Bowen v. Bowen et al.
1. Where dower is harred by a legal jointure, an election, under section 43 of the wills act, is not necessai'y to entitle the widow to take the provisions made for her in her husband’s will; but where the bar is by an equitable jointure or settlement merely, qucsre.
2. The year within which the election under said section must be made begins to run from the date of the service of a citation, and where the widow, appearing in open court without service of a citation, declines to make her election, she does not thereby waive the issuing and service of a citation, or estop herself from denying that a citation had been issued and served.
3. Whether a widow can take the provisions made for her in the will of her-husband, and also under an ante-nuptial contract, whereby her right of dower is barred, depends on the intention of the testator.
4. Where, by ante-nuptial settlement, a sum of money is secured to the wife, to be paid after the husband’s death, and, by a subsequent will, the husband directs all his just debts of every kind to be first paid, and makes provision for the support of his wife during widowhood, with a declaration that the intent and meaning of the testator was to give to-his wife the provision made for her in his will, she may claim the provision in the will, and also that made for her in the settlement.
Appeal. Reserved in the District Court of Marion county.
The original action was brought by Thomas C. Bowen, administrator, with will annexed, of Ozias Bowen, against Emma M. Bowen, his widow, and other legatees and devisees under the will, to obtain the advice and instruction of the court as to his duties in the premises, and especially as to the rights of Emma M. Bowen, widow.
Previous to the marriage of the testator and his surviving wife, whose name was Emma M. Wilson, the following contract was made and entered into by them :
“This agreement, made this 20th day of April, 1871, between Ozias Bowen, of Marion county, Ohio, and Emma M. Wilson, of Branch county, in the State of Michigan, witnesseth:
*165“ That whereas, the said Bowen and the said Emma M. do contemplate a marriage with each other; and whereas, the said Bowen, in consideration thereof, is desirous of settling upon and securing to said Emma M. a reasonable and just competency out of his estate, to be held by her in lieu of dower in his lands, and in place of any homestead, year’s allowance, or other share in or distribution of any part of his personal estate, moneys, or effects to the said Emma M., as widow, survivor, or heir of him, the said Bowen:
“ Now, know ye, that I, the said Ozias Bowen, have paid unto the said Emma M. Wilson the sum of two thousand dollars, and to carry out the purposes of this settlement have executed and delivered to the said Emma M. my promissory note for eighteen thousand dollars, to be paid to her within thirty days after my decease (if she shall so long live) ; and by this instrument I acknowledge myself •bound to pay unto her the said sum of $18,000, and declare that the same shall operate upon and be a valid first lien upon all of my real and personal estate, moneys, and effects wherever situated.
“ And I, the said Emma M. Wilson, in consideration of the premises, and of two thousand dollars, now paid to me, by the said Bowen, and of the further sum of eighteen thousand dollars to be paid to me, out of the estate of said Bowen, as above stated, do hereby release, and forever quit claim unto the said Bowen, all the right, title and claim of every kind, which I now have, or which, by virtue of my said marriage, I may acquire, or become entitled to claim or to hold. And, also, for like consideration, I release all of my right, title, and interest to the moneys and effects' and personal property of the said Bowen, which he may now or hereafter possess, and as well as any right or claim . thereto which I may now have or that I may acquire by means of my said marriage.
“ To have and to hold said lands, personal property, moneys, and effects, wheresoever situated, unto the said Bowen and to his heirs and assigns forever, free and wholly dis*166charged from, any claim of mine, as wife, widow, or heir oí said Bowen, arising under any law of the State of Ohio,, or of Michigan, or of any other state or territory whatsoever, or under what is known as the common law.
“ This instrument to take effect and become operative,, to all intents and purposes, according to the true object and meaning of the parties hereto, from and after the marriage of said pai’ties.
“ In testimony whereof, the said Ozias Bowen and the said Emma M. "Wilson have hereto set their hands and seals, this 20th day of April, 1871.
“ Signed, sealed, and acknowl-^ edged in presence of [
M. B. "Wilson, [
Ozias Bowen, ' [seal.]
Emma M. "Wilson, [seal.] ”
Jno. S. Wilson.
The “ promissory note ” referred to in the foregoing agreement was as follows:
“ Marion 0., April 19,1871.
“ For value received, I promise to pay Emma M. Wilson eighteen thousand dollars with interest from and after my decease. No part of the principal is payable until thirty days after my death. This note is given by me and accepted by the payee, upon an ante-nuptial settlement made by me and the payee, in relation to which a deed, signed and sealed by us has this day been duly executed, to which reference-is made for more certainty.
“ $18,000. O. Bowen.” .
Immediately after the execution of the above contract,, the contemplated marriage was consummated.
On the 17th of September, 1871, Ozias Bowen, the husband, executed his last will and testament, of which the following is a copy :
“ In the name of the Benevolent Father of all—
“I, Ozias Bowen, of Marion, Ohio, do make and publish this my last will and testament:
“ Item, 1. I direct that all my just debts of every kind, "be first paid.
