
    Hanna v. Palmer.
    1. Where under the statute a widow renounces the will of her deceased husband, and elects to take one-half of the whole estate of the deceased, she is entitled to such remaining moiety after the discharge of the debts against the estate.
    3. All persons whose rights are to be affected by an order, judgment or decree of a court are entitled to notice, actual or constructive, of the pendency of the proceedings against them.
    
      Error to County Court of Arapahoe County.
    
    The bill of exceptions in this case sets forth the petition of Margaret Palmer, the defendant in error, substantially to the effect “that she had heretofore renounced under the will of her deceased husband, and elected to take, under the statute, one-half the real and personal estate of the deceased, and that she asks the court now to make an order to divide the personal estate of the deceased, and to direct the plaintiff in error, administrator with the will annexed of said deceased, to pay over in cash to the petitioner (defendant in error) one-half of said personal estate; and further requests the court to so modify the order heretofore made, to wit, on the 17th day of Pebruary, A. D. 1880, authorizing the said John E. Hanna to sell two hundred shares of stock in the Oity National Bank of Denver, so as not to authorize him to sell petitioner’s portion thereof, that is, one hundred shares, but to direct him to turn the same over to petitioner.
    “ Avers that there are no debts owing by said estate requiring the sale of her portion of said estate, but if so, she stands ready to pay over her one-half thereof.
    “The order of February 17th, referred to in the petition, is in substance that on the petition of said administrator, requesting an order directing him to sell two hundred shares of the capital stock of the City National Bank of Denver, and upon his showing, to the court’s satisfaction, that it will be necessary so to do, in order to pay the debts allowed against the estate, as well as the legacies in the will of the decedent mentioned, it was therefore ordered that he be allowed to sell the same at private sale for the best price obtainable, and report to the court. The bill of exceptions further states that the administrator (plaintiff in error) appeared by counsel and resisted the granting of the order sought by the aforesaid. petition of the defendant in error, and on the hearing it appeared, and the court so found, that the deceased, Frank Palmer, died testate, leaving a will by which, after providing for the payment of debts, etc., he bequeathed to his widow (the defendant in error) property to the amount of $32,500; made also bequests of specific legacies to several parties, amounting in the aggregate to about $10,000, and the balance of his estate he bequeathed to his brothers, Chester W. and Joseph Palmer, and that the estate was inventoried at $80,000.
    “Further, that the widow had renounced under the will and elected to take under the statute; that the estate was not fully administered; that beside the legacies, there remained unpaid debts to the amount of about $5,000 already allowed; that there was a claim of about $8,000 preferred by the widow (defendant in error), disallowed in the county court, but still pending and undetermined in the supreme court, with probable expenses of administration amounting to about $1,000, and that these debts could not be paid without a sale of part of this property.
    “It further appeared that, after turning over half the stock, as prayed for in the petition, the other half of the personal estate would be sufficient to pay the debts allowed and the expenses of administration, and that if the widow (defendant in error) was allowed one-ha] f of the whole estate, real and personal, of the deceased, without charging any portion of the debts or expenses against her half, and all the debts, legacies and expenses were paid out of the other half of the real and personal estate of the deceased, such half would be entirely adequate therefor.
    “It further appeared that the said residuary legatees'were residents of the state of New York, and were not before the court in this proceeding. On this state of facts, the petitioner (defendant in error) claimed that she took half of the entire estate of the deceased under the statute, free and clear of all debts and claims against said estate and expenses of administration, and that all claims allowed, or to be allowed, against the estate, and all expenses of administration, should be borne by and paid out of the other half of the estate, and consequently she' was entitled to have half of this stock turned over to her.
    “ The administrator contended that the widow could only be entitled to half the estate after payment of debts, etc., and as this personalty would be required to pay claims, debts, etc., no order to turn over to the widow should be made; also, that the residuary legatees, being vitally interested in this order asked for, the same should in no event be made, except in a proceeding to which-they were parties, or on final distribution of the estate.”
    The bill of exceptions further states that the court-found in favor of the petitioner, directed that only one hundred shares of the stock should be sold, and that the other one hundred shares should be turned over to the widow as her absolute property, and that no part of the debts or claims against the estate should be paid by or charged against her, to which finding and order the plaintiff in error duly excepted, etc. The formal order of court, already referred to, finds that, upon the widow’s renouncing the provisions of the will, she then became entitled to one-half the whole estate, real and personal, under sec. 5, ch. 64, p. 611-, General Laws of Colorado. Then follows copy of will and election of widow to take under statute instead of under the will, a certified copy of which was made part of the record by stipulation.
    The question of practice referred to in the opinion of the court was “ whether or not the county court, sitting as a court of probate, before the final settlement of an estate, while debts remain unpaid, and the condition of the estate is uncertain, should, upon an ex parte application, without notice to heirs, devisees, etc., make an order for distribution, and settle by its order important questions affecting the rights of such heirs, devisees, etc., without having the parties materially interested brought before the court.”
    Messrs. Benedict and Phelps, for plaintiff in error.
    Messrs. Charles and Dillon, for defendant in error.
   Stone, J.

