
    *Cocke’s Ex’or & Others v. Philips.
    April, 1841,
    Richmond.
    Widow — Renunciation of Husband’s Will — Construction of Statutes. — A married man dies possessed of personal estate, leaving a will wherein he bequeaths his whole estate to his nephews and nieces, and makes no provision for or mention of his wife : Held, upon the construction of the statute 1 Rev. Code, ch. 104, § 26, 29, that, in order to entitle herself to a distributive share of her husband’s personal estate, the widow must declare her dissatisfaction with the will and renounce all benefit under the same, within the time and in the manner prescribed by the statute ; disen-tiente Brooke and Stanard, J.
    Dower — Estates in Expectancy. — Husband dies entitled to a remainder in fee of real estate, expectant on an estate of freehold therein ; his widow is not entitled to dower of the land when the remainder falls in.
    Joseph Cocke being entitled to the remainder in fee in 141 acres of land in Hanover, and to the remainder likewise in threq slaves, expectant on a life estate therein then held by his mother, by deed of trust, in his lifetime, conveyed his remainder in both the land and slaves to Philip Winston, upon trust to secure a debt of 318 dollars with interest to William Cocke; and being thus entitled to the equity of redemption of the remainder of the land and slaves, and some personal chattels in possession, of trivial value, he died in 1823. He left no children or other issue. He was, however, a married man ; but his wife had separated from him many years before his death, and was then still living apart from him; though, it seemed, the separation was imputable to his own misconduct, not to any fault of hers. He left a will, in which he made no provision whatever for his wife; but, after charging his whole estate with his debts, he devised and bequeathed the same, subject thereto, to his nephews and nieces, thirteen in number. And Joseph Wingfield, an executor named in the will, took upon himself the trust.
    *In 1824, after Cocke’s death, but before the death of his mother the tenant for life, his remainder in the 141 acres of land was sold by Winston, the trustee, under the deed of trust to secure the debt of 318 dollars to William Cocke, upon the requisition of the creditor’s administrator, who himself became the purchaser at the sale. The purchase money exceeded the debt; the bond for which was taken in by the trustee, but a large balance of the purchase money remained unpaid.
    Cocke’s mother, the tenant for life, died in 1827, and upon her death, the three slaves came to the possession of his executor Wingfield.
    Cocke’s widow married Thomas Philips, whom she also survived. She never made any renunciation of her first husband’s will; and never during her first widowhood, or during the life of her second husband, set up a claim to any provision out of her first husband’s estate, real or personal.
    But in 1835, after the death of Philips, she exhibited a bill in chancery in the circuit superior court of Hanover, against Wingfield the executor of her first husband Cocke, his devisees and legatees, Winston the trustee, and the purchaser of the 141 acres of land under the deed of trust; wherein she claimed dower of that land, and the share allowed her by law of Cocke’s personal estate; and prayed an account of Wingfield’s administration, and a decree for her dower of the land, and for her distributive share of the personal estate.
    The defendants, in their answers, admitting that the plaintiff was the relict of Cocke, denied, nevertheless, that she had any claim to dower of the land, her husband never having been seized of any estate in possession therein during the coverture, but only entitled to an estate in remainder; and as she had never renounced his will, they also denied, that she had any right to a distributive share of his personal estate; or, if she ever had a just claim thereto, they insisted that she ought *not, after such a lapse of time, to be allowed now to assert it.
    The court directed Wingfield to render an account of his administration of Cocke’s estate before a commissioner; and the account was accordingly stated and reported; by which it appeared that there was a balance in the executor’s hands, of 1477 dollars, principal and interest, of which all but 113 dollars arose from the hires of the three slaves,'accrued since 1827; and that only two of the slaves were now living.
    