*167“ Item, 2. Having always made prompt payment of all collections, and all moneys that have in any wise, come to my hands, I direct and require my executrix hereinafter named to interpose the statute of limitation as a defense for the purpose of preventing fraud.
“ Item 3. I give to my present wife, Emma Bowen, the use of my house, and the thirty-three acres of land on which the same is situated, and which makes my present homestead, together with all the furniture and books therein contained: Also, all my carriages, horses, and chattels used by me on this the place which constitutes my present home: Also, the use of and benefit of fifty thousand dollars; to be held and enjoyed by her, together with said real estate, and personal property, so long as she shall remain my widow. If this allowance shall prove insufficient to pay the taxes and repairs of said premises and the support of said wife, then I give to her the use and benefit of ten thousand dollars more, to be held during her widow-hood as aforesaid.
“ Item 4. I give to my grandson, Corwin Harper, the sum of four thousand dollars, to be paid to him when he shall arrive at the age of twenty-one-years which sum I direct to be invested, as soon as my estate shall be settled, in government stocks or bonds, for his use until he shall arrive at the age aforesaid.
“ Item. 5. I give to my son, Thomas C. Bowen, in fee simple, my law-office building, and the lot on which the same is situated, together with all the books and furniture therein contained. Also, the sum of four thousand dollars.
“ Item 6. I give to my son, Laurin D. Bowen, the sum of six thousand dollars, to be deducted from the amount I now hold against him as due to me. The sum so due to me being fifteen thousand dollars, the balance of his note for said sum so due me, with the interest thereon, must be paid to my estate.
“ Item 7. I give to my son, Marcellus Bowen, the sum of six thousand dollars.
“ Item 8. I give to my son, Alburtus Bowen, the sum of six thousand dollars.
*168“ Item 9. I give to my son, Orville Bowen, the sum of six thousand dollars, to be paid to him when he shall arrive at the age of twenty-one years, and which sum I direct to be invested for his use in government bonds, and so remain until he shall arrive at the age aforesaid, and then to be paid to him.
“ Item 10. I give to my daughter, Flora P. Bowen, the sum of six thousand dollars.
“ I have made advances to some extent to my son, Thomas O. Bowen, my son, Marcellus Bowen, and my son, Alburtus Bowmn, which will appear on my books in part and in part by notes; and it is my will, and I hereby direct my executrix to deduct such advances so made by me to my said sons as shall be found charged on my said books, or be evidenced by note.
“ Item 11. I direct that so much of my estate as is not hereinbefore disposed of shall, at the end of three years after the taking effect of this my will, be by my executrix distributed equally to and among my children and grandchild above named.
“Item 12. I hereby direct that at the death of my said wife, Emma Bowen, or when she shall cease to be my widow, the estate hereinbefore devised and set apart for her use be, as soon as the same can be done without sacrifice, reduced to money, and the amount arising therefrom, together with the sums hereinbefore set apart to raise an income for my said wife, be disposed of as follows :
“ First. There shall be paid therefrom to my said daughter, Flora P. Bowen, the sum of two thousand dollars.
“ Second. There shall be paid therefrom to my son, Marcellus Bowen, the sum of two thousand dollars.
“ Third. There shall be paid therefrom to the Presbyterian Church, of Marion, Ohio, the sum of two thousand dollars.
“And that the balance thereof that shall then remain, I hereby direct to be equally distributed to and among my children and grandson above named. For the purpose of carrying into effect this, the 18th provision, I hereby ap*169point Philip Dumbaugh as said trustee ; and in the event of his death or declining to accept my trust, I hereby appoint John R. Garvenou as trustee as aforesaid.
“ I hereby declare it to be my intent and meaning in Item 3 of this my will to give to my said wife, Emma Bowen, the income arising from the said sums of fifty thousand dollars and ten thousand dollars, and to give her the use of the house and land therein mentioned during her widowhood, as therein stated.
“ I hereby constitute and appoint my wife, Emma Bowen, •executrix of this my last will and testament, and direct that my son, Thomas 0. Bowen, aid her in the discharge of her duties as such executrix; and I hereby revoke all former wills by me made, and I declare it to be my will that my said wife, Emma Bowen, shall not be required to give bail for the discharge of her duties as executrix. I hereby appoint Cooper K. Watson as attorney, to act with my son, Thomas C. Bowen, in the settlement of my estate.
“ In testimony whereof, I have hereunto set my hand and seal, this 17th day of September,-a. d. 1871.
“ 0. Bowen, [seal.] ”
Shortly after the execution of the will, the testator died* .and the will was duly probated on the 28th of September, 1871, and letters of administration cum testamento annexo were issued to the plaintiff.
On the 30th of September, the following entry was made in the records of the probate court:
In the matter of the Estate) of Ozias Bowen, deceased, j
M Marion coimtv Ohio September 30, 1871.
This day came into open court Emma Bowen, widow of Ozias Bowen, deceased, who, being asked by the court whether she would now elect to take under the will of said Bowen, or under the provisions of the statute, and being informed that she had one year from this date in which to make her election, she thereupon declined to make her election at this time. J... R. Garberson, Probate Judge.
