The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1860-05-02
DHcIs1 oNs OF THE HIGH COURT
OCTOBER TERM, 1859.
rnrrn Ltrnr.str raa IN E.ErERv cl.nIe.
no. 1884.
NJ. NJ. Whitley ct al. vs.. A. A. Stephen
~ al

No. S9S4.
NJ. NJ. Whitley ct al. vs.. A. A. Stephen
son ct al.
Three questions are presented by the |
respective parties in this assignment Of |
error for our determination.
The first we shall notice. is whether il /
is the duty Of commissioners appointed |
to divide an estate, to allow the widow on
her application. the property exempted
by law, art. l72, p. 400. q Arts. 2sO-2Sl, /
p. 500, COde,) from seizure under eXeCu-
ton, &C, before proceeding To division;
and whether on failure to allow the wild
ow to retain and hold to her own use"
such property-it is error in the Probate
Court to confirm the report Of the COM
missioners. depriving her of this right,
her exceptions to such
report and division. In Coleman vs..
Brooks, opinion Book II. p. $50. we
havesheld that the widow under the stat
ute is entitled TO this exempt estate over
and above her distribution share
The act declares that she shall be al
lowed to retain and hold it." Il is no
part of the estate Of the decedent, subject
to administration or division. 1t de-
sends directly to and vests by operation
Of law in the widow absolutely discharged
band, or the claims of the heirs. Just in
thesame manner that the real estate vests
in the heir. The only difference is that
in the case Of the exempt property, it
vests absolutely, and at all events-and
in the case Of real estate it vests sub mo2o
only. There can be therefore, no greater
propriety in subjecting exempt property
to the course Of administration. than real
estate, not necessary for the payment Of
debts. The Probate Court has no iuris-
diction over either. a. against the claim
Of those in whom the law, directly and
Immediately vests the title on the death
Of the husband or ancestor. the commits
sioners had no right, therefore. TO divide
this property, and the Court erred in sane
tioning such a proceeding against the
claim Of the widow to retain and hold"
it. as allowed by law.
The second question presented is,
whether the commissioners in making d.
vision among the children-lsome Of
whom have received ARRANGEMENTS in the
| lifetime Of the deccdentl and the widow,
| should allow the widow q child's part Of
the husbands personally, not disposed Of
At his death after paying debts &C., or
/ whether they should first deduct there
/
/ the children, and then divide the balance
| between the widow and children. giving
/ 10 the widow thereby. a childs part Of
such balance instead Of a childs part Of
/ the whole estate not disposed of at the
| death Of decedcnt.
| To this question the statute furnishes a
full and perfect answer Art. los, p. ~,
/ Codel '.She Is entitled to share in the
/ s,N
| the residue left after paying the debts of
the deceased this Is the only deduction
10 be made before the widow rights at
| tach
The last question for our decision in
this case is, whether I'm case OF intestacy,
the widow of the deCedent is excluded
from the dover and distributlye share,
TO the extent of the value of her separate
estate. a. in case Of testacy and renuncia-
ton by her.
This question involves a construction Of
Art. 81. =. 33T, Sec. sand Sec. - Il %,
Of the Code. ?. 1850 a 90.
By Art. 80. See 3, treating of the sep
arate property Of married women In
case the wife should have a separate prop
erty at the time Of the death OF her hus-
band. equal in value, to what would be
]
and personal estate. and he should have
made will, she shall not be at liberty to
signify her dissent to such will. or re-
nounce any bequest therein, in her favor,
and elect to take her dover in the real es-
tate. and her distributive share in the
personally. But il her separate property
be not equivalent in value 10 what would
be the value of her dover and distribu-
{ ] e I Il
{ she may signify her dissent to the will as
in other cases now provided by law. and
claim to have the deficiency made up &c
her. notwithstanding the will &c.
This article taken by itself, has refer
j encc only to the widow where there is a
, will making provision for her, and She de
, | sires TO renouuce the Will OF her husband
she having a separate estate.
, Section %. p. 467, treats of the wild
S ow's dover and distributive share wher
e she has no separate estate.
. Art. l62, p. 467, provides in such case
when any person shall die intestate, o.
shall make a last will and testament, anC
= not make therein an express provision 70
g his wife. by giving and deyising unto he
= such part OF parcel Of his real and person
al estate. as shall be fully satisfactory {,
her. such widow may signify her dissen
thereto" SC, and then either il
case Of intestacy. or Of unsatisfactory de
wise or bequest, the widow shall be emit
% tied to dover, in the following manner
e to-wit": one third part Of the real estat
n for life, or in case Of no child &c, on
- half Of the real estate in fee simple, dc
e and she shall be entitled to share in tn
p personal estate, IL there be no children o
= but one child. out of the residue left afte
i paving the debts Of the deceased, on
a half-but il there be more than one child
a in that case she shall be entitled to
e childs part, in either case fee simple. @
a in lieu Of her Childs part. one third {
l. the personally for life, at her election.
e. This section designs to fix the rights {
d the widow, when she had no separate e
+ tate.
h Sec. .. p. 400, treats "of the widow
"A remedy for dover" This section as il
Is deed does the whole Code, distinguish,
n clearly between dover" Of real esta,
,r and "distributiyc share" in personal e
a. tate. And IL will be remembered tn,
le the section now under consideration trea
49, alone OF Dover technically, and Of " IN
remedy" for its sllotment.
IL has no relation 10 personal estat
a whatever. By the law relating to III
separate estate Of married women" Or
IL vision is made, as TO the rights Of the wi
ne ! having a separate estate in caseo Of the deaf
r. Of her husband leaving a will
BY the act treating "of the widow
Il, dover and distTibutive share '-prOvisiC
.e is made for all cases Of testacy or intest
id cy, when the wife has no separate estat
a. By Art. l76, Of the section treating e.
AZ the widows remedy for dover lwhiC
ir- we have seen includes real estatel it
in provided that nothing herein contain,
IN. shall give TO any widow. who had Will
married a separate property. any right
As dover beyond what is provided in the Ia
he in regard to the separate property Of ma
no ried women. but the two acts shall be co
ne strued together in this respect a. one law
ne In all cases therefore whether Of test
as cy or intestacy, where husband di
ut leaving a widow with separate estate-h
~. right 10 dover lin the real estatel
to controlled by the provisions OF Art. 80,
nv 337, Code concerning marriages &c.
But her distributive share Of the p,
lie sonal estate, in cases Of intestacy, whet
ng er she has separate property or not, is
he cured to her absolutely and independer
is " by the 22d section, Hutch. l62 & 1913,
ID 467. Code already quoted.
ce. Under the views here expressed I
in ruling and decree Of the Court below, v
erroneous.
aet The decree is therefore reversed a
ba- cause remanded for further proceedin
ac- in accordance with this opinion.
nd HARRIS