I was heretofore requested to construe the last will and testament of the late Andrew Smith. My conclusions were expressed in an opinion reported in 8 N.J. Super. 424, 72 A.2d 911 (Ch. 1950). I resolved that the testator's sister Mathilde Marie Smith was entitled to the income of the trust and in the event that the income was insufficient to maintain her in her usual station in life, the trustee was clothed with authority to withdraw and pay to her suitable monthly installments from the corpus , and that the testator died intestate as to any remainder of the corpus.
The statement of a few supplementary facts will reveal the subject of the interesting question now presented for decision.
The will was executed on October 11, 1921, at which time the testator was unmarried. On September 2, 1935, he married. He died on March 18, 1949, seized in fee simple of a residential property. He had no issue, but his widow survives.
The widow by means of a counterclaim against the plaintiff executrix-trustee, the life tenant in possession, and all other occupants of the premises, has sought the assignment of dower in the real estate and damages for its tardy admeasurement, and now prays for summary judgment.
In the circumstances of this case the widow receives the estate in remainder in the realty as the "statutory heir"
pursuant to R.S. 3:3-4, N.J.S.A. , as am. L. 1941, c. 153, p. 508, § 1.
The widow's counterclaim is resisted by the contention that there was a merger of her dower in the remainder of the corpus which she takes by way of the statute.
The proposition is of the latest fashion. It sprouts from the relatively recent legislation which has qualifiedly made a surviving spouse an "heir" of the deceased spouse. Cf. Reese v. Stires , 87 N.J. Eq. 32, 103 A. 679 (Ch. 1917).
Traditionally the law has had its ardent attachments and its inveterate antipathies. Since very early times dower has been highly esteemed in the law. The origin of dower is so ancient that neither Coke nor Blackstone were able to trace it. Blackstone's observations are recorded in 2 Bl. Com. 129. We know that dower was recognized in Magna Charta in 1215 and that as early as 1641 Lord Bacon was heard to speak of "life, liberty and dower" as a "common byword." Bacon, Uses, p. 37.
I need not labor the point because it is to be acknowledged that in our jurisdiction dower continues to have the protective auspices of the law.
The principle that neither husband nor wife will be excluded from rights in the property of the other springing from the marital relation except by words that leave no doubt of the intention so to do, has become proverbial in our Chancery decisions. Freeland v. Mandeville , 28 N.J. Eq. 559 (Ch. 1877); Cushing v. Blake , 30 N.J. Eq. 689 (E. & A. 1879); Radley v. Radley , 70 N.J. Eq. 248, 62 A. 195 (Ch. 1905); Shannon v. Watt , 87 N.J. Eq. 142, 99 A. 114 (Ch. 1916); ...