On the 6th of February, 1873, the widow elected to take *170under the will, and thereupon the following entry was recorded in the probate coui’t:
In the matter of the Last Will and) Testament of Ozias Bowen, de- V ceased. j
In Probate Court, Marion county, 0., February, 6,1873.
Be it remembered, that on the 6th day of February, a. d. 1873, personally appeai’ed in said court Emma M. Bowen, widow of said Ozias Bowen, who, being fully infox’med in the premises, elects to take under the will of her said husband, and to accept the provisions made for her therein, and requests that her said election be entered on the minutes of this court; which is done accordingly.
J. R. Garberson, Probate Judge.
No other entry was ever made in relation to the election of the widow, and no other testimony was offered on the point, except, it is admitted, that ever since the death of her husband, she has claimed her rights under the ante-nuptial contract.
The cause was tided in the court of common pleas, where a decree in her favor, as to her claim under the will, was rendered, but her claim under the contract was denied. On appeal to the district court, the cause was submitted upon the pleadings (from which the foregoing facts ai’e abstx-acted), and the following agreed statement:
1. That the note and contract copied in the petition were found, after the death of said 0. Bowen, in his safe, at his law office, and immediately after his death were demanded by said Emma, and were soon after delivered to her by said administrator, as stated in the petition.
2. That the said administrator has paid to said Emma M. the sums of money following, and has taken her receipts therefor:
October 9, 1871.................................... $500
January 17, 1872................................. 100
Januaxy 22,1872......... 900
April 3, 1872....................................... 200
May 1, 1872......................................... 300
October 11, 1873,.................................. 2,500
*171Eor all said sums, except the last, receipts were taken, to be refunded to said administrator out of, or deducted from,, the first or any money coming to said Emma M., or to be paid to her out of said estate, as widow, heir, distributee, or otherwise; and the last was indorsed on and receipted for on said note and ante-nuptial agreement. The administrator has also paid the taxes on all the property of the estate, and has charged the amount in his account rendered to the probate court.
3. The ages of the several children and the grandchild of the said Ozias Bowen, were as follows :
Thomas C...,..................................... 31 years.
Laurin ........................................... 27 “
Marcellus ........................................ 25 “
Albertus.......................................... 24 “
Flora.............................................. 20 “
Orville............................................. 16 “
Corwin Harper.................................. 9 “
None- of them had property of their own, except one, and he owed the testator largely. Three of them — Laurin, Albertus, and Marcellus — were married. Laurin was in business at Cleveland.
4. The indebtedness' of the estate amounted to $10,000. Thomas Dye had sued Bowen in his lifetime, on account of matters growing out of the administration of an assignment, in which, by amendment since his death, he claims-$150,000 — no part of which is admitted to be due him.
5. The personal estate of the testator was returned by the appraisers, at $133,000, which included some bad accounts, and some personal property included in the third clause of tbe will as given during widowhood to the said Emma M. Exclusive of them, the fair value of these assets was $120,000. There is real estate belonging to tbe estate, besides that devised in said clause of the will, and that devised to T. C. Bowen, worth about $9,000. The real estate included in that clause was worth $30,000.
6. Said O. Bowen’s age at the time of his marriage was-sixty-six years, and the said Emma M. twenty-six years.
*1727. The property of said 0. Bowen was acquired previous to his marriage with the said Emma M.
C. K. Watson,
Attorney for Petitioners and Heirs.
Scott & Harris and R. P. Ranney,
For defendant, Emma M. Bowen.
Upon this record, the cause was reserved for decision in this court.
W. Z. Davis, for plaintiff:
1. The ante-nuptial contract is not a debt, nor a covenant in consideration of marriage; but is a contract in view of approaching marriage, and in consideration of mutual covenants, on the part of the husband to pay, and on the part of the wife to accept, a sum of money in lieu of dower, etc. Goldsmith v. Goldsmith, 1 Swanston, 219; Gilliam v. Chancellor, 43 Miss. 437; Smiley v. Smiley, 18 Ohio St. 543; Gibson v. Gibson, 15 Mass. 111.
2. If not a debt what is it ?
It partakes of the character of a jointure, but is not a legal jointure. 1 Swan & C. 518; 1 Wash. Real Prop. 264. A legal jointure is, however, a provision. “The words jointure or provision are synonymous terms.” Per Lord Hardwicke in Harvey v. Harvey, 1 Atkins, 561; Peachy on Mar. Set. 356-358; Atherby on Mar. Set. 509. And it implies a reasonable and competent livelihood. See 1 Wash. Real Prop. 265. And it is a provision in lieu of dower. 1 Wash. Real Prop. 264; Atherby Mar. Set. 504, 508.
This contract possesses those qualities of a legal jointure, and such a contract will, in equity, be made effective as a jointure. 1 Wash. Real Prop. 268, § 19; Stilley v. Folger, 14 Ohio, 650.
But an equitable jointure is a contract for a provision in bar of dower, and hence is subject to all the rules applicable to' contracts. 1 Wash, on Real Prop. 267, § 17; Peachy on Mar. Set. 356, 357, 358.
