Opinion
12803
January 7, 1930.
Before SEASE, J., Spartanburg, summer term, 1928. Affirmed.
Suit by Mrs. Stella C. Bomar against Gertrude Bomar Wilkins and others. Decree of the probate Court dismissing the petition was affirmed by the Circuit Court, and petitioner appeals.
The decree of the probate Judge was as follows:
"This is a suit in which the petitioner seeks to obtain dower in a lot of land on the east side of Liberty street in the city of Spartanburg, which the testator devised (in a manner somewhat peculiar) to his three children. A statement of the facts is necessary to a clear understanding of the issue involved.
"B. Frank Bomar, a widower with three children, and Stella P. Cannon Gray, a widow, were married June 27, 1911. They lived together until the death of the husband during the month of January, 1918. The will, which bears date December 7, 1917, was admitted to probate January 25, 1918, and will be found in the files of this Court in Record Box 100, Package 46. See also Will Book N at pages 398-406.
"The first four items of the will are concerned exclusively with making provision for the widow. By them the testator gives to his wife the sum of $2,000 in cash, the use of the family residence for twelve months (or the value thereof at $20 per month), a real property in the town of Inman, certain household furniture and equipment, the wedding gifts, and the family silver. He gives directions for winding up his business, directs that all the real estate shall be sold for the payment of debts except the Liberty street store building, gives a piano to Gertrude and his watch to Louie, and provides for equality between his three children.
"In this proceeding, the petitioner seeks to receive dower in a lot of land on the east side of South Liberty street, on which two brick stores have been erected. This store building was bequeathed by the testator (upon terms somewhat peculiar) to his three children, by the eighth item of the will, which reads as follows: `I give, devise and bequeath unto my three children, Gertrude Bomar Wilkins, Miriam Bomar Shores and Louie J. Bomar, the two store houses and the lot of land on which they stand lying on the east side of South Liberty street in the city of Spartanburg, subject, nevertheless, to the following condition and proviso: It is my will and desire, and I hereby direct that my executors hereinafter named shall rent the stores and collect the rental from time to time, and divide the income so derived after the payment of taxes and necessary repair, between my three children. And I further direct that the said property is not to be sold, conveyed or mortgaged by my said children, until my son Louie J. Bomar arrives at the age of forty years, and only then upon the approval of my friend S.T. Lanham.
"Since the death of the testator, the petitioner has received all of the property which was devised to her, including the two houses and three lots at Inman, the household furniture and equipment, the family silver and the legacy of $2,000. Returning to her former home after the death of her husband and having used the residence for only a month of the year which had been given to her, she was compensated for the eleven remaining months at $50 per month instead of at $20 per month as the testator had directed, receiving $550 in this way. It appears from the testimony that the stepchildren have treated her with due deference, and with becoming affection and kindliness.
"The property at Inman produces a monthly rental of $17. There is no evidence to whether or not she has invested the $2,550 which she received in cash. Presumably, the furniture and equipment given her was sufficient for her needs in furnishing a home.
"All of the real property (except the Inman property, devised to the widow, and the Liberty street property, given to the children) has been sold for the payment of debts, which are by no means entirely paid. The Inman property is free from incumberance, while the Liberty street property is heavily incumbered. The administratrix has been renting the stores, and with the rental has tried to pay taxes, necessary repairs, and the interest on the mortgage debt.
"The children of the testator have received nothing from their father's estate, except that the piano was delivered to Gertrude and the watch to Louie. Mrs. Shores, referring to her stepmother, says (testimony, p. 7), `she has practically everything.' This, I take it, means that the stepmother has had what there was to be had; that no one of the children had received any benefit from the estate.
"The real property belonging to the estate was sold from time to time for the payment of debts. The petitioner claimed no dower, but willingly executed conveyances to various purchasers. No claim of dower was made by her until April 28, 1925, more than seven years after the death of her husband, when this suit was commenced by service of summons and petition upon the defendants — the three children of the testator, the tenant which occupies the building, and the mortgagee from whom B.F. Bomar had borrowed money upon the property prior to his marriage with the petitioner.
"Under the view which I take of the case, which was orally announced to counsel upon the conclusion of the argument, there is no necessity for stating the contentions of the parties, as set forth in the pleadings. Only one issue arises, and that is the question of election. Was the petitioner put to election between the provision made for her by her husband in his last will and testament, and her dower? If this question be answered in the affirmative, then there is no doubt but that she has already elected; if it be answered in the negative, then there is nothing which can defeat the dower, except mortgages given prior to marriage, which would operate to reduce the value of the dower.
