#### *Nicholas V. Bailey and Eliza A. H. Bailey, per pro. amie,*v. *Ker Boyce et al.*

Charleston,

Jan. 1850.

Testator left athis death, his widow and an only daughter, and by his last will and testament, devised and bequeathed to them each, absolutely, “one moiety” of all his estate, both real and personal. The widow, having accepted of the provisions in her favor under the will, subsequently set up a claim to be endowed of all the real estate of testator. Her claim was rejected as inconsistent with the provisions of the will, and conflicting with the evident intention of the testator, to make an equal partition of his property.

*Before*Dargan, Oh., *at Charleston, June Sittings,*1848.

George Henry died in August, 1837. He left a considerable property, real and personal; and he also left surviving him, his wife, Eliza Woodward, one of the defendants, and. his daughter, Eliza A. H. Bailey, one of the complainants, and wife of the complainant Nicholas V. Bailey. The real property of George Henry, deceased, consisted chiefly of houses and lots in the city of Charleston, and in the towns of Columbia and Camden, and his personal estate of slaves and choses in action, the latter being debts due him in the mercantile houses of Ker Boyce & Co., Boyce & Henry, and Boyce, Henry <fc Walter. By his last will and testament, duly executed, and which he left unrevoked, after giving a few legacies of inconsiderable amount, he gave to his wife, Eliza Henry, one half of his estate, real and personal, and the other half to his daughter, Eliza A. H. Henry, now Eliza A. H. Bailey, and appointed Ker Boyce and John Magrath the executors of his will. The will was admitted to probate, and the executors qualified and possessed themselves of the real and personal estate. The widow of the testator after-wards intermarried with William T. Woodward, and in contemplation of the solemnization of the marriage, and pending the same, the widow of the testator, and the said William T. Woodward, executed a deed of marriage settlement, dated 14th October, 1839, by which, among other covenants and agreements, the said Eliza Henry conveyed to the said William T. Woodward, his heirs and assigns, “one half part of all her property, real and personal, devised and bequeathed to her by the will of the said George Henry, deceased,” the other half being conveyed to the trustees for her own use, &c. The marriage was duly solemnized, and afterwards William T. Woodward died in August, 1842, having duly executed his will, bearing date 14th December, 1841. William T. Woodward devised and bequeathed to his wife the oue half of her share in the real and personal estate of George Henry, which she had conveyed to him by the deed of mar*85riage settlement, and which remained undivided, and this he devised and beqeuathed to her in bar and in lieu of all claims of dower in his real estate. The widow, Eliza Woodward, elected to take her dower of the lands of her late husband, William T. Woodward, and by the proper judicial proceedings, her dower has been assigned to her, and she put in possession thereof. By this election of the widow, the devise and bequest to her lapses into the estate of William T. Woodward, to be disposed of as by the terms of his will is directed. The heirs at law and legal representatives of William T. Woodward, are consequently interested in the estate of the said George Henry to the extent of one half of the real and personal estate devised and bequeathed by him to the said Eliza Woodward. And this being a bill tor the partition and for an account of the estate of the said George Henry, they are made parties defendants. The real estate has all been sold, and the proceeds are now to be distributed. And the only question presented at this time for the judgment of the Court, is upon the claim set up by the defendant Eliza Woodward, to be endowed of the real estate of her first husband, the said George Henry. She has accepted the provisions in her favor under the will, as far back as the date of the marriage settlement deed, but contends that such acceptance is not inconsistent with her claim of dower, not being in bar or lieu thereof, or repugnant thereto ; whilst this claim is resisted on the part of the complainant, on the ground, that although the provisions for Mrs. Woodward in the will are not expressly given in bar of her right of dower, it is so repugnant to the other provisions of the will that she will be put to her election ; and that she has already elected to take under the will, and therefore is now concluded from asserting her right to dower. And this is the only question which I am now to consider.