If, therefore, it be not purely voluntary, but is a contract *173•upon a consideration, if the consideration fails the contract fails. Vide Hasting v. Dickinson et ux., 7 Mass. 153, and Gibson v. Gibson et al., 15 Mass. 106 passim.
So that, if the husband die intestate, the wife’s inchoate right of dower, homestead, etc., is vested eo instanti, and in the same instant the contract becomes an equitable bar. But if the husband die leaving a will containing a provision in favor of the wife, the wife’s right of dower, etc., is not vested, but is suspended until her election, and meantime the ante-nuptial contract remains dormant. If she elects, to take under the statute, the contract then becomes effective. If she elects to take under the will, the contract falls, because she does not, as she agreed, accept tbe money in lieu of dower.
3. The question of satisfaction is to be determined from the intention of the testator, rather than from any artificial rules concerning difference in nature, amount, time of payment, or beneficial character of the devise or bequest on the one hand, and the iointure on the other. Atherby on Mar. Set. 539.
4. Cases of satisfaction and of performance must not be confounded. In cases of satisfaction the question is: Was tbe thing done intended as a substitute for the thing covenanted? and the right of election is incident. ' In cases of performance the question is: Has that identical act which the party contracted to do been done ? and there is no election. 1 Swanston, 219; Atherby on Mar. Set. 546.
5. A ease for election arises whenever the intention of the donor is either expressed or implied that the second gift shall be effectual only in the event of the donee declining the first, and the substance of the gifts combined is an option.. Dillon v. Parker, 1 Swanston, 394, note.
6. We affirm, and we regard it as a very important point in the present case, that the rule that a legacy is prima facie a bounty is abrogated by the statute in Ohio, so far as it may apply to legacies in favor of the wife of the testator.
We go further than that, and maintain that by force of the statute, it is, in Ohio, a presumtion of law that a legacy *174to the wife of the testator is prima fade given in lieu of her legal rights and claims upon the testator’s estate; and that .a testator’s widow can take nothing under her husband’s will without an election under the statute.
The court is referred to the 43d and 44th sections of the .act relating to wills. 2 Swan & Critch. 1623.
The statute is distinct, unqualified, and imperative. In all cases, unless it plainly appear from the will that the provision is in addition to dower, there must be an election. In no other way can the widow acquire title to what is •given under her husband’s will. Stilley v. Folger, 14 Ohio, 610. There are cases which hold that under certain circumstances the widow will be estopped to deny that she has elected. Thompson v. Hoop, 6 Ohio St. 480; Stockton v. Wolley, 20 Ohio St. 184. But these cases do not imply that, as against an heir or co-devisee, the widow may claim under the will, without an election, as required by the statute. And see Peachy on Mar. Set. 367, citing Gibson v. Gibson, 1 Drew, 51; Broughton v. Errington, 7 Brown’s Parl. Cas. 12; Strohan v. Sutton, 3 Ves. Jr. 252.
7. The 43d section of the statute which we have been considering is a statute of limitations. 2 Disney (Cin. S. C.), 284, 285; and the widow failing to elect within the statute (which is one year) is plainly remitted to such rights as she may have independent of the will — in this case her contract.
The citation will be presumed to have been issued and .served. Davis v. Davis, 11 Ohio St. 388.
S. Burke, also for the plaintiff:
In the view I take of this case, it seems to me quite unnecessary to spend much time in the consideration of .authorities of other nations and of other states where they have no statute similar to our wills act, §§ 43, 44. It will not be denied that the intention of the testator is to govern in all cases in the interpretation of his will. Whenever the court can ascertain what was the intention of the testator the court will give effect to that intention. That *175intention is to be gathered, not from the will alone, nor by one rule of interpretation rather than another, but it is to. be sought in the language of the will, aided by such extraneous facts and circumstances as will put the court as near as possible in the position occupied by the testator at the time he made the will; and looking at this will, and standing in the position of the testator, it will be observed that the testator desired to provide for the widow liberally, munificently, while she remained his widow, and that he desired that his children should inherit the residue of his estate; and I think we may properly add in this case, as bearing upon the intention of the testator, that he was a man of learning and intelligence, and that he was, from his long experience at the bar and upon the bench, familiar with our statute of wills, with the rights of his widow, and with the rights of his children.
It is clearly established that the ante-nuptial contract took the place of, and was substituted, by the agreement of the parties, for the provision made by statute for a widow. Now, what we contend for is, that as the contract was, by the agreement of the parties, substituted for the provision made for a widow by statute, that when a will is afterward made that the widow is put to the same election between the will and the thing substituted for the provision made by the statute, that she would have been required to make between the statute and the will. It seems to us, without going into the question as to whether the amount agreed to be paid by the ante-nuptial contract as a substitute for the amount that the widow would be entitled to by the statute, creates a debt, technically considered, or not; that when, such a contract having been made, the husband afterward makes a will by which he makes ample provision for the support of the wife, that she is necessarily put to her election between the contract and the will, and that she clearly is not entitled to both. The authorities cited in the brief of my associate very clearly and very fully sustain this point.
