OPEN FORUM

THE WIDOW'S SHARE

By

EDWARD W. FAITH, Mobile, Alabama

In the recent case of Herring vs. Elliott, 118 So. 391, Judge Bouldin appears to suggest a revision of the statutes relating to the widow's dower and distributive share in her deceased husband's estate. If Herring vs. Elliott is not overruled, then the statutes clearly need revising. The case involved the application of Section 7429 of the Code, which provides, "If any woman having a separate estate survive her husband and such separate estate, ***, is equal to, or greater in value than her dower interest and distributive share in her husband's estate, *** she shall not be entitled to dower, or distribution of, her husband's estate." The facts in the case, as stated in the opinion, were that "the estate of decedent consisted of personalty only. There was no real estate from which his widow was dowable. She owned a separate estate in personalty," which the court found to be worth about three times the value of the estate of the deceased husband. The widow contended that although her separate estate exceeded that of her husband, she was not precluded from sharing in the estate, because her husband owned no land from which she could obtain dower. Judge Bouldin then says, "Speaking of this section (7429) and accompanying section 7430 in Guice v. Guice, 150 Ala. 552, 43 So. 199, this court said: "These sections do not contemplate a case where there is no possible dower interest, nor a case where there is no personalty to be distributed. But they do contemplate all cases where there is present a surviving widow, an estate out of which dower may be taken and personalty distributed, and the widow possesses a separate estate. The absence of any one or more of these elements defeats the application of these statutes.' We do not see any good reason why the law should be so written as not to apply to a case of the class before us. But Guice vs. Guice, supra, has stood unreversed for 20 years. Meantime the statutes have been twice recodified without change. A law of

descent is a law of property. The rule above quoted must be now considered a rule of property. Accordingly, we hold the widow entitled to share in the distribution."

This is not the proper time, nor the proper place, to question the correctness of Judge Bouldin's interpretation of what is manifestly merely a dictum in Guice vs. Guice; but if the profession should accept Judge Bouldin's construction of Section 7429, as being correct, then this is a proper time and a proper place to point out the urgent necessity of a revision of the Statute by the Legislature.

In considering a revision of the Statute prescribing the effect of the widow's separate estate upon her right to participate in her deceased husband's estate, it is necessary to view the Law in relation to the Statute of Descents and Distribution, and also in relation of Sections 10593 to 10596 of the Code giving the widow a right to dissent from her husband's will.

Perhaps the best way to point out the practical effect of Herring vs. Elliott, is to give illustrations.

"A", a resident of Alabama, dies intestate, leaving a widow, and no children, or their descendants, but leaving as his only heir his father. "A" has an estate consisting of an insignificant vacant lot worth $100.00, and personal property worth $100,000.00. The widow has a seperate estate equal to that of her husband, so she receives from her husband's estate nothing, and the father receives $100,000.00. On the other hand, "B", also a resident of Alabama, dies intestate, leaving a widow, and no children or their descendants, but leaving as his heir his father. "B" owns no real estate whatever, but has personal property worth $100,000.00. The widow has an estate in her own right valued at three times the value of her husband's estate. In this case "B's" father gets nothing, and the widow gets everything. Why? Because (under authority of Herring vs. Elliott) "B" owned no land in which it was possible for the widow to obtain dower? Surely it is not the policy of the law to make such a discrimination, because of the lack of ownership of but an insignificant piece of land.

Herring vs. Elliott was dealing with an estate where the husband died intestate, yet the principles therein decided must

hold true where the decedent left a will, from which the widow dissents under the provisions of the code.

