Hinnershits v. Bernhard's Executors

The opinion of the court was delivered by

The first question is whether the rights of the legatees were so far vested that the act of 1848 could not touch them. At the testator’s death, his widow had her election to stick to her dower and abandon the will, or stick to the will and aban- . don her dower. Her inducements were her common law dower on the one hand, and her testamentary provision on the other. Pending her election, the legislature directed by that act, that the elev-. enth section of the act of 1883, which declared that every bequest to the testator’s widow shall be taken to be in lieu of dower, unless it be otherwise expressed, “ shall not be construed to deprive the widow of the testator, in case she shall elect not to’take under the last will and testament of her husband,.of her share of the personal estate of her husband under tlie intestate laws of .this commonwealth; but that the said widow may take her choice, either of the bequest or devise made to her under any last will or testament, or of her share of the personal estate under the intestate laws aforesaid.” Accurately speaking, the widow of a tes-' tate husband has no share of the personal estate but what is given her by the will; still it is obvious the intention was to put it in her power, if she pleased, to have what she would have got had there not been a will. The rights of the parties, however, were ' fixed at the death, and the legislature could not unfix them. It is said they were not vested because the widow had not made her ■choice; but they certainly would be impaired by swaying her choice by means of a premium for throwing the burthen of her provision on the legatees; and a law to give her such a premium, would be unconstitutional. She was entitled to choose between her testamentary provision and her dower, as it was at the death; and if her right of choice were enlarged it wouldbreak in on the, rights to be affected by it. It is not to be believed the testator would have made the same dispositions had he supposed the legislature had power to make it worth her while to disarrange them;; and in that aspect, his rights also, would be invaded.

The next point is more palpably unfounded. ’ The widow claims ’ a moiety of the profits of the real estate as dower. The' act of 1833, re-enacting a provision of the act of 1794, declares that' every devise or bequest to the testator’s widow shall be in lieu of, her dower, unless the contrary be expressed: “Provided that’ nothing herein contained shall deprive the widow'of her choice. *522either of dower, or of the estate or property so devised or bequeathed.” The act of 1833 had declared that when “an intestate shall leave a widow and collateral heirs, or other kindred, but no issue, the widow shall be entitled to one-half of the real estate, including the mansion house and ,the buildings appurtenant thereto, for the term of her lifeand this is claimed as a statute species of dower, though it derives no support from the act of 1848.— But there was no intestacy, and the intestate laws have never operated on land which has passed by will. In no part of them is the widow’s share called dower. In this instance she took by the common law, and no more than it gave her. The matter has been viewed in this light by the profession; for no-lawyer ever thought of proceeding for dower in the orphan’s court : — a conclusive proof that her estate under the’ intestate laws is peculiar.

The remaining point has not a shadow of reason to support it.

Judgment affirmed.