1. It is very clear, under our statute, that a widow can *176take nothing under the will of her husband without an election upon her part to take under the will. In other words, it is very clear under the statutes of Ohio that whatever a widow may take under the will of her husband must be taken by her free choice, by her accepting the provision made for her in the will. Now, we think, in this case, that the record clearly shows that Mrs. Bowen was cited upon the 30th of September, 1871, to make her election. The gentleman upon the other side claimed that the record does not show affirmatively that the citation issued. We hold this is unnecessary. The record does not show that it did not issue, and there is no proof in the case showing that it did not issue. The record clearly shows that she was in court upon that business; that the probate judge explained to her what her rights were, and called upon her to make her election. He informed her, however, that she had one year from that time within which to make it. The probate judge clearly understood his duty and the law, and, taking the record as it reads, it appears with sufficient clearness that she was cited into court for the purpose of making her election. She failed to do so within a year from this time, and we claim by such failure she lost the right to make an election and to take anything under the will.
2. The construction of the will and ante-nuptial contract, which we contend for, is not only consistent with reason and sound in principle, but it is also sustained by adjudicated eases. The case of Williams v. Gray, 1 Cald. 104, is clearly in point. Indeed, it covers every point in the case, and, if followed, is decisive of it. See, also, 2 Story’s Eq. 1075 to 1077; Bouvier Hie. 460.
In principle the case of portions to children, where there is a contract obligation to give them a portion, is like the case at bar. In all such eases the courts lean against double portions, and uniformly hold that legacies, unless the contrary expressly appear, operate as a payment or satisfaction of the obligation to give a portion. See 2 Williams *177on Executors, 1410, and eases in note; 2 Story’s Eq. Jur. 1109; Roper on Legacies, 68; 2 Redfield on Wills, 194.
The above construction is also maintained by numerous cases upon the subject of elections. 2 Williams on Ex’rs, 1547 to 1559; lb. 1600; 83 Grov. 387; 13 Ohio St. 95; 2 Redfield on Wills, 352, 354, 857; 3 Redfield, 388; 37 Yt. 414; 3 Ohio, 5; 21 Pa. St. 376; 31 Barb. 413; 29 Mo. 408.
C. K. Watson, also for plaintiff'.
S. R. Harris, for Mrs. Bowen :
We claim that Mrs. Bowen is entitled to the legacy left, her by the will, in addition to the promissory note ; that she is a creditor of the testator for the note mentioned in the ante-nuptial agreement; and that she is also his legatee for an annual income from his estate during her life and widowhood. One she has by contract; the other by a subsequent devise of the testator.
The testator owed her the note as a debt, and he chose,, in addition, to bequeath to her by his will an annuity contingent upon her life and widowhood, to keep up taxes- and repairs of the homestead and support herself.
One she gets of right by contract as a creditor ; the other' she gets as an object of the testator’s bounty — one being; absolute and the other uncertain and contingent; no presumption can arise that the legacy satisfies the debt. Forsight v. Grant, 1 Vesey, Jr., 298; Richardson v. Elphistone, 2 Vesey, Jr., 463; Folson v. Collins, 4 Vesey, Jr., 482;: Stocten v. Stocten, 4 Simons, 152 ; Story’s Eq. Jur., §§ 1122, 1123 ; Cloud v. Clinkenbeard, 8 B. Mon. 398 ; Ford v. Gooding, 9 Barb. 377 ; Owens v. Simpson, 5 Rich Eq. 420.
Her election to take under the will does not estop her from setting up her claims against the estate of every other character than as widow. Her election affects her rights as widow, and nothing else. Gardner v. Comm’rs, 16 Ohio St. 366, 367.
Mrs. Bowen being a creditor of the estate, we claim the legacy in this case is not a satisfaction of the debt.
*178We concede the rule.to be that a legacy given to a creditor, equal to or greater than the debt, is, in general, deemed a satisfaction of it; but the rule has so many exceptions that it is regarded with disfavor by the courts. Chancey's case, 1 P. Wms. 409, note by Cox; Strong v. Williams, 12 Mass. 392 ; Smith v. Smith, 1 Allen, 130.
In Williams v. Crary, 4 Wend. 449, Savage, C. J., says: “ There are so many exceptions that the rule on this subject seems to be that a legacy shall not be deemed a satisfaction of a debt unless it appears to have been the intention of the testator that it should so operate. See also Clark v. Bogardus, 12 Wend. 68 ; Mulheran v. Gillespie, 12 Wend. 351; Eaton v. Benton, 2 Hill, 579.
Where a legacy is given upon a contingency, it has never “been held to be a satisfaction, for in these cases it must be a satisfaction at the time, and there must be no uncertainty whether the legacy will take effect or not. Spinks v. Robins, 2. Atk. 493.
It does not apply to an open and running account. Rawlings v. Powell, 1 P. Wms. 299. Nor to an extinguish-ment of a negotiable security, such as a bill of exchange. Carrr. Eastbrooke, 3 Ves. 561, 564.