Where under the statute a widow renounces the will of her deceased husband, and elects to take one-half of the whole estate of the deceased, is she entitled to such moiety clear of the debts of the deceased, or does she take only the half of the estate remaining discharged of the debts ?

This is the principal question raised in this case, and which involves merely the meaning of a statute that does not appear to be so obscure as to be regarded of doubtful import.

Section 5 of the act relating to the property rights of married women (General Laws, sec. 1751) is as follows:

■“In case any married man shall hereafter deprive his wife of over one-half his property by will, it shall be optional with such married woman, after the death of her husband, to accept the conditions of such will, or one-half of his whole estate, both real and personal.”

On behalf of the defendant in error, it is contended that this statute containing no words expressly subjecting such widow’s half to the debts of the estate, was enacted and intended to confer a right upon the wife in lieu of dower, and inasmuch as the dower right which formerly existed was not subject to the debts of the deceased husband, the widow, since dower has been abolished, takes under this statute one-half the whole estate exempt from liabilities in like manner as though such portion were assigned as dower.

We do not think this contention of counsel is well founded.

The .law in question has been upon our statute books over twenty years. It was enacted in 1861, cotemporaneously with the old dower law, both acts being approved the same day, and the two existed side by side for seven years, so that it cannot well be said that- the one was enacted in lieu of the other. The dower act, which bore little resemblance in character to common law dower, was repealed altogether by the revision of 1868. The statute involved in this case has no relation to dower.

In the Eevised Statutes and in the General Laws it is published under the the title “Married Women;” but as adopted the act is entitled “ An act to protect the rights of married women.” The proper meaning of the statute, touching the point in controversy, must be deduced from a consideration of the whole law bearing upon the subject — the married woman’s act, the statute of descents and distributions, and the chapter on wills and the administration of estates. The statute of descents and distributions provides for an allowance to the widow of certain specific, articles of personal property, or money equal to the value of such property, which portion of the estate is set apart to her, and is expressly declared -by the statute to be in no case subject to the debts of the deceased. In addition to this, under the statutory rule of descent, the widow of a husband dying intestate, where there are. children, is entitled to one-half and the children to the other half of the whole estate, subject to the debts of the deceased. From a consideration of these provisions together with those relating to the administration of estates, it is clear that section 5 of the married woman’s act was intended simply to prevent the husband, by will, from providing any less for his surviving wife than the law of descent provided for her. .When she renounces the will, she takes half the estate upon the same footing as the children take the other half; upon the same footing as both take if there is no will.

If she elects to take under the will, it will not be pretended that her legacy is exempt from the debts of the testator; and upon renouncing the will, she takes her legal moiety, not . as dower, nor in lieu of dower, but in lieu of the provisions of the will, and impliedly subject to the same liabilities respecting the debts of the deceased.

In short, the evident and- sole object and intent of the section in question plainly is to provide that the widow, after the decease of her husband, shall be placed in no worse condition by his will than if he had died intestate.

Upon this view of the law, we must hold that the court below erred in decreeing that the defendant in error was, upon her renunciation of the will, entitled to one-half of all the estate as her absolute property, free and clear of all debts and claims against the estate.

As to. the question of practice raised by plaintiff in error, there does not seem to be much of a question left- to determine, under our conclusions upon the main question..

So far as the question relates to notice, we think the proceedings in this case call for the application of no-other rule than the general one which pervades the whole field of jurisprudence, — that all persons whose rights are to be affected by an order, judgment or decree of a court are entitled to notice, actual or constructive, of' the pendency of the proceedings against them. Long, Adm’r, v. Thompson, 60 Ill. 29.

The decree and order of the court below touching the-matter in controversy is reversed, and the cause remaiided. for further proceedings in conformity herewith.

Reversed.  