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Corry v. Lamb.

to the wife a third of the remainder of his real and personal estate, as and for her right of dower, during her life. She accepted it, and it was held that it was a relinquishment of her claim for dower out of the realty which had been conveyed by the husbaud alone, as well as out of the lands whereof the husband was seized at the time of making his will. It was urged that the provision which the widow accepted, was only a substitute for dower in the estate which the husband had at the time of making the will, and had no bearing upon the right of dower in property previously conveyed. But, said the Vice Chancellor, "No case is to be found in the books where the distinction here taken has prevailed; and it is difficult to perceive upon what foundation it can be supported, unless there is something in the bequest to show it was intended as a substitute for dower only in some particular parts or portions of the real estate whereof the husband had been seized, and not in the whole to which the right would ordinarily attach."

Palmer v. Voorhis, 35 Barb. 479, is a case in which the testator by his will made a provision for the benefit of his wife, which was to be a charge upon his real estate, and declared it should be received by her in lieu of dower and thirds of his real and personal estate. But her dower was held to embrace not only an estate in the lands whereof her husband died seized of an estate of inheritance, but also in all lands of which he was so seized during coverture, notwithstanding he may have parted with his interest by a deed of conveyance to others.

The statute of distributions of South Carolina passed in 1791, provided: "That in all cases where provision is made by this act for the widow of a person dying intestate, the same shall, if accepted, be in lieu and bar of dower." In construing this language of the statute, Whitner, J., in Evans v. Pierson, 9 Rich. (S. C.) 9, says: "It is suggested that the clause in review has reference only to the lands of which the husband dies seized. * * * Such has not been the course of judicial interpretation heretofore. The right of dower attaches to all the lands and tenements whereof the

Corry v. Lamb.

husband was seized during the coverture. Hence, it has been held, that when the term is used in the act, it embraces the whole right, and consequently where a widow accepts a provision under the act, it is in lieu of dower entirely, whether in lands aliened, or in those of which the husband continued seized, the design of the statute being clearly to give the right of election between dower at common law and the provision made by the act." See, also, Avant v. Robertson, 2 McMull. (S. C.) 215.

In Haynie v. Dickens, 68 Ill. 267, the widow claimed dower in the lands of which her husband was seized during coverture, but which were sold during his life-time on execution. The plaintiff had never released her dower, but the defense relied on was, that her right was barred by a provision made for her by her husband in his will. By the 10th section of the dower act of Illinois, it was provided: "Every devise of land or any estate therein by will shall bar her dower in lands unless otherwise expressed in the will, but she may elect whether she will take such devise, or whether she will renounce the benefit of such devise, and take her dower in the lands of her husband." It was urged that this section of the statute could have no application to the case at bar, for the reason that the land in which dower was claimed had been sold on execution, and the testator at the time of his death had no interest in it. The court said, "We do not think this view of the law can be sustained. It was doubtless the intention of the legislature to provide, that a devise of land or any estate therein should bar the widow's dower in all lands of which her husband was seized during coverture, whether he had alienated the same in his life-time or not."

The legislation of Massachusetts bears a marked resemblance to that of Ohio, in regard to the rights of a widow claiming to be endowed in the lands of her husband, though a provision has been made for her in his will. Section 24, of the Massachusetts statute of wills (Genl. Stats. 1860, ch. 92), is in pari materia with sections 5963 and 5964, supra, and reads as follows: "When a man dies having lawfully disposed of his estate by will, and leaving a

Corry v. Lamb.

widow, she may file in the probate office in writing her waiver of the provisions made for her in the will; and shall in such case be entitled to such portion of his real and personal estate as she would have been entitled to if her husband had died intestate. If she makes no such waiver, she shall not be endowed of his lands, unless it plainly appears by the will to have been the intention of the testator that she should have such provisions in addition to her dower." In Buffington v. Fall River National Bank, 113 Mass. 246, the demandant of dower contended that the land having been aliened in the life-time of the testator, was no part of "his lands," and, therefore, not within the provisions of the statute above quoted. "But," said the court, "the claim of dower out of lands aliened, without release by the wife, stands upon the same right as that of dower in lands remaining a part of the estate devised. * * * The same reason exists for applying the bar in one case as in the other. There is nothing in the phraseology of the statute to limit its application to lands held at the decease of the testator. The expressions' endowed of his lands,' and 'dower in the lands of her husband,' when used affirmatively, embrace, without question, dower in all lands of which the husband is seized at any time during coverture."