In the present case there is no pecuniary legacy to op•erate as a set-off against the pecuniary liability. On the •contrary, Judge Bowen’s will contains an express direction to pay all the testator’s debts. This rebuts the presumption that the legacy to his wife was intended as a satisfaction. Ford v. Gooding, 9 Barb. 371; Cole v. Willard, 4 Jur. 11. S. 988; 8 B. Mon. 398 ; Ford v. Gooding, 9 Barb. 377; Berry v. Berry, 6 Ir. Oh. 497 ; 2 Strange, 1217.
One counsel claimed in the court below that the ante-nuptial agreement constituted a jointure.
The answer to that is brief:
The first requisite of a jointure is thus stated in Hilliard’s Law Dictionary, 513 : “ The provisions for the wife must take effect in possession or profit immediately after the husband’s death.”
“First, it is necessary that the jointure should take *179place immediatlely after the death of the husband.” Peachy on Marriage and Family Settlement, 358.
The thirty days’ clause in the ante-nuptial agreement destroys it as a jointure. Suppose, however, that, by virtue of Mrs. Bowen’s agreement to relinquish dower, the instrument could be called an equitable jointure, what follows?
She thereby relinquished her right of dower, but not her right to receive a legacy. A jointure, legal or equitable, is a bar to dower alone.
That the widow may have a jointure and legacy both, is too well settled to require argument. Sugden’s Essay on the Real Property Statutes, 257; Peachy on Marriage and Family Settlements, 363, and cases cited; Creswell v. Byron, 3 Br. C. C. by Belt, 362, cited by Lord St. Leonards, in Creag v. Creag, 8 Ir. Eq. 70; also see Pickering, v. Lord Stamford, 3 Ves. 332; Knight v. Galthorpe, 1 Vern. 347; Berry v. Berry, 6 Ir. Ch. 497; Peachy on Mar. Set. 501, and cases there cited; 1 Roper on Legacies, 374 (4th ed.); 2 Story’s Eq. Jur. 529, 530.
B. P. Ranney, argued the case orally for Mrs. Bowen.
McIlvaine, J.
The questions presented for decision in this case relate to the right of the widow in the estate of the testator. She claims as a creditor under the ante-nuptial agreement, and also as devisee and legatee under the will. The residuary legatees deny her right under both the contract and the will, and contend that she is entitled to take under the contract only. They contend, in the first place, that there was no election, under the statute, by the widow to take under the will.
Before this point need be determined, another of some •difficulty arises, namely, Did this case come within the statute? The provision of the statute (section 43 of the wills act, as amended April 2,1848, S. & C. 1623), is as follows:
“ (43.) Sec. XLIII. If any provision be made for a widow *180in the will of her husband, it shall be the duty of the probate judge, forthwith after the probate of such will, to-issue a citation to said widow to appear and make her election, whether she will take such provision or be endowed of the lands of her said husband, and said election shall be made within one year from the date of the service of the citation aforesaid; but she shall not be entitled to both, unless it plainly appears by the will to have been the intention that she should have such provision in addition to-her dower.”
And section 44 provides, “ and if the widow shall fail to make such election she shall retain her dower,” etc.
By the terms of the ante-nuptial contract, the right of the widow to dower, in the real estate of the testator, as well as her distributive share in the personal estate, was barred. This proposition is not disputed. Her election under the statute, to be endowed, would, therefore, have-been fruitless; she could not thus have avoided the effect of her valid and subsisting ante-nuptial contract.
It is only as between the right to be endowed and the right under her husband’s will, however, that the statute requires the widow to make an election. There is no election required, under the statute, as between the provisions of a will and the rights of the widow under a settlement or jointure. Nor does it make any difference whether the settlement or jointure be in bar of dower or not. We are not authorized to extend the presumption which this statute creates beyond its terms. The presumption under the statute is, that provisions in a will in favor of the testator’s wife are in lieu of dower and her distributive share, unless an intention to the contrary plainly appears in the will. Whether or not any other interest or claim, which a widow may have in or against the estate of her husband, is satisfied by provisions in her favor in his will, must be determined, not by the rule of the statute, but upon principles of reason and right which exist entirely independent of the statute.
But, inasmuch as the ante-nuptial contract before us does *181not constitute a legal or statutory jointure (section 2 of the act relating to dower, S. & C. 518, also see Grogan v. Garrison, 27 Ohio St. 50), and is not, therefore, a bar to dower by virtue of any statutory provision, the question arises whether an election under the statute should not have been made between the provisions in the will and her technical right of dower, although such right of dower was subject to be defeated under the contract as an equitable jointure.
While we are inclined to the opinion • that, under such circumstances, such election was not necessary to protect the widow in her claim under the wTill, we do not find it necessary to decide the point, as we are all satisfied that her •election to take under the will was duly made in accordance with the statute.
