Beard v. Knox

         1. The phrase, " absolute power of disposition," does not necessarily include the power to devise by will. It is noticeable that even at common law, though the husband might, during the life time of the wife, reduce to possession and dispose of her estate, yet his power so to do ceased at her death. Under the Civil Code of France, from which, or from the similar law of Louisiana, our statute is evidently modelled, the husband can " sell, aliene, and mortgage the common property without the consent of the wife, but cannot devise by will any more than his own share." Story's Conflict of Laws, 122.

         2. The second point of defendant's demurrer depends upon the construction of section 15 of the same Act.

         The word " reside," in sec. 15, means legal residence, which is synonymous with domicil. 2 Bright's Husband & Wife, 317. Crawford v. Wilson, 4 Barb. S.C. R. 504. All the decisions which draw a distinction between actual residence and legal residence or domicil, do so for the purpose of sustaining the intent of Legislatures in particular cases, and to prevent failure of justice.

         The domicil or legal residence of the wife follows that of the husband. Story's Conflict of Laws, 45. And as the defendant's testator had his place of business and domicil in this State at the time of his death, the plaintiff's domicil and legal residence was also in this State, and she is entitled to her full share of the common property, under the provisions of this Act.

         But the whole question is put at rest, in this State at least, by the decision of our Supreme Court. See Kashaw v. Kashaw , 3 Cal. 312.

         3. The third point of the demurrer claims that the plaintiff, by receiving the legacy of $ 500, elected to take the legacy in lieu of her share of the common property.

         In the States where dower exists, it is well settled that the wife cannot be put to her election between dower and a testamentary disposition in her favor, unless the will has expressly declared the legacy to be in lieu of dower, or the terms and provisions of the will are totally inconsistent with dower. Church v. Bull , 2 Denio, 430. 5 Hill, 206. Fuller v. Yates, 8 Paige's Ch. R. 325. McCartee v. Teller, 2 Paige, 511. 4 Kent, 58.

         It is not enough that the will renders it doubtful whether the husband intends the wife to have her dower in addition to the legacy; the intent must be declared in terms, or the provisions of the will be totally inconsistent with such a construction, or the wife takes both dower and legacy. The same natural equity exists here, and requires the application of the same rule.

         The rule that " one who takes an interest under a will cannot dispute the will," cannot apply in this case, for the validity of the will is not called in question, but only the proper construction; the plaintiff claiming that the will only disposed of the testator's interest in the property.

         JUDGES: Murray, C. J., delivered the opinion of the Court. Heydenfeldt, J., and Bryan, J., concurred.

         OPINION

          MURRAY, Judge

         The statute of this State, defining the right of husband and wife passed April 17, 1850, provides, that " all property, acquired by either husband or wife, except such as may be acquired by gift, bequest, devise, or descent, shall be common property." It is further provided, that the husband shall have the entire control of the common property, with absolute power to dispose of it, and upon the dissolution of the community by death of either the husband or wife, one half of the common property shall go to the survivor, etc.

         The first question raised is, as to the power of the husband to convey the common property by devise or will, and thus defeat the rights of the surviving wife. This, we have no hesitation in saying, cannot be done. Our statute has done away with the common law of right of dower, and substituted in place, a half interest in the common property. This liberal provision was intended for the benefit of the wife, and the intention of so humane and beneficent a law should not be defeated by adopting a rule of construction which would leave the future maintenance of herself and family entirely at the caprice of the husband.

         The words, " with absolute power to dispose of," ought not to be extended to a disposition by devise. The husband and wife, during coverture, are jointly seised of the property, with a half interest remaining over to the wife, subject only to the husband's disposal during their joint lives. This is a present, definite, and certain interest, which becomes absolute at his death, so that a disposition by devise, which can only attach after the death of the testator, cannot affect it, for such a conveyance can only operate after death, upon the very happening of which the law of this State determines the estate, and the widow becomes seised of one half of the property.

         The appellant relies on the words of the statute, " shall reside and acquire property," and seems to think that this provision was intended to give greater privileges to those wives actually living or residing in the State, than was conferred on those not actually resident. In Kashaw v. Kashaw , 3 Cal. 312, we held the domicil of the husband was the domicil of the wife in contemplation of law, and that it was not necessary that she should be an actual resident in the State. The reasoning of that case will apply with equal force to the present, and it can hardly be supposed that the Legislature intended to deprive the wife of all right to the husband's estate, as a penalty for not residing in the State, which would be the necessary result, if the appellant's construction was correct.

         But it is urged, that by accepting the legacy, the plaintiff is estopped from setting up a claim to one half of the estate.

         It is a familiar principle, that an heir cannot take as a legatee, and afterwards dispute the validity of the will; but this principle does not apply in the present case. The deceased had no authority to dispose of but one half of the property; this he might do to whomsoever he pleased. The plaintiff does not contest that right, but only seeks to withdraw her own property from the operation of a conveyance, which it is claimed has despoiled her of it. This she may do with the greatest propriety, as the legacy received by her was part of her husband's estate, and not her own.

         The objection, that there is a non-joinder of parties, comes too late; it should have been taken advantage of by demurrer.

         The judgment of the District Court is affirmed, except as to the five hundred dollars, which it is directed to allow out of the estate of the deceased, and not out of the wife's moiety.