"The husband cannot dispose of his wife's dower in his real estate during life, nor can he direct the disposition of it after his death, by will or otherwise. The widow can be deprived of it only by her voluntary consent, or by her own act. But the husband has the undoubted right to dispose of all of his property (except the wife's dower therein), and in making testamentary disposition of it, he may impose any condition that is not contrary to law. He may make provision for his wife by will, declaring that such provision is made in lieu or bar of dower, and if the wife accepts such legacy, she loses dower. Or he may make provision for her, without such express declaration that the legacy is given in lieu of dower. In such a case, she will receive both dower and legacy, unless the two are inconsistent under the will and would defeat the intention of the testator. Let it be remembered that dower and legacy to the widow are not necessarily inconsistent. In fact, the Courts have gone rather far in giving both dower and legacy. But cases have frequently arisen where the Courts have held that it is the widow's duty to choose between the two.
"The principles are set forth in Gordon v. Stevents, 11 S.C. Eq. (2 Hill, Eq.) 46, 27 Am. Dec., 445, in which it is further said (emphasis added): `It seems to be universally agreed, too, that although no such condition or declaration is expressed in the will, she will not be entitled to both the legacy and the dower, if retaining her dower would be inconsistent with the provisions of the will, and defeat the intention of the testator.'
"In Hair v. Goldsmith, 22 S.C. 568, it is held that a devise to a widow is not in lieu and bar of dower, unless so declared or unless manifestly repugnant to the claim of dower. (Italics added.)
"In Bannister v. Bannister, 37 S.C. 529, 16 S.E., 612, it is held that where the will, taken as a whole, showed an intent that the provision for the widow was not in addition to her dower, then she must elect between the two; she cannot take both.
"The mere fact that the dower for the widow will reduce the amount given to others does not put the widow to her election. But if it may be clearly gathered from the will that the testator has made provision for his wife, that he intended to make only the provision which he did make, and that the remainder of the property was bequeathed to others in a manner which is manifestly repugnant to the idea that the widow should take dower therefrom, then the widow is put to her election, and must decide between the will and the dower.
"In Otts v. Otts, 80 S.C. 16, 61 S.E., 109, the testator gave his widow certain real and personal property in consideration of money which she had loaned him; he also gave her a tract of 88 acres for life. The remainder of a large landed estate was divided equally among the children. It was held that the widow was not put to her election, since the only effect of the allowance of dower would be merely to reduce the value of the shares of the devisees.
"In Matthews v. Clark, 105 S.C. 13, 89 S.E., 471, 472, it was held that the widow was put to her election by a will which directed that the real estate be converted into cash, and that the sum of $3,000 be paid to the widow therefrom `as her full and entire share of all my personal and real estate'; the disposition made by the testator of his real estate not being consistent with the idea that it was liable, to the extent of one third, to be occupied by the widow during her life.
"The foregoing decisions of the Supreme Court of South Carolina seems to be in keeping with the current of decided opinion in other jurisdictions, some of which I shall briefly notice.
"In Thompson v. Burns, L.R. 16, Eq. 592, and an English case, Vice Chancellor Wickens said: `When a man makes a will by which he gives to his widow benefits carefully measured and defined there is a strong presumption that he intends her to take nothing more.'
"In come of the cases, notably in the State of New York, it is said that the test of inconsistency is whether the setting out of one-third of the real estate by metes and bounds to the widow for her dower would make the carrying out of the devises of the will impossible.
"In Holdich v. Holdich, 2 Young C. Ch. Cas., 18, 63 Eng. Reprint, 8, 22 A.L.R., 455, it is held that: `To put the wife to her election on the ground that her claim to dower is inconsistent with the intention of the testator as to some other legatee or devisee, there must be something beyond the mere gift to the legatee or devisee. There must be such circumstances attending the gift as that if dower be admitted, the legatee or devisee will be disappointed of the enjoyment of the property in the mode pointed out by the testator.'
"It seems to be generally held that the widow is put to her election, as between will and dower, where the allotment of dower would derange the scheme of the will.
"There are many other cases in point, in our own State and in other States, some of them doubtless stronger than those which I have cited. But these are believed to be fairly chosen, as decisive of the principles involved here, and sufficient for the purpose of this inquiry.
"I shall now endeavor to apply the rules of law as gathered from the cases which I have reviewed, to the facts involved in the instant case.
"The testimony is not long. There was no dispute about the facts, and there is little difference of opinion as to the legal principles involved. The main difficulty lies in the application of well-settled principles of law to undisputed facts.
"From the testimony, it appears that Frank Bomar owned a modest property, and that he was heavily in debt. Presumably, he knew that he was about to die. He had three children and a second wife. He wished to make appropriate provision for his widow, and, if possible, to save something for his children, which should be tied up in such a way as that there would be something left for them when they had reached middle life. The will was made, and the testator, having set his house in order, prepared to die.