The objection made against the validity of the election to take under the will, as recorded in the probate court, of the date of February 6,1873, is that it was not made within the time prescribed by the statute. The time fixed by the -statute is, “ within one year from the date of the service •of the citation ” for her appearance. No citation was ever served upon her, and, therefore, time did not begin to run against her right to elect. It is claimed, however, that the widow is estopped from denying the service of a citation, by the entry found in the record of the probate court of the date of September 30, 1871. The claim is that it must be inferred from this entry, either that the citation was issued and served previous to that date, or that the widow waived the issuing and service thereof.
If the propriety and absolute verity of this entry were conceded, there is nothing in it that raises the slightest suspicion that a citation had been issued and served. And it would certainly be violent .to presume, from the fact that the widow came into open court, and, upon being asked, declined to make an election at that time, that she thereby waived the issuing and service of a citation. Certainly nothing short of an express waiver would suffice, and we think the entry does not tend to prove such waiver.
We are, therefore, unanimous in the opinion that Mrs. *182Bowen is entitled to the provisions made for her in the will of her late husband.
The next question is: being entitled to take under the will of her husband, can the widow also claim under the-ante-nuptial contract? This question must be determined by ascertaining the intention of the testator ? By her election to take under the will, as recorded in the probate-court, she became legally barred of her technical i-ight to-dower and to a distributive share in the personalty, as, in equity, she was already barred by her ante-nuptial contract. But further than this, such election has no bearing upon the question now under consideration, unless it shall appear that her right to both provisions is contrary to the intention of the testator. It was competent for him to make the provisions for her in the will additional to those secured to her in the contract, or it was competent for him to tender the provisions of the will as satisfaction of, or substitute for, those of the contract, and thus put her to an election between them. If the testator intended that she should have both provisions, there is no case for an election ; if he intended by the will to satisfy the contract, her election to take under the will excludes her from all benefit of the contract, for the plain reason that she can not claim under the will and also in contravention of it.
What, then, was the testator’s intention ? Did he intend that her right under the will should be in addition to her right under the contract, or did he intend that the former should be a substitute for and satisfaction of the latter ?
It is contended on behalf of the residuary legatees, that this case is analogous to one of double portions, and that the law will presume that the testator intended by his will to satisfy the widow’s claim under the contract. It is quite true that where a parent or a person in loco parentis, being bound by a promise to make provision for a child, as upon a marriage settlement, gives a legacy to such child, the law presumes that the legacy was intended as an ademption of the promise, because it would be unnatural and unjust to other children to regard it as a double por*183tion. This presumed intention, however, may be repelled by other clauses in the will, or by extrinsic circumstances.
But the case at bar is not in perfect analogy with cases of portions from either a natural or assumed parent. The provisions made for the intended wife were not gratuitous on the part of the testator. He paid and agreed to pay an agreed sum for a valuable consideration. That consideration moved from the promisee. It consisted in her engagement to marry him, and to remit all claims against his estate as widow, in the event that she should survive him. The sum so agreed to be paid, upon the consummation of the marriage, became a debt, for the payment of which the estate of the debtor, the testator, is charged.
I am aware that in the case of Wathen v. Smith, 4 Madd. 325, it was held by Sir John Leach that such a claim was not a debt within the meaning of a testator who directed the payment of all his just debts. But afterward, in the case of Cole v. Willard, 25 Beavan, 568, the authority of Wathen v. Smith was impugned by Romily, M. R., who said: “I do not concur with Sir John Leach in his observation in Wathen v. Smith, that the testator must not be understood to include under the word debt his liability on a bond or covenant made on his marriage, although to be discharged after his decease.”
And in a recent case, Pinchin v. Simms, 30 Beavan, 119, where, in a marriage settlement, the use of £5,000 was secured to the wife, and afterward the husband bequeathed the use of £10,000 to her upon the same conditions, the Master of the Rolls said: “The testator not only bequeathed the £10,000 to different trustees from those of the settlement, but he directs them ‘ to pay and discharge all his just debts’ The £5,000 was one of them. I am clearly of opinion, on the form of this will, that the testator intended his widow to enjoy both provisions, and I wall make a declaration to that effect.”
But it is contended on behalf of the residuary legatees, that the law presumes, where a debtor gives a legacy to his creditor, that a satisfaction of the debt is intended. It is *184true, that the authorities recognize such a rule, but the courts uniformly have held that slight circumstances will take a case out of the rule. Indeed, the presumption against double portions is only prima facie; but while the courts lean toward this presumption, they are exceedingly jealous of the presumption that a legacy is a satisfaction of a debt. To illustrate : While a legacy of less or uncertain value, will be regarded as a satisfaction of a portion pro tanto, or in full, if it turns out to be sufficient, such circumstance, where the legacy is to a creditor will take the case entirely out of the rule.
The distinction here taken is very clearly stated by the Lord Chancellor Cottenham, in Thynne v. Glengall, 2 House of Lords Cases, 158. “ However similar the two cases may at first sight appear to be, the rules of equity, as applicable to each, are absolutely opposed, the one to the other. Equity leans against legacies being taken in satisfaction of a debt, but- leans in favor of a provision in. a will being in satisfaction of a portion by contract, feeling the great improbability of & parent intending a double portion for one child, to the prejudice generally, as in the present case, of other children. In the case of debt, therefore, small circumstances of difference between the debt and the legacy are held to negative the presumption of satisfaction; whereas, in cases of portions, small circumstances are disregarded. So, in the case of debt, a smaller legacy is not held to be a satisfaction of part of the larger debt; but in case of portions, it may be satisfaction pro tanto. • It has been decided that in the case of a debt, a gift of the whole or part of the residue can not be considered as satisfaction, because, it is said, that the amount being uncertain, it may prove to be less than the debt.”
