# Kennedy v. Nedrow

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SUPREME COURT of Pennʃylvania:
KENNEDY verʃus NEDROW, et UX. et al.
T
“ band, on the 12th of Auguʃt, 1767, made his will, and thereby
“ devifed a moiety of 500 acres of land to his wife, the demandant,
“ in fee ; which devife was in lieu of dower:” And, 2dly, they
“pleaded, “ That the demandant had fued out a writ of partition
“ againft the tenants for making partition of the faid 500 acres of
“ land, and had recovered, &c.” To thefe pleas the demandant replied, the tenants demurred, the Demandant joined in demurrer, and iffues.
On the firʃt plea a cafe was ftated in fubftance as follows:– “ That on the 12th of Auguʃt, 1767, Richard Johnʃon made his laft will and teftament, and therein bequeathed and devifed in hac verba;
“ Imprimis, I give and bequeath unto my loving wife, Ann Johnʃon,
"all that my lot of ground, fituate &c. which I brought of John
“ Millar,&c. with the houfes, barns, and other appurtenances
“ thereunto belonging :Alʃo, all my houfehold goods, horfes, live
“ftock, and other moveables, which I have here in Lancaʃter, and
“ in Germantown, Philadelphia county, to her, her heirs and affigns
“ forever: Alʃo Ł1000 lawful money of Pennʃylvania, in bonds and
“ bills, to be paid to her, or her, or her heirs and affigns, in fix months
“ time after my deceafe, with intereft, by my executor herein-
“ after named. I give and bequeath unto my brother John Johnʃon, ​
1789.
“and to each of his three fons, and his daughters, &c. the fum of Ł5.
“ to be paid three months after my deceafe, &c. I give and bequeath
“ unto my fifter Anne Nedrow, all that my 300 acre tract of land,
“ fituate, &c. with the appurtenances, to her, her heirs and affigns
“ forever. I give and bequeath unto my fifter Catherine Wilʃar, all
“ that my 300 acres tract of land, fituate, &c. to her, her heirs and
“ affigns forever. I give and bequeath unto my loving (wife) Anne
“ Johnʃon, the one moiety or undivided halt of all that my 500 acre
“ tract of land, fituate, &c. to her, her heirs and affigns forever;
“ Provided always that if my faid wife Anne Johnʃon after my de-
“ ceafe, fhould be married to another man, that then the fhall
“ have the faid moiety during her life, with fufficient power to give
“ and bequeath the fame at her deceafe, to whomfoever the will,
“ excepting to her second hufband, or any from or under him. I
“ give and bequeath the other moiety , or undivided half part of my
“ faid 500 acre tract of land unto my three fifters, “ Ann, Catharine,
“ and Rebecca, each one third part, to them,their heirs and affigns
“ forever. My will is that there be no water works built or erected
“ on any part of the faid 500 acre tract of land for the fpace of, &c.
“ I give and bequeath my tract of land lying,&c. unto my fifter
“ Ann, and to her heirs and affigns forever; under and fubjet to the
“ yearly rent of 40s .&c. to be paid to my loving wife, Ann Johnʃon,
“ and to her heirs and affigns forever. I give and bequeath unto
“ my fifter Catherine, my twenty and old acres of land, lying, &c.
“ and the appurtenances ; alʃo, twelve acres of wood land to be cut
“ off a large tract adjoining ,&c. to be holden by her, her heirs and
“ affigns forever; under and fubject to the yearly rent of Ł6, to be
“ paid to my loving wife Ann Johnʃon, her heirs and affigns forever,
“ and alfo fubject to as much firewood as my wife fhall have oc-
“ cafion for, when the comes to live at Germantown. I give, de-
“vife, and bequeath to my fifter Rebecca, and her fon Paul all that
“my tract of land (the remainder after the faid 12 acres are
“ taken off) containing 50 acres, more, or lefs, adjoining, &c. to be
“ holden to them, their heirs and affigns forever ; under and fubject
“ to the yearly rent of Ł4, to be paid to my loving wife, Ann John
“ ʃon, her heirs and affigns forever ; the faid tract not to be fold till
“Paul arrives at 30 years of age. I give and bequeath unto my
“ fifter Ann, all that my tract of 12 acres oppofite the laft men-
“ tioned 50 acres,&c. to her heirs and affigns forever. I give and
“ bequeath Ł 50 to the poor-houfe keepers of Germantown,&c. I
“ give and bequeath Ł 50 to the ufe of the Pennʃylvania Hoʃpital. As
“ concerning all the reft and refidue of my effects, bills, bonds, mort-
“ gages, monies, and eftate whatfoever, not herein before given, I
“ would have divided equally between my loving wife Ann, and my
“fifters, Ann, Catharine, and Rebecca, part and fhare alike to each of
“ them, their heirs and affigns forever. And I do appoint and
“ nominate my loving wife, Ann Johnʃon,&c. to be executors of this
“ my laft will and teftament.” ​
1789.
“ The queftion for the opinion of the Court on this plea and cafe,
“is, Whether, upon the whole will, the devifes and bequefts there-
“ in contained, or any of them, to the faid Anne, the demandant, made,
“ are fufficient in law to bar the faid Anne from recovering her faid
“ dower?”
The caufe was argued at the laft term by Sergeant and Bradƒord, for the Defendant ; and Coxe and Lewis, for the Tenants: And now the chief justice delivered the opinion of the Court to the following effect:
M‘KEAN, Chieƒ Juʃtice. – Two queftions have been made on this record, in the difcuffion of which, the law relating to the fubject has been exhaulted; The firʃt is, “ Whether the devifes to
“ the Demandant in the will of Richard Johnʃon, fhall be deemed
“ a fatisfaction of her dower?” And the ʃecond is, “ Whether by
“ the action of partition brought by the Demandant, wherein it
“ is acknowledged that the moiety, out of which dower is now
“ claimed, belonged to the Tenants, fhe is not ftopped from re-
“covering in this action?”