      It further appeared, by evidence, that of the purchase money of the land sold under the deed of trust, after paying- the debt of 318 dollars with interest to William Cocke for which it was mortgaged, there remained still due from the purchaser, a balance of 909 dollars, principal and interest.
    Upon the hearing, the court declared, that the plaintiff was entitled to one third of the slaves of her first husband Cocke’s estate, to be held for her life, and to one-half of his other personal estate in absolute property; and decreed, in part, that Wing-field the executor should pay her one half of the balance reported to be in his hands; but as to the two slaves which now remained, as they were not divisible in kind, the court, for the present, made no decree as to them. And the court ordered, that the purchaser of the land should deposit the 909 dollars, the balance of the purchase money thereof yet due from him, in the bank of Virginia, subject to future order; and, in case he should fail to deposit the same within sixty days from the date of the decree, that the land should be sold by <a commissioner appointed for the purpose, and the proceeds be brought into court.
    
    *Upon the petition of the defendants, Wingfield the executor, and the devisees and legatees, of Cocke, this court allowed them an appeal from the decree.
    The cause was argued here, by Uyons for the appellants, and R. T. Daniel for the appellee, upon several objections taken by the former to the. principles and the details of the decree; but the court considered only two of them, viz. That the widow was not dowable of the land, because her husband was never seized thereof, but was only entitled to a remainder expectant on a freehold estate; and that, as she had not renounced her husband’s will, within the year after his death, she was not, upon the true construction of the statute,  entitled to any distributive share of the personal estate.
    
      
       Widow — Renunciation of Husband’s Will — Statutes. —As to when and how the widow must renounce provisions under her husband’s will, see Va. Code 1887, ch. 113, sec. 2559; W. Va. Code, ch. 78, sec. 11, p. 713.
    
    
      
      Dower. — See monographic note on “Dower” appended to Davis v. Davis, 25 Gratt. 587.
    
    
      
      It will he observed, that while the decree declared the plaintiff entitled to only one third of her husband’s slave property for her life, it gave her one half of the profits thereof, accrued since his death, in absolute property ; and that the debt due to William Cocke was treated as a charge upon the land mortgaged for it, instead of being charged upon the personal estate in exoneration of the real. — Note in Original Edition.
    
    
      
      The statute of wills, intestacy and distributions, 1 Rev. Code, ch. 104, § 26, 29, p. 381-2, the peculiar provisions of which must be borne in mind, in order to understand the point, and the opinions of the judges upon it.
      § 26. “When any widow shall not be satisfied with the provision made for her by the will of her husband, she may within one year from the time of his death” (in manner prescribed by the statute) “declare, that she will not take or accept the provision made for her by such will or any part th ereof, and renounce all benefit which she might claim by the same will; and thereupon, such widow shall be entitled to one third of the slaves whereof her husband died possessed, which she shall hold during her life, and at her death, they shall go to such person or persons, to whom they would have gone if such declaration had not been made ; and she shall moreover be entitled to such share of his other personal estate, as if he had died intestate, to kola as her absolute property : but every widow not making a declaration within the time aforesaid, shall have no more of her husband’s slaves and personal estate than is'given her by his will.”
      § 29. “When any person shall die intestate as to his goods and chattels, or any part thereof, after funeral debts and just expenses paid, if there be no child, one moiety, or if there be a child or children, one third, of the surplus shall go to the wife, but she shall have no more than the use for life of such slaves as shall be in her share,” &c.
      
      Thus, if the husband die testate, whether he leave children or not, the widow, on renouncing the will, is entitled to only a third of the husband’s slave property for life ; but if the husband die intestate leaving no children, she is entitled to half of his slaves for life. — Note in Original Edition.
    
   AUI/EN, J.

The testator Joseph Cocke made no provision by his will for his wife; she never renounced the will; and the question arises, whether, under these circumstances, *she is entitled to any portion of his personal estate? The phraseology of the statute is ambiguous; and I was at one time inclined to think, that no renunciation was necessary, where the will is silent as to the widow. If “the widow shall not be satisfied with the provision made for her by the will of her husband,” she is to declare she will not take or accept it, ‘ ‘and renounce all benefit she might claim” under the will. It would, at first view, seem to be a useless act, to refuse that which had not been given, to renounce a benefit where none was conferred. But, upon the supposition that no renunciation would be necessary in case the will contains no provision for the widow, the question still presents itself, to what would she be entitled? It is not a case of intestacy; the deceased has made a will disposing of the whole of his estate. Where a will is made, and the widow renounces, she is entitled to but a third of the slaves for life; but in case of intestacy, if the deceased leaves no child, the widow is entitled to a moiety. How would she take, where the will makes no provision for her? the moiety, as in case of intestacy? or the third, as in case of renunciation? If a moiety, as in case of intestacy', it would defeat the statute, which, in case the husband has made a will, intended, if the widow does not take under it, to give her one third only of the slaves, whether the husband left a child or not; and if she takes a third, then she must take under the statute, and must be bound by its provisions, which look to the case of renunciation alone, and declare that “thereupon, she shall be entitled” &c. recognizing but two *modes of providing for her, that prescribed by the will, and that which is to take place on her renunciation.