In support of these general views, we may also cite Chancey’s case, 2 Leading Cases in Equity, and cases therein cited, also, Peachey’s Marriage Settlements, and cases there cited.
How, then, stands the case before us ? The claim of Mrs. Bowen, uuder the contract, was a debt of the testator, *185though uot payable during his life time. By his will, he directed that “all his just debts of every kind be first paid.” We must assume that this claim of his wife was in the testator’s mind when he executed the will, hence, this direction affords a strong, if not conclusive indication, that he intended she should have both payment of her claim under the settlement and the provision made for her in the will. Some cases, it is true, hold that a mere direction to pay debts will not prevent the legacy satisfying the debt. Edmonds v. Law, 3 Kay & J. 318 ; Rowe v. Rowe, 2 De G. & Sm. 297. All the cases, I believe, agree that a direction to pay debts and legacies will suffice to prevent a satisfaction; while others, perhaps more numerous, hold that a direction to pay debts alone will have that effect. Chancey’s ease, 1 P. Williams, 410; Cole v. Willard, 25 Beavan, 568; 30 Beavan, 119. But this case is stronger, for here the direction is, that all my just debts of every kind, be first paid.
It would indeed be hazardous to say that the testator, when he gave this direction, did not intend to include the debt of his wife, which was, by far, the largest outstanding and undisputed debt against him or his estate.
But we need not turn the case on this point alone, as all the authorities agree, that a simple direction to pay debts is an ingredient to be considered with other circumstances in determining the intention of the testator.
The claim of the wife under the settlement was fixed and known to be $18,000, payable in thirty days after the testator’s decease. The provision for her in the will was the use of certain moneys and property during widowhood, subject to be reduced by taxation and repairs. The former was an absolute property, the latter a temporary use, depending, at the farthest, upon the duration of her life, and subject to be defeated by her marriage.
Under the rules above stated this uncertainty in the value of the provisions in the will would, alone, rebut the presumption that they were intended as a satisfaction of the <lebt. But the real purpose of the testator is apparent on the face of the will, and that was to provide for the cur*186rent expenses of his wife during widowhood. After giving her the use of his mansion and certain other items of property, he gives her the use and benefit of $50,000, all of which was limited to her widowhood, and then provides r “ If this allowance shall prove insufficient to pay taxes- and repairs of the premises and the support of my wifer then I give to her the use of $10,000 more, to be held during her widowhood as aforesaid.” This declared object of the testator’s bounty appears to us to be inconsistent with an intention to discharge an absolute indebtedness. It looks-more like an inducement to celibacy than the payment of a “'just debt.”
And, again, in the third subdivision of the twelfth item of the will the testator says :
- “ I hereby declare it to be my intent and meaning in item 3-of this my will to give to my said wife, Emma Bowen, the income arising from the said sums of fifty thousand dollars and ten thousand dollars, and to give her the use of the house and land therein mentioned during her widowhood, as therein stated.”
This declaration certainly was not intended to deprive his-wife of the use of the furniture, and books, and cari’iages, •.and horses, and chattels used by the testator on the place,, although these things are not here mentioned.
The third item in the will did not leave in the least obscurity the extent of the interest which the wife might take-under its provisions.- Why, then, this carefully penned declaration, unless it was to declare the provisions made for the wife to be a gift, a bounty from his large estate, and not a payment of a debt previously incurred. Except for the ante-nuptial contract, the wife would have been entitled to-forty thousand dollars, and upwards, on distribution of his-personal estate, and dower in about $40,000 worth of real property — an interest vastly in excess of the amount limited to her under the contract. Now, with full knowledge-of these facts, and in contemplation of approaching death, the testator declares the provisions for his wife in the will *187to be a gift: “ I hereby declare it to be my true intent aud meaning in item 8 of this my will to give to my said wife,” etc.
The correctness of this construction of the clause under consideration becomes more apparent, when taken in connection with other clauses, which show that the provisions for the widow, under the will, have no correspondence, either in character or amount, to her claim under the contract, hut were intended to meet her current expenses during widowhood; and especially with that clause in which the testator directs that all his “just debts of every kind be first paidthat is, before any bequest should become a charge on his estate; so that, upon the face of the will itself, it indubitably appears that the testator intended his widow to have the benefit of her contract as well as the provisions of his will.
Some other questions on the agreed statement of facts, have been raised by counsel for the residuary legatees, but we find nothing in them to change the result above indicated.
A decree -will, therefore, be entered (all the judges concurring) in favor of defendant, Emma M. Bowen, on hex-claims under the provisions of the will, and also on hex-claim under the ante-nuptial contract.
Judgment accordingly.