In delivering our opinion on this occafion, we fhall avoid a recapitulation of the arguments offered by the counfel on either fide; confining ourfelves to the queftions propofed, a brief ftatement of the reafons of our judgment, and a referrence to the books, on which we rely, as authorities to fupport it.
1. Dower is a legal, an equitable, and a moral right. Prec. in Chun. 244. It is favored in a high degree by law, and, next to life and liberty, held facred. Lill. Abr.'666.G. Three incidents entitle a woman to dower; Marriage, felfin, and the death of the hufband. 1 Inʃt. 32. a.b. And a widow may be barred of dower by a jointure made in purfuance may, indeed, be made either before, or after, marriage ; but with this difference, that if it is made before, the wife cannot wave it, and claim her dower at common law; which fhe can do, if the jointure is fubfequent to the marriage. No other fettlements, however, in lieu of jointures, are bars to a claim of dower ; nor, it muft be remembered, was a jointure itfelf any bar antecedent to the paffing of the ftatue of H.8. for, it is eftablifhed law, that a right, or title, of dower, cannot be barred by a collateral fatisfaction. Wood's Inʃt. 125. 1 Inʃt. 36. b. Nor, in fhort, by any thing but a plain and expreʃs intention of the parties. Ibid. Finch. Rep. 368. 1 Chan. Ca. 181. 2Chan.Ca. 24, 2 Vent. 340. 4. Co. 1.2.
In the will before the Court, it is no where expreʃʃed, that the devifes to the Demandant fhall be in lieu of dower ; but, it is contended, that the intention of the teftator, collected from the words of the while will, appears to be, that the Defendant fhall be barred of her claim at common law ; that the devifes to her are of lands in fee ; and that thefe, being of four times the value of her dower, ought to be confidered as a recompenfe,or fatisfaction, for ​
1789.
it. But in the words of the whole will, we can difcover no expreʃs intention to that purpofe ; and, although an eftate for life, or even during widowhood (which is the fame as an eftate for life, fince it is in the wife's own power to make it fuch; and thefe, by the biz, are the loweft eftates that will operate in bar of dower, either in a jointure, or will) may be given with the view, and operate to bar a widow's claim at common law; yet, i muft appear to be fo intended by the words of the will, and not inferred from its filence, and eftate in fee fimple, although ten times more valuable than her dower, will be, oƒ itʃelƒ, a bar of dower; but, it will be confidered as a benevolence, and fhe is entitled to both. 2Freem. Rep. 242. Prec. in Chan. 133.
Nor, in fuch a cafe, will equity interpofe againft the wife ; for, I cannot find any inftances in which relief upon this fubject, has been given, but in the following:– 1ft, Where the implication, that the fhall not have both the devife is entirely inconʃiʃtent with the claim of dower ; and 3dly, Where it would prevent the whole will from taking effect ; that is, where the claim of dower would overturn the will in toto. 3 Atk. 437.
In fhort, the authorities are numerous and explicit that dower cannot be barred by a collateral recompence ; that the devife of any thing to a wife, cannot be averred to be in bar of dower, becaufe a will imports a confideration in itfelf ; and that the devife, without other matter, is to be taken as a benevolence, and the devifee deemed a purchaʃor. 4CO. 3.4.9. Mod. 152. 2Vern. 365.2 Freem.Rep. 242. Prec. in Chan.133. 2Will. 624.3Atk.8.436. 1 Ld. Raym. 436. 1 Lukw. 734. Brook (tit. Dower) pl. 69. Dyer 248. 1 Brown. Chan. Rep. 292. To which may be added two decifions in this Court, Blackƒord et ux. vs. Kennedy, in 1769 : And Kennedy et ux. (the prefent Demandant) vs. Wiʃlar, in 1779.
The Court,therefore, unanimoufly think, that the devifes to the Demandant, in the will of Richard Johnʃon, cannot be deemed a fatisfaction or bar of dower in this action.
2. The ʃecond queftion, enquires, whether the Demandant is barred in this action, by the recovery in the action of partition? And, in fupport of the affirmative, the counfel for the tenants have cited 1Roll.Abr. 862. pl. 4. 864. pl. 8. Co.Litt. 27. a.
Dower is an excreʃcent intereft taken out of the inheritance for a time, which being elapfed, the intereft falls again to the owner of the inheritance. But the inftitution of the action of partition became neceffary to appropriate moiety of the 500 acres of land to each of the devifees, not merely for life, but forever; for, the judgment is, that the partition fhould remain firm and ftable forever. If, then, any other perfon than the Demandant, had a right of dower in the whole of the 500 acres, although fuch perfon could not have been made a party in the partition, the partition ​
1789.
might certainly have been effected, notwithftanding that right of dower. And why fhould not the fame be done in the cafe before the Court? The devifee held the moiety allotted to her, fubject to the claim of dower; and, in doing this, there was nothing inconfiftent or uncommon : Nor, can we perceive, how the recovery in partition, eftops the Demandant from faying, that fhe has a claim of dower in that part of the premiffes which has been affigned to the Tenant. As, indeed, on the one hand, there is no cafe, nor dictum of any Judge, to warrant this plea, fo, on the other, we think reafon and juftice are againft it. The cafe cited by the counfel for the Tenants only fays, that, in dower, the Demandant claims dower of lands unde nibil habet &c. and, therefore, fhe fhall be ftopped from claiming any thing more.
Upon the whole, the court are clearly of opinion, and direct, that judgment be entered for the Defendant.