There seems to have been some contrariety of opinion, as to the extent of the husband’s power of disposing of his personalty at common law. According to Blackstone (2 Comm. 492,) by the ancient common law, a man’s goods were to be divided into three equal parts; of which one went to his heirs or lineal descendants, another to his wife, and the third was at his own disposal. And this he seems to think continued to be the law, as late as the reign of Charles I. If this were so, it was the law in force at the settlement of Virginia, and it might be argued was the common law brought over by the colonists. “This law” (Blackstone says) “is at present altered bjr imperceptible degrees, and the deceased may now by will bequeath the whole of his goods and chattels, though we cannot trace out when first this alteration begun.” But' Sir Edward Coke (Harg. Co. Litt. 176 b., note 6,) considers, that this was never the general law, but only obtained in particular places by special custom. The correctness of this opinion is controverted by Blackstone ; but in a note in 1 Wms. on Ex’ors 2, it is said, the learned discussion of Mr. Somner on this subject, which tends to confirm the correctness of Coke’s opinion, seemed to have escaped the notice of Blackstone. The question was discussed in Lightfoot’s ex’ors v. Colgin & ux., 5 Munf. 66, where Judge Brooke, after adverting to the difference between Coke and Blackstone, proceeds to shew, that when the legislature of Virginia first took up the subject, the common law was understood to be as laid down by Coke: that, at that day, Coke upon Littleton and the Institutes were the oracle of the law in this country, and the text books of lawyers and legislatures; that the law, as laid down by Coke, was in the mind of the legislature, when the acts of 1673 and 1705 were passed; and that those statutes were intended to restrain the husband, in the ^exercise of a preexisting right to dispose of his whole estate by will. If this view of Judge Brooke was correct (and it strikes me as being so), the husband, by the common law as understood in Virginia, could dispose of the whole of his personal property, as he still may in England, without making any provision for his wife: and we must look to our statutes, to ascertain what limitations have been imposed upon this general power, and what remedy has been provided for the widow.

The statute of 1673, 2 Hen. Stat. at large 303, was the first. It makes provision for the wife in case of intestacy; and then proceeds, “and in case the husband make a will, that he hath it in his power to devise more to his wife than what is above determined, but not less.” This statute provided no mode by which the widow was to assert her claim.

In 1705, another statute was passed, 3 Hen. Stat. at large 373. The fourth section provided, that when any person dies testate, leaving no more than two children, one third part of his estate, at least, should be given to his wife; if more than two children, she should have at least a child’s part; and if there were no children, not less than a moiety: and if any person should leave a will, wherein a lesser part of his estate should be given to the wife than was directed therein, such will, as to so much thereof as related to the wife, upon her petition to the court where the same should be proved, should be declared null and void; and thereupon she should be empowered to sue for and recover such part of her deceased husband’s estate, as was therein before directed to be given to her. This statute is silent as to the case where no provision has been made for the wife. What, in such case, under that statute, would have been her condition? The phrase lesser part would seem to imply, that the legislature only intended to provide for the case, where something, but less than she was entitled to, had been given. The literal meaning of the *phrase would require that construction as strongly, as the existing statute would seem to require that the will should contain some provision which the widow was to renounce. But if we adopt that construction, we must come to the conclusion, that the legislature intended to give her a remedy, where the will made some provision for her, but left her as at common law, when nothing was given. The common law (as then understood) authorized the husband to dispose of the whole estate. She would, therefore, by this construction, be in a worse condition when the will gave her nothing, than when it gave her something, but less than what she had a right to. The statute shews an intention to alter the then existing law; to limit the authority of the husband, and. afford a remedy to the widow. To effectuate that intention, the phrase used (lesser part) must be construed to extend to and include, not only the case of a partial, though an inadequate, provision, but the case also of a total omission to give any thing. If the last case was embraced in the scope of the statute, a petition to the court was the proper remedy, to declare the will .null and void as related to her. The fifth section of the statute seems to confirm this view; it provided that if the wife should die before distribution, her representatives should be empowered to sue for and recover so much of the estate as shall be given her by the will, and no more. This excludes the idea that she had any rights other than those given by the will,, or conferred upon her by the statute, or setting aside the will by petition. If any such right, other than that under the will, or acquired by renunciation, existed, it must have vested at her husband’s death, and would therefore have passed to her representatives, though she died before distribution: but the statute limited the recovery of her representatives, when she died before distribution, to the property given by the will, and no more.