"The widow received all of the property devised to her by the will which she accepted promptly. The testimony shows that she received $330 more in money than was contemplated in the will. In addition, apparently she got everything else of a personal nature that she wanted. Mrs. Shores says, `we were glad to give it to her.'
"The testator desired that the Liberty street property, if it could be saved, should descend to his posterity. He gives it to his three children equally, with the restriction that it is not to be sold or mortgaged until Louie is 40 years old, and only then upon the approval of one of the testator's friends. Apparently he expected that the Liberty street property should be free from debt, for he directs that the income shall be used for taxes and repairs, and the balance distributed; he says nothing about interest on the mortgage debt.
"But the bequests to the widow were paid, and the mortgage indebtedness on the children's property remainded. And now the widow brings suit for dower in the property devised to her stepchildren.
"The testimony was taken July 16, 1926, and the case was not argued before me until the first day of the present month. I have given a careful consideration to the facts, and have listened with painstaking attention to the argument of counsel, being already familiar with many of the authorities cited.
"It seems to me that the peculiar terms and condition upon which the testator devised the Liberty street property to his children, the provision for the payment of debts, and the provision which he made for his widow in the first four items of the will, by absolutely necessary implication, exclude the idea that the petitioner should have dower in the Liberty street property.
"The award of dower to the petitioner in the Liberty street property would destroy the scheme of the will, and thwart the testamentary intent. The property is a single boundary, covered by a single building, which includes two stores. Dower could not be admeasured to the widow by metes and bounds; it would necessitate a sale of the property. A sale at this time would force the property upon an unfavorable market, some years before the testator intended that it should be sold. It would give the children a part of the value of the property, in money, which he did not intent for them to have at this time; it would force a distribution which he intended should be deferred for another decade at least. Under such circumstances, I hold that the testator did not intend for the widow to have dower in the Liberty street property; that the petitioner was put to her election by the terms of the will; and that she is not entitled to dower in the Liberty street property.
"It is therefore ordered, adjudged, and decreed that the petition be dismissed, with costs."
The decree of Judge T.S. Sease is as follows:
ORDER DISMISSING APPEAL"This is an appeal from the decree of April 12, 1927, passed by probate Court for Spartanburg County, denying the appellant's petition for dower in a lot of land on the east side of South Liberty street in the city of Spartanburg, which property was devised by the late B.F. Bomar to his three children. By three exceptions the appellant challenges the correctness of the probate decision. A certified copy of the record from the Court below was before me, and the case was fully argued by the counsel at the recent term of Court for Spartanburg County, on July 17, 1928. I have given a very careful consideration to the issues involved, in the light of the authorities cited by counsel.
"I am satisfied with the probate decree. I find that the widow under the last will and testament of her decreased husband, B.F. Bomar, was put to her election as between the dower which the law gives her, and the provision made for her in the will. She has made her election. It follows that she is not entitled to the dower she seeks. This finding disposes of all exceptions. It is therefore ordered, adjudged, and decreed that the exceptions be overruled, that the judgment and decree of the probate Court be affirmed, and that the petition be dismissed with costs."
Messrs. Nicholls, Wyche Byrnes, for appellant, cite: As to dower: 34 S.C. 85; 22 S.C. 556; 30 S.C. 254; 80 S.C. 16; 43 S.C. 433; 59 S.C. 522; 83 S.C. 366.
Messrs. Bomar Osborne, Lanham Lanham, C.Y. Brown, and Odom Bostick, for respondents, cite: Acceptance of distributive share bars dower: Sec. 5236, Code; 58 S.C. 125; 45 S.C. 51; 56 S.C. 189; 57 S.C. 521; 74 S.C. 541; 11 S.C. Eq., 46; 47 Am. Dec., 445; 17 S.C. Eq., 322. Basis of doctrine of election is the intention of testator: 22 A.L.R., 439; 5 Ont. Rep., 738; 15 S.C. Eq., 37; 18 S.C. Eq., 1; 23 S.C. Eq., 84; 22 S.C. 556; 30 S.C. 249; 3 L.R.A., 497; 37 S.C. 529; 105 S.C. 13; 113 S.C. 437; 42 S.C.L., 407; 64 Am. Dec., 758; 34 S.C. 85; 43 S.C. 428; 59 S.C. 516; 80 S.C. 16; 83 S.C. 363; 105 S.C. 13. As to intention: 3 L.Ed., 374; 14 Gratt., 540; 42 Conn., 276; 131 N.Y. Supp., 197; 31 Barb., 413; 27 Ont. Rep., 485.
January 7, 1930. The opinion of the Court was delivered by
For the reasons assigned by the probate Judge confirmed by the circuit Judge, it is the judgment of this Court that the judgment of the circuit Court be affirmed.
MR. JUSTICE COTHRAN, and MESSRS. JUSTICES BLEASE, STABLER and CARTER concur.