dower can be claimed.

4. DOWER — Bar by Jointure — Presumption that Provision Is Intended to Be in Lieu of Dower — Statutory Provision to Be Reasonably Construed. — The provision of section 5120 of the Code of 1936 that a conveyance or devise for the jointure of the wife shall be taken to be in lieu of dower must be reasonably construed, and the estate given must bear some fair relation in value to that of the estate released.

5. DOWER — Bar by Jointure — Acceptance after Husband's Death of Unspent or Unwasted Provision. — If, after the husband's death, his widow accepts the provisions made by him for her in his lifetime and has neither spent nor wasted it, she bars herself of dower.

6. DOWER — Bar by Jointure — Jointure Provided During Coverture — Election Necessary Where Property Was Not Spent or Wasted. — When jointure is provided for during coverture, the touchstone is whether the widow, at her husband's death, still held property which she had accepted in lieu of dower. Plainly no election could be made had she spent or wasted it, but if she still held it, the necessity for election then arose.

7. DOWER — Bar by Jointure — Election by Widow — Life Estate Conveyed to Wife During Coverture and Not Spent or Wasted at Husband's Death — Case at Bar. — In the instant case, a suit to have dower assigned, defendants contended that complainant had no right to claim dower for the reason that her husband had, after marriage, bought and paid for a certain tract of land, which was by his direction conveyed to complainant for life, with remainder to himself in fee. This, defendants contended, was in lieu of dower.

Held: That since complainant had neither spent nor wasted her life interest in the land she was put to her election, and having elected to retain the tract conveyed to her, must abide by her election.

8. DOWER — Bar by Jointure — Election by Widow — Property Conveyed to Wife at Husband's Direction and Still Owned by Her at His Death. — Where, at the direction of the husband and for a consideration furnished by him, property is conveyed to the wife during the life of the husband for her immediate possession and enjoyment, and is still owned by her at the time of the husband's death, then, under section 5120 of the Code of 1936, such conveyance is presumed to be in lieu of dower of the wife in all of the husband's real property, and she must, under section 5121 of the Code of 1936, elect either to retain said property so conveyed to her or to demand her dower.

Appeal from a decree of the Circuit Court of Giles county. Hon. A. C. Buchanan, judge presiding. Decree for complainant. Defendants appeal.

The opinion states the case.

Cocke, Hazlegrove & Shackelford, for the appellants.

M. P. Farrier, for the appellee.

HOLT, J., delivered the opinion of the court.

We are to determine the effect on dower rights of a deed from a husband to his wife made in circumstances to be noted.

In September, 1935, Bertie McDonald, widow of A. B. McDonald, filed her bill in this cause. To it J. S. McDonald Mary McDonald, Wm. L. McDonald and Geo. B. McDonald were made parties defendant. They are the children of A. B. McDonald by a former marriage. He died intestate in October, 1934, and was at that time the owner in fee of a tract of about 200 acres of land in Giles county. The purpose and prayer of this bill is to have dower assigned in the land decedent owned at the time of his death. These defendants in their answer and cross bill contend that this widow has no right to claim dower and for these reasons: They say that after marriage, A. B. McDonald bought and paid for, out of his down funds, a tract of 77 3/4 acres of land, the purchase price being $4,500, and that by his direction conveyance was made to his wife for her life, with remainder to himself in fee. A copy of that deed is exhibited with the cross bill. This they contend was in lieu of dower.

A replication to the cross bill was filed, admitting in substance the facts there stated, but denying their legal effect. No testimony was taken, but the cause was heard upon the issues thus made.

The chancellor, upon consideration, was "of opinion that complainant is entitled to all the relief prayed for in her bill" and so decreed.

There was a petition to rehear. Upon its consideration, he adhered to his conclusions first reached, and so decreed. Hence this appeal.

What is jointure, and how did it come about?

"Soon after the first introduction of uses into England (in the latter part of the reign of Edward III, about A.D. 1370), and while they were as yet only equitable estate, they became so prevalent by reason of the escape they afforded from many of the feudal burdens attaching to the legal title held by feudal tenure, * * *." Minor on Real Property, section 320.

The wife was not dowable of uses, for they were equitable estates.

This situation brought about the statute of Uses of 27 Hen. VIII, c. 10:

"But when the statute of Uses (27 Hen. VIII, c. 10) was enacted, its chief object was to convert uses into legal estate, in which in the main it succeeded. In consequence of this enactment the husband at once became legally seised of the lands he had held before only by way of use, and all the then wives in England, who had such marriage settlements as above described, would themselves have had a joint estate at law such as they would before have in equity. Furthermore, the equitable estate of inheritance belonging to the husband having been thus converted by the statute into a legal estate of inheritance, the then wives would become dowable in those lands, as well as entitled to the jointure created by the marriage settlement, and would thus have received a double provision, had not the statute of Uses itself, in anticipation of this difficulty, declared that a jointure, provided it had certain attributes, should constitute an absolute bar to the widow's dower. * * *" Id.

Blackstone thus defines jointure, Book II, section 184:

"A jointure, which, strictly speaking, signifies a joint estate, limited to both husband and wife, but in common acceptance extends also to a sole estate, limited to the wife only, is thus defined by Sir Edward Coke; `a competent livelihood of freehold for the wife, of lands and tenements; to take effect, in profit or possession, presently after the death of the husband; for the life of the wife at least.' This description is framed from the purview of the statute 27 Hen. VIII, c. 10 (1535), before mentioned; commonly called the statute of uses, of which we shall speak fully hereafter."

Its requisites were:

"But then these four requisites must be punctually observed: 1. The jointure must take effect immediately on the death of the husband. 2. It must be for her own life at least, and not pur autre vie (for the life of another), or for any term of years, or other smaller estate. 3. It must be made to herself, and no other in trust for her. 4. It must be made, and so in the deed particularly expressed to be, in satisfaction of her whole dower, and not of any particular part of it. If the jointure be made to her after marriage she has her election after her husband's death, as in dower ad ostium ecclesiae, and may either accept it, or refuse it and betake herself to her dower at common law; * * *." Id. section 185.

In Tiffany on Real Property (2d Ed.), section 226, the requirements are thus stated:

"* * * (1) It must commence immediately on the death of the husband; (2) it must be an estate for the wife's life, at least, and not a smaller estate; (3) it must be made to herself, and not in trust for her; (4) it must be made, and expressed to be, in satisfaction of her whole dower, and not of a part; (5) it must be made before marriage. * * *"

To the same effect see Minor on Real Property, section 321.

These American authorities hold that it must be made before marriage. Blackstone indicates that it might be made after marriage, but if made after marriage, she is put to her election. She might hold to what she had taken or she might take what the law gave her by way of dower. Since she was put to her election, she could not enjoy both estates.

The statutory requirements for jointure in Virginia differ materially from those of the English statute of Uses. Code 1936, section 5120, reads:

"Jointure in bar of dower; effect of conveyance or devise. — If any estate, real or personal, intended to be in lieu of dower, shall be conveyed or devised for the jointure of the wife, such conveyance or devise shall bar her dower of the real estate, or the residue thereof, and every such provision, by deed or will, shall be taken to be intended in lieu of dower,...