^Another difficulty would occur, if she took in any other way than by renunciation: what would have been the extent of her claim? We have seen, that she was entitled to a third of the slaves in the case of a will when she renounced, whether the husband left a child or not; but in the case of intestacy, there being no child, she was entitled to a moiety: which rule would govern, where the will was silent, and she did not renounce? So, in regard to the other personal estate; by the common law, according to Blackstone, and supposing it to have been in force in Virginia, she took a third if a child, but a moiety if no child, was left. Under the statute of 1705, she was entitled to a child’s part only, where there were more than two children.

All these difficulties are obviated by holding, that in the case of testacy, there are but two classes of claims provided for, the claim under the will, and the claim by renunciation. I therefore think that notwithstanding the use of the word lesser in the statute of 1705, the legislature intended to apply the taw to the case where nothing was given, as well as to the case where .less was bequeathed than she was entitled to; and that it was incumbent on the widow in both cases to petition, and have the will declared null and void as to her, before she could be let into any thing.

Doubts arising whether the statute of 1705 had any relation to the disposition of slaves, and what right the widow had in the slavé property of her husband, in case of his dying testate, the statute of 1727, ch. 11, § 21, 4 Hen. Stat. at large, 228, provided, that when a widow was not satisfied with the provision made by her husband’s will, she might, within nine months after his death, renounce, and she should thereupon be entitled to one third of his slaves for life, and moreover to such share of his personal estate) as by the said act (the statute of 1705) was directed. This statute had two objects in view; 1. to remove the doubts as to slaves and *to define the widow’s interest; and 2. to furnish her a more convenient remedy; her renunciation in court or by deed, being substituted to the petition and judgment of the court declaring the will null and void as related to her. This statute did not operate upon her rights as to the personal property generally; they remained as defined by the statute of 1705. And if I am correct in supposing that, under that statute, a petition to declare the will null and void was necessary, whether it gave her less than she was entitled to, or nothing, the renunciation, substituted for the petition, by the statute of 1727, was equally necessary in both cases.

The statute of 1727 has been incorporated in the subsequent revisáis, and, with very slight alterations, is the law as it now stands in the code.

It seems to me', therefore, that as the widow made no renunciation, she can claim no part of the slaves or personal estate. This construction of the statute will be attended with the least inconvenience. A widow, for family considerations, may choose to acquiesce in such a disposition of her husband’s estate: it may have been made with her concurrence; or she may be satisfied with her dower, or with her own separate estate. If it be held, that no renunciation is necessary, where the will makes no provision for her, she, or after her death her representatives, may come at a distant day, and set up her claim; and the executor who may have delivered the property to the legatees, and the legatees who may have dealt with it as their own, may be called to account. By requiring the renunciation within the time prescribed, in all cases, this inconvenience is avoided: if it be not made within the time, her claim is at an end, and the legatees may rest in security.