Resorting to another illustration as the best means of showing the full effect of our present law, suppose "C", a resident of Alabama, dies leaving a widow, but no children, or their descendants, and leaving as his only heir, his father. "C" has an estate of $100,000.00, consisting entirely of personal property. Shortly prior to his death, "C's" wife ran away with another man, and thereupon "C" filed suit for divorce, and executed a will giving all of his property to his father. Before the divorce was granted "C" dies, the will is admitted to probate, and the widow (the "unfaithful wife"), files her dissent from her husband's will. What does the widow get? Section 10593 gives the widow the right to dissent from the will and "take her dower in the lands and such portion of the personal estate as she would have been entitled to in case of intestacy." Assume that the widow has an estate in her own right equal to, or greater than that left by her husband, then under Herring vs. Elliott she gets everything, to the entire exclusion of the father as legatee under the will, or as heir, and her misconduct does not operate to defeat her claim. Nolan vs. Dorr, 133 Ala. 259, 31 So., 969. But we might go one step further. Suppose that after "C's" death, the widow takes no steps to dissent from the will, but within twelve months from "C's" death, the widow dies leaving a will by which she gives all of her property to the man for whom she deserted her legal husband, and this will is probated and letters testamentary issue to "the other man in the case." Then under Section 10596 of the Code (a very peculiar Statute, enacted originally in 1884, and not yet construed by the Supreme Court) this "other man" as Executor of Mrs. "C's" estate is given the right within twelve months from "C's" death to file a dissent from "C's" will in behalf of Mrs. "C's" estate, and thus under these sections, the "other man" might get everything. Under such circumstances "C's" father might well say "would that my son had owned a little land, or else that Herring v. Elliott had not been decided." And perhaps the Spirit of the departed husband will say "Alas! Alas! What could I do? He stole my wife, and seed-corn, too."

If we take Herring v. Elliott as a "sign-post," pointing out where the above statutes may lead us, then the Bar might well say: "We wonder, rather than admire."

MARRIAGE AND DIVORCE

By

J. A. HUEY, Enterprise, Alabama

I have read many articles on the subject of divorce written by men and women of eminence in their respective walks of life. In reading and studying these articles, which were written by ministers, judges, lawyers, social workers and others, I was surprised that very few of them recommended or advocated any changes in our present day divorce laws. Most of these writers limited their articles to statistics showing the rapid increase in divorce rates and recommending better home and church training. This is splendid as far as it goes, but we are in dire need of some wholesome legislation on the subject.

It is my purpose to give a few statistics and comparative statistics showing the rapid increase of divorce rates in America, three or four observations for illustrative purposes and recommend certain changes in our marriage and divorce laws, which I believe, if enacted into law, will not only serve as a remedy for the increasing divorce evil, but will result in higher standards of manhood and womanhood in America.

The following figures are taken from a pamphlet entitled "Divorce and Marriage" issued by the Bureau of Census, Washington, D. C., during the year 1927. These statistics include only divorces granted and marriages solemnized in the United States.

During the year 1887 the number of divorces granted were 27,919. During the year 1896 there were 42,937 divorces, being an increase of approximately 54 per cent over the year 1887. During the year 1906 there were 72,062 divorces reported, being an increase of about 68 per cent over the year 1896. During the year 1916 there were 112,036 divorces reported. being an increase of approximately 55 1-2 per cent over the year 1906. During the year

1926 there were 180,853 divorces reported, being an increase of approximately 61 per cent over the year 1916.

The population of the United States having increased rapidly during this period, it is but natural that the percentage of divorces has increased. But let us see if the marriages during this period have increased in proportion to the divorces. The following figures are taken from the same pamphlet.

During the year 1887 there were 483,068 marriages reported, During the year 1896 there were 613,873 marriages reported. During the year 1906 there were 853,290. During the year 1916 there were 1,040,684 and during the year 1926 there were 1,202,574 marriages reported.

It can readily be seen then that the increased percentage in divorce rates far exceeds the increased percentage in marriages during this period. To illustrate: During the year 1887 for every one hundred marriages performed there were 5.5 divorces reported. During the year 1896 for every 100 marriages there were 6.8 divorces reported. During the year 1906 for every one hundred marriages there were 10.6 divorces. During the year 1926 for every 100 marriages there were the shocking number of 15 divorces reported, being almost three times as many divorces for each 100 marriages as there were during the year 1887.

ILLUSTRATIONS AND RECOMMENDATIONS

I once knew a very beautiful young girl, a member of a splendid family, who went riding one evening with a young man whom she had known but a few days. While riding they met some friends, who jestingly suggested that they marry, followed by the usual dare in such cases. This girl, being of immature years, full of life and one who enjoyed excitement, readily accepted the dare and was married immediately. Only a day or two passed before the sheriff arrived and arrested the young man she had married on a bigamy charge, it developing that he had another wife and one or two children in a neighboring state. The marriage was annulled, but nevertheless this girl must go through life with the divorce blight upon her character. If it had not been possible for this couple to have so quickly procured a marriage