Tracy v. Murry
| Decision Date | 23 June 1880 |
| Citation | 6 N.W. 224,44 Mich. 109 |
| Court | Michigan Supreme Court |
| Parties | TRACY v. MURRY and others. |
Where a specific request was made to the wife of testate, to be in lieu of dower, and she accepted the same, held, that she was not, by reason of its being in lieu of dower, entitled to a priority over debts or other legacies, but that it was in the nature of a debt due from the estate, and if the assets were insufficient to pay all claims the widow would receive a pro rata share with other creditors.
Appeal from St. Joseph, in chancery.
H.H Riley and D.C. Page, for defendants.
Eleazer Tracy died in May, 1877, leaving a will, in which he had made certain bequests, the first being to his widow, the complainant, $4,400, and to the others $2,000. The will was duly probated and letters issued to defendants. The complainant renounced her dower in his estate, accepting the legacy in lieu thereof, under the statute. Claims have been proved against his estate to upwards of $5,000. The real and personal estate of the deceased is insufficient to pay the debts and legacies. The executors are about to sell the lands of deceased, and complainant claims that because she accepted her legacy in lieu of dower in the lands of her husband she is in the position of a purchaser for a valuable consideration, and that she is, therefore, entitled to priority over the other legatees and creditors, and that her legacy is a permanent lien upon the lands of which her husband died seized, and that she is entitled to have the same satisfied out of the proceeds of such sale before any of the other legacies or claims against the estate are paid.
There is a conflict in the authorities as to the rights of the widow under the facts stated. In Burridge v. Bradyl, 1 P.Wms. 127, where pounds sterling 3, 400 was devised for the purchase of annuities, to be enjoyed by the wife of the deceased, she releasing her dower, it was held she was entitled to preference over the pecuniary legacies. This was put upon the ground that she was a purchaser of the annuities for her life, by her releasing her dower. This was followed in Davenkill v. Fletcher, Amb. 244, citing the above case, and also Blower v. Murrch, since reported in 2 Ves 420. This same rule has also been adopted and followed in New York and some other states, as a reference to authorities cited by counsel for complainant will show. In New Jersey the above rule is not followed, the court saying that where a provision is made by will for a wife, in lieu of dower, she is not bound to accept, and that time is given her to...
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