The widow has no claim to dower of the land in which her husband died entitled only to an estate in remainder expectant on his mother’s life estate. To entitle a widow to dower, the husband must have been ^seized in fact or in law. “If the husband maketh a lease for life of certain lands reserving rent, and he taketh wife and dieth, the wife shall not be endowed; neither of the reversion (albeit, it is within the word tenements) because there was no seisin in deed or in law of the freehold; nor of the rent, because the husband had but a particular estate therein, and no fee simple.” Co. Litt. 32 a.; D’Arcy v. Blake, 2 Scho. & Lef. 387; Blow v. Maynard, 2 Leigh 29, 56.

BROOKE, J.

I concur with Judge Allen in the opinion, that the widow is not dowable of the real estate, in which her husband, during his life and at his death, was only entitled to the remainder in fee expectant on a life estate. But I differ with him on the other point. It is in my judgment quite clear, that the widow is entitled to the distributive share of the husband’s slaves and other personal estate, to which she would have been entitled, had he made some provision for her by his will, and she had renounced it. The 26th section of the statute of wills &c. authorizes the widow, if not satisfied with the provision made for her by the will of her husband, to declare, that she will not accept the provision made for her by the will, or any part thereof, and renounce all benefit which she might claim under it. I cannot see how, upon any fair construction of the-statute, she can be required to declare that she will not take the provision made for her by the will, when the will makes no provision for her, and to renounce all benefit under it, when no benefit is conferred; or why, if the widow, in this case, had gratuitously renounced the will, she would thereby have bettered her claim to the provision, which our laws intended to secure to her out of her husband’s personal estate, in spite of any testamentary disposition he might make of it.

My opinion in Bightfoot’s ex’or v. Colgin & ux. has been relied on, to establish the proposition, that, by the *common law, according to the authority of Coke in opposition to that of Blackstone, a husband had an absolute right to dispose of his whole personal estate, by deed or by will, and that neither his wife nor his children had any legal claim to a reasonable part, which could defeat his disposition : that, at any rate, the common law as laid down by Coke, was understood to be the true doctrine bj’ our jurists when the colonial legislature first acted on the subject, and was in the mind of the legislature when it enacted the statute of 1673 and 1705. I adhere to the opinion as to the principle of the common law, which I intimated in that case; but I adhere also to the opinion I expressed at the same time, as to the intent and effect of our statutes— that they were intended to restrain the husband in the exercise of his preexisting common law right to dispose of the whole estate by will.

The case of Lightfoot’s ex’or v. Colgin & ux., and the question it presented, were widely different from the case and the point now before us. There, a married man, by deeds absolute and irrevocable though merely voluntary, had settled his whole personal estate upon his children by a former marriage, making no provision out of it for his wife, with intent to defeat the claims of the wife to that portion of the estate to which she would have been entitled, if, without executing such deeds, he had died intestate, or had left a will which she might have renounced. It was held, that the wife acquired not, by the marriage, any right in the personal estate of her husband, that impaired his absolute right to dispose thereof by deed in his lifetime, since the statutes only restrained him from cutting her off by will, from a suitable provision out of the estate he should be possessed of, that is, entitled to, at his death. It was contended, that the deeds were a fraud upon the wife; that they were, in their nature, testamentary instruments, a will in ^disguise, in truth a will. The question was, whether the deeds were, in effect, a will or no? But supposing them to be a will, there was not a suggestion in the argument at the bar, or in the opinions of the court, that her renunciation of such will was necessary to entitle her to the provision allowed her in such case by la.w. Here, we have the case of a husband dying entitled to personal estate, and leaving a will, in which he has made no provision whatever for his wife, and bequeathed the whole to his nephews and nieces; and the question is, whether she was bound to renounce such a will, bound to declare that she would not take under the will what was not given her by it, in order to entitle her to the provision which the law makes for her?

