Moore v. Alden

• Decision Date: 14 March 1888
• Citation: 80 Me. 301,14 A. 199
• Parties: MOORE v. ALDEN et al.
• Court: Maine Supreme Court

14 A. 199

80 Me. 301

MOORE

v. ALDEN et al.¹

Supreme Judicial Court of Maine.

March 14, 1888.

On bill and answer from supreme judicial court, Knox county.

Bill in equity praying for the construction of a will. The opinion states the facts.

Joseph E. Moore, for plaintiff. A. P. Gould, for Georgia S. Alden. T. R. Simonton, for other defendants.

PETERS, C. J. Horatio E. Alden, whose will is presented to be construed by the court, after directing that certain necessary bills be paid, and giving his wife certain property outright, also gives to her an annuity of $1,000 for her life-time, the annuity to be paid from the earnings of his individual and partnership properties; and he declares that these gifts to his wife are to be in lieu of all allowances, dower, and distributive share to which she might be entitled out of his estate. He then grants other annuities, their payment made subject to a prior payment of his wife's annuity, and makes sundry bequests to take effect on the death of his wife. It appears that he died seized of dowable real estate; that no child was left by him; that the widow is now 39 years old; and that the entire estate reduced to money, now in the hands of the trustee, the administration accounts having been finally settled, amounts to $11,707.61. It is evident enough that the annuity to the widow, to say nothing of the other annuities, cannot be obtained from the income and earnings of the estate. And the question of the case is whether she is entitled to receive the amount each year, although it will be necessary to entrench upon the corpus of the estate to supply the deficiency. She correctly claims that the full annuity should be paid to her as long as the estate lasts, upon the rule, which appears to be well established in the law, that, where a testamentary gift is made by husband to wife, in satisfaction of her waiver of dower in his estate, the gift has a preference over all other unpreferred legacies, and for the reason that the estate receives a valuable consideration for such gift. The principle is based upon the idea of contract between husband and wife. He dictates the terms, and she accepts them. The estate gets her right of dower, and she receives the gift in the will in lieu of dower. This is an old doctrine, originating with Lord COWPER in Burridge v. Bradyl, 1 P. Wms. 127, adopted by Lord HARDWICKE in Blower v. Morret, 2 Ves. Sr. 422, which has so extensively prevailed as never to have been dissented from, that we discover, either in the English or American cases. Its application was resisted by counsel in an early case, (Davenhill v. Fletcher, Arab. 244,) where the gift to the wife greatly exceeded in amount the value of the dower, the argument being placed on the great inadequacy of consideration; but the point was overruled, the answer to it being that the testator is the only and best judge of the price at which he is desirous to become the purchaser of the wife's right. Rop. Leg. *432. The rule does not, however, apply, if the wife has no right of dower. Her right must be subsisting at the death of the testator. Otherwise she is not a purchaser. In such case she pays no consideration. Id. And the general rule does not prevail if the will clearly discloses that the testator intended that the gifts to his wife should not have a preference over other bequests. The burden will be on the executor to show, from the terms of the will, that a preference is forbidden. The presumption favors the widow's claim. The intention of the testator, as found in the will, is a part of the contract made with the widow, and, if she accepts the provisions of the will, she does so voluntarily, and abides the consequences. The internal evidence of...