
    Stokes v. O'Fallon, executor, and Stokes.
    1. A testator dying, and leaving a widow, of whom-no mention is made in the withheld, as to the widow to have died intestate.
    2. The widows of alien residents, who die in this State, are entitled to dower, s. The debts of the deceased must be first paid, before the allotment of dower.
    4. The personal estate of the deceased, is the primary fund for the payment of hicdebts.
    APPEAL from St. Louis Circuit Court-
   M’Gikic, C. X,

delivered the opinion of the Court.

Tiiis was a hill in Chancery for dower, for a discovery, and for marshalling assets, &c.

Tiie record shows, that the complainant was the lawful wife of William Stokes, who was ail alien. That in 1818, Stokes took the preparatory steps towards naturalization. That in 1823, Stokes died, possessed of considerable real and personal estate. That before his death, he made his last will and testament, devising and bequeathing his whole estate, real and personal, to O’Fallon in trust, for the benefit of Ann Stokes, his illegitimate daughter. That Stokes left no lawful issue. That the personal estate is absorbed in the payment of debts, and the principal part of the real estate also. It also appears that the complainant, at the time of Stokes’ death, was an alien.

The complainant claims, first, to be endowed of one half of the personal estate of wh ich the testator was owner at the time of his death — before payment of debts; and that inasmuch as this fund has been used up in the payment of debts, that the remaining lands may be charged with that half, and sold or applied to raise an equivalent, to the use of the widow absolutely.

The answer admits the chief things charged in the bill, and denies the right of the complainant to have any share of the personal property, in exclusion to the payment of debts out of that fund; and insists that an alien wife is not entitled to be endowed. The Circuit Court, on this state .of things, dismissed the complainant’s bill, with costs.

The error assigned, embraces the Whole matter on the record. I will first consider' the question: — whether, by the laws of this State, as they stood at the time of Stokes’ death, in September, 1823, an alien widow could be endowed ? And then I will con-* aider the question : — ‘whether a widow’s share of the personality, where the estate is solvent, is to be deducted from the whole assets as they stood at the time of the death (33) of an intestate ? or Whether that share shall be deducted from the remaining as* sets after the payment of debts ?

In this ease, before I proceed to tbs'main qtiestion,. I will notice the fact, that in the will, Stokes is silent as to the widow, which silence by the act of the Legislature-of 1st December, 1821, concerning wills and testaments,, according to my reading of the 4th section of that act, declares, that when, any person shall, make a will, and-die, leaving a widow, &c., making no mention, in. the will, of the widow 5 that as to her, he shall be deemed to die intestate. Sodhat soTar as respects this widow’s right to-he endowed, I will consider it as a case of intestacy..

I will consider the question whether an alien widow can he endowed. By the act of 6th December, 1820; aliens residing in anf part of the If. 9. or- Territories, Who. shall have made a declaration of their intention of becoming citizens of the U. S., by taking' the necessary oath in due-form of law, are declared capable of acquiring and holding real estate in the same manner, and to the-same extent, that citizens of the U. S-., can do: This act establishes the capacity of the complainant's husband to hold a thing'oüt of which a citizen’s Widow Would be endowed.

I think it is clear from a review of the several acts of the Legislature; passed' at different periods of time, that the Legislature never intended to exclude alien widows from dowerit is true, that by the common law, an alien could not be endowed, and the-reason given for it, is, because all alien could not hold land. The act passed 19tb. January, 1816, says, the-common law of England, which is of a general' nature, and not contrary to the Jaws of this Territory, shall he the rule of decision — so that there can be- no doubt that at common law, the alien Widow coüld not be endowed, unless that part of it which prohibits it was contrary to the then laws of Missouri.

