The opinion
The will has been interpreted so as to effectuate the intent of the testator (as ascertained by the court upon due consideration of all provisions of the will), insofar as the ascertained testamentary intent can be made effective without violating the statutory dower rights of the widow or the controlling provisions of law.
The statute defines dower in personalty and provides that such dower "claim shall have precedence over all others, and the said share shall be free from all liability for the debts of the decedent." Sec. 5494 (3630) C.G.L. Thus the statute refers to dower as a "claim" and as a "share." The estate tax upon "any legacy or share in the distribution of the estate," Sec. 1342 (19) 1936 Supp. to C.G.L., includes "the dower of a widow who has dissented from her deceased husband's will." See Henderson v. Usher, decided at this term.
The holding in this case that expense of administration of the decedent's estate after his death and prior to the allotment of dower should be paid from the gross estate, does not warrant an assumption as suggested by a petition for rehearing, that all expenses that may be incurred by executors in litigation that unduly hinders or delays the allotment of dower to the widow, should be paid from the assets of the estate before dower is allotted.
Rehearing denied.
WHITFIELD, C.J., and BROWN and DAVIS, J.J., concur.
ELLIS, P.J., and TERRELL, and BUFORD, J.J. , concur in the opinion and judgment. *Page 901