In my opinion, the policy, intent and effect, of all the several statutes on the subject, from the first to the last, was to restrain the husband from making any disposition of his personal estate by will, which should deprive the wife of what the law deemed a reasonable provision for her. The statute of 1673 simply imposed such restraint upon him. The statute of 170S again simply imposed a like restraint upon the husband, to dispose by will, of more than particular portions of his personal estate (varied according to the state of his family) to any other person than his wife; and then gave her a summary remedy by petition to the court of probat, to have the will declared void as to her, in case her husband thereby left her a lesser part of his estate. The remedy was provided for her, only in case the will gave her a lesser part, because she might be content with that, though the law declared it inadequate: no remedy was provided for her, where the husband’s will made no provision for her, because it was not presumable she could be content without some provision; and, in that case, without applying to the court by petition to correct the injustice, she was entitled to claim of the executor '"'the distributive share allowed her by law. The statute of 1727 defined the widow’s rights in the slave property her husband died possessed of; and instead of putting her to her petition to the court of probat, to avoid his will, where she was not satisfied with the provision thereby made for her, this statute enabled her to redress herself, by a declaration within nine months, that she would not accept the legacy or legacies bequeathed to her by the will, and a renunciation of all benefit under it. Here again, she was required to make such declaration and renunciation, only in case the will made some provision for her, with which it might be presumed she was satisfied unless she declared her dissatisfaction; and her declaration and renunciation was required to be made within nine months, in order that the husband’s executor might know, within a reasonable time, whether he should, as to her, administer the estate according to the will, or according to the statute: but no such declaration and renunciation of the will was required of her when it made no provision at all for her. The statute of 1785 (1 Rev. Code, ch. 104, § 26), was dictated by the same policy, and (with some variations in the details not necessary to be noticed) provides for the same case for which the former statutes provided; imposes a like restraint upon the husband’s power of disposition of his personal estate by will, so as to secure to the wife an adequate provision; and requires the widow’s renunciation of the will, in case, and only in case, some provision is made for her.

I think the decree of the circuit superior court in this case was right in the principle, that the widow was entitled to her distributive share of her husband’s personal estate, though it might require some correction in the details.

STANAED, J., concurred in the opinion of Brooke, J., and CABI5LL, J., concurred with Allen, J.

*TUCKE¡R, P.

I am of opinion, that the decree is erroneous in all the particulars complained of by the appellants : but there are fatal objections, in principle, to the appellee’s claims, which render an examination of errors in the details of the decree unnecessary.

It is objected, and properly, that the widow had no title to dower in the land of her husband, because he had no seisin whereof she could be endowed. He had but a remainder after a life estate, which had not fallen in at this death ; and of such an estate a woman cannot be endowed.

It is moreover objected, as to the slaves and personal estate, that the wife is not entitled to distribution thereof, as the husband has devised them a.11 away, and she has never renounced the will as required by the statute. And this is, I think, undeniable. By the common law (according to the better opinion) the husband’s power of disposing of his personal estate bv will, was unrestricted by any rights on the part of his wife. The restriction existing with us, grows out of the clause of the statute, 1 Rev. Code, ch. 104, § 26. A widow must bring herself within this statute, or her husband’s will and power over his estate are absolute. Now, the statute prescribes the mode in which a widow may renounce her husband’s will; and proceeds to declare, that a widow not making- her renunciation accordingly, “shall have no more of her husband’s slaves and personal estate than are given her by the will.” In this case, nothing was given her. Therefore, she takes nothing under the will. But she has not renounced the will, in the manner prescribed by the statute: by the terms of the statute, then, she is expressly excluded from any portion of her husband’s estate. The same consequence would follow even if the statute did not contain those strong negative words. For as there is no other restraint upon the husband’s power than that created by this clause, she must bring herself within the clause by renouncing, *or it cannot apply to the case. It is said indeed, that the clause does not contemplate the case of a will in which there is no provision whatever for the wife, but applies only to the case of a partial provision. But if this be admitted — if the clause does not apply, then there is.no limitation upon the husband’s power of disposition. Under any view of the case the widow is entitled to nothing.

This point has never been settled by this court;* but it arose in the case of Rayan v. Rayan in the chancery court of Winchester, in 1824; and I decided it according to the opinion I have now expressed, and there was no appeal taken. The reasons for the opinion then given, would be found in Tuck. Comm. book 2, ch. 27; Wills p. 391-2; (Edi. of 1831 ).„

Decree reversed, and bill dismissed.  