The most recent act in force, on the subject of descents of real' estate, at tile time of Stokes’ death', is, the act to’ direct descents and distributions, passed 11th January, 1822; which says, that henceforth, when any person, having title to real estate, shall die intestate, his- estate shall descend' and he distributed, after the- payment of debts; in a certain manner, deducting the widow’s right of doWer, if there be one. This-saving, in the act, does no more than save the widow’s dower from descending to the heir, which it otherwise would have dofie, hut the saving is a general one, and it (34) seems to me, if the Legislature did' not intend ail widows to h¡gve dower, whether aliens or not, this was a most proper occasion for them to have said so; for,, in this case, the whole suhjectof descents Was before them. The expressions, de-ducting the widow’s right of doWer, if there he one,” without talcing notice of the-fact, that there will often, in such cases, be alien widows, is strong evidence they did not intend to exclude them. The next act to be noticed, is that of 25th Jan., 1817, Which says, that the estates of persons dying intestate, shall descend and be distributed in the following manner, to Wit: — If the intestate shall leave- a widow and a child or children, the doWer of such widow shall be one-third, &c., and then in the same section, the act says, and any person dying intestate, leaving a widow and no> lawful issue, the widow shall' be- entitled, as her doWer, to one equal half of the estate of which her husband died seized, after his just debts are paid, the personal pro=*-perty absolutely, and half the lands and slaves, for her life ; upon this act, it is conceived, the widow’s right to dower mainly depends; and this is the law the Legislature had their eye on, in the act of descents, of 1822, wherein they save the widow’s dower from the operation of that act by an express saving.

Upon this view of the several laws, I will remark, that when this act, 1817, was passed, the law makers must have known that the common law was adopted, and that by it, all widows could not be endowed: yet they use general words, clearly including all widows, as well aliens as others. This general act is subsequent to the introduction of the common law, and is broad enough to suppress the common law rule. If alien widows are to be excluded from the benefit of the general words so as to be excluded from dower, under the common law rule, it should only take place to answer some great end of State or national policy. I think neither reason nor State policy requires these general words to be narrowed. The state policy of England in refusing aliens to hold land, never did exist in the United States, nor did it ever exist here; at the veiy time this act of 1817 passed, it could not have been a fact unknown to the Legislature, that there were in the country many alien wives; and I cannot suppose they had any narrowness of feeling on the subject. Furthermore, before the act of 1817, the act of 1815 contained, with respect to dower, about the same expressions ; so that I think I may safely say, before the common law rule came here, aliens might have dower, and if this be true, then it must be clear that the statute (35) law was not impaired by the introduction of the common law. For the introducing act introduces no new rules of common law, contrary to the laws of the country. At the time this dower was cast, aliens might hold lands by the'express terms of the statute of 1822; this woman, however, does not come within the terms of the statute; but this act goes far to prove, that whenever the reason of the law ceases, the law ceases also. The Legislature' seeing, perhaps, that there existed no political reason here to prevent aliens resident from holding land,'have thought it the best way to do away all doubts.

The reason in England forbidding foreigners to hold land, was a rule founded on the jealousy the King had against being over-run by strangers ; but in this Stale, the policy is to invite them, by every mode likely to be effective. This point being for the complainant, I will consider the next point, which is : shall the widow be endowed of one half the personality before the debts are paid, or shall she only have the half of the personal assets remaining after the debts are paid? This point is ruled for the.defendant by the 4th section of the act, directing the probate of wills, &c., passed January, 1815; it is declared, that all debts owing by any person, at the time of his decease, shall be paid by his or her executor or administrator, reserving first to widows, in all cases under this act, their right of dower. The 9th section of the same act says : the remaining part of any land) slaves, and personal estate, after the widow’s right of dower, as hereinbefore provided, and after the payment of all just debts, shall descend and be divided, &e. If this law had been in force at the time of Stokes’ death, the complainant would prevail, — but, about two years after, the Legislature again took up the subject, and occupied the same identical ground with a new and contrary enactment. See the act of 25th January, 1817, entitled, an act supplementary to, and amendatory of the several acts, directing the probate of wills, &c.; the first section of which, provides that the estate of persons dying intestate, shall descend and be distributed in the manner following, to wit: If there shall be a widow and child or children, the dower of such widow shall be one-third part p¡f said estate, after all just debts are paid, and in the same section, in speaking of a widow where there is no children, the Same language is used: after the debts are paid, the widow shall be endowed. This view of the subject satisfies me that the debts must first be paid. I am also clear, that the personality is, or was, at that time (36) the primary fund for the payment of debts, and that the real estate cannot, in a case like this, be charged to raise a fund to the use of the widow. The decree is re* versed, and remanded for further proceeding.  