At variance apparently with the decisions which we have herein cited, is the case of Borland v. Nichols, 12 Pa. St. 38, in which it was held that the widow's acceptance of a devise to her did not, under section 10, of the intestate law of 1797, bar her of her dower in land which her husband conveyed in his life-time, and in the conveyance of which she did not join; and the fact that the husband conveyed with general warranty, will not restrain the operation of the statute. The court in commenting upon the act observed, that the simple absence of every direct expression indicative of a design to bring lands aliened within the purview of the enactment, ought in itself to be accepted as sufficiently proving that no such design was entertained. It is not unreasonable that the court might have reached a different conclusion, and have found an equivalent to such "direct expression" had the Ohio enactments been under consideration. The requirement of section 5964,

Corry v. Lamb.

that the court should explain to the widow her rights under the will and by law, could not be complied with without making known to her, her statutory right of dower comprehending aliened as well as other lands. And, as by electing to take under the will she would be barred of her dower, and compelled to take under the will alone, it would at once be obvious that she could not in such case be dowable in lands that had been aliened, and were therefore beyond the scope of the will.

It has been suggested that the covenants contained in the mortgage to Adolphus H. Smith run with the land, and that an action might be maintained thereon by any grantee in possession at the time of a breach by reason of assigning dower to the widow. A debt or claim, it is said, would thus be created against the estate of the testator or mortagor, and the several devises and bequests in the will other than those of the widow, would be lessened or defeated by her claim of dower in aliened lands, for that, in taking under the will in lieu of dower, she becomes a purchaser for a valuable consideration, and holds the property thus acquired free from the claims of the creditors of the estate. The decision of the case. at bar does not require the determination of questions to which such considerations might give rise. It is enough to refer to the approved doctrine, that if the testator has made such a disposition of his real estate that the assertion by the widow of her right to dower would prevent that disposition taking effect according to his intention, then she must elect to abandon either her dower or the benefit given her by the will. Dixon v. McCue, 14 Gratt. 549.

In the view we have thus taken of the case, the plaintiff is not entitled to dower in the lands sold and conveyed under judicial proceedings in the foreclosure suit, and there should be judgment for the defendant.

Judgment accordingly.

State ex rel. New England Mutual Life Ins. Co. v. Reinmund.

STATE EX REL. NEW ENGLAND MUTUAL LIFE INSURANCE Co. v. REINMUND.

Taxation of foreign insurance companies-Retaliatory laws-Rev. Stats. secs. 279, 282, 2745.

1. Section 2745 of the Revised Statutes, which provides that every agency of an insurance company organized out of this state, shall return to the auditor of the county where such agency is located, in the month of May annually, the amount of gross receipts of such agency, which shall be entered upon the tax list and be subject to the same rate of taxation as other personal property, prescribes the rate of taxation upon every foreign insurance company doing business in this state. Section 282 of the Revised Statutes, which provides that when, by the laws of any other state, any taxes are imposed on insurance companies of this state doing business in such state, the same obligations shall be imposed upon all insurance companies of such other state doing business in this state, is operative only when it is shown that the law of the state where such company is organized taxes Ohio companies doing business there at a rate higher than foreign companies are taxed by the mode provided by section 2745. And in such case the superintendent of insurance is authorized to assess and collect, from such foreign company, in addition to such tax on the gross receipts, such sum as will be sufficient to make the total equal to the amount that would be realized were the rule of taxation of the state under whose laws the foreign company is organized applied to such company's business transacted in this state, but no

more.

2. Where a foreign insurance company has furnished to the superintendent of insurance a certificate of the valuation of its policies in force on the 31st day of December preceding, upon the lives of citizens of this state, made by the proper state officer of the state under whose laws such company is organized, and such valuation is according to the standard provided in section 279 of the Revised Statutes, such superintendent is not authorized to require compensation for valuation of such policies, notwithstanding such company has paid a like charge in former years, and has furnished to such superintendent, at his request, the data from which such valuation was made.

(Decided June 7, 1887.)

MANDAMUS.

The New England Mutual Life Insurance Company, The John Hancock Mutual Life Insurance Company and The Berkshire Life Insurance Company, are insurance companies created under the laws of Massachusetts. As the material

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