The right of dower is a highly favored claim, and will always be sustained, unless in opposition to the declared intentions of the testator, or in such manifest repugnancy to the will, that the claim to dower and the provisions of the will cannot stand together. The rule thus stated seems plain enough. But when it comes to be practically applied on the question, as to what is such repugnancy as will deprive the wife of her right of dower, or put her upon her election, it not unfrequently presents embarrassments and difficulties. One thing is very clear, and for this there is a host of authorities, that it is not sufficient to make the claim of dower repugnant to the provisions of the will, in a sense that will put the widow upon her election, that the former will make some encroachments or inroads upon property generally devised to other persons by the will. The repugnancy which is to have this, effect must be a *technical repugnancy ;*that is to say, a *86repugnancy as explained and illustrated by the decisions upon subject. To such an extent has this claim been favored, that Comts of justice have been charged with extravagan-cies in sustaining the right of the widow to her dower. But if we will look a little into.the nature of the right, it seems to me that the course of the decisions can be vindicated as being perfectly consistent with the rights of the husband and those claiming under him. Dower is an *estate to all intents and purposes ;*an estate of freehold for the life of the wife in one third of the lands of which the husband was seized during the coverture. It is inchoate during the coverture, but becomes consummated and vested at the death of the husband. And it is as much her estate as if it had been conveyed to her by a stranger, or by the husband before the marriage, or as if it had descended to her as her own inheritance. It is not a part of the husband’s estate at his death ; she does not take it as such, but in her own right by the law of the land. The assertion of her right to dower, therefore, no more bars her of her devise or legacy under the will, than the assertion of her right to her separate estate, or to her entire land or chose in action which survive to. her. Her claim to these last mentioned interests' is not more perfect, or independent of the will of the husband, than is her right of dower. If he affect to dispose specifically of any of these interests of the wife to others, and makes- provision for her by his will, he may by express words, or by a necessary implication, put the widow to her election. It is clear that a mere devise in general terms of the whole of the testator’s real estate, does not create such a manifest implication of intention on the part of the testator to dispose of her estate of dower, or such a repug-nancy as will put her to her election. For he might intend to give only what he had a right to dispose of. The dower of the wife, at his death, constitutes no part of his estate, that will descend to his heirs, or that-can be controlled by his will. And when he disposes of the whole of his real estate, or a particular part of it, he must be construed to mean such part of it as he had a right to dispose of, and as would constitute a part of his estate at his death *•*and not which belonged to the wife by another and independent title.

When the testator, George Henry, gave to his wife the one half of his real and personal estate, without, any violence to the rules of construction, he may be construed to mean that he gave her that estate, subject to her own claim of dower, which she held by an independent title, and which (as if she held it by a title derived from a stranger) would be merged in the fee devised by the will. And when he gave to his daughter the other half of his real estate, by the same consistent rules of construction, he may be supposed to mean that he gave her the half of that *estate*which belonged to *87him, and which he had a right to control. Thus the words of the will would in every sense be fully satisfied by her taking *one half of his estate,*the dower of the widow constituting in contemplation of law no part thereof.

It is not to be denied that there are decisions of the English Chancery Courts, that seem to be opposed to the view that I have taken of this case. In the case of *Chalmers*v. */Storril,*the testator gave to his wife and his two children, *“*all his estates whatsoever, to be equally divided amongst them, whether real or personal.” He then specified and described the property devised and bequeathed by him. The master of the Rolls, (Sir William Grant) in pronouncing his judgment, observes, as to the widow’s claim of dower, “ whether she took under the will an absolute interest, or for life only, it is a case of election ; the claim of law, &c. being directly inconsistent with the disposition of the will. The testator directing all his real and personal estate to be equally divided, &c., the same equality is intended to take place in the division of the real, as of the personal estate, which cannot be if the widow first takes out of it her dower, and then a third of the remaining two-thirds. Further by describing his *English estates,*he excludes the ambiguity which Lord Thurlow, in *Foster*v. *Cook,*imputes to the words “ my estate” as not necessarily excluding dower. Here the testator says the property thus bequeathed by him consists of these particulars. It is therefore the property itself thus described that is the subject of the devise, and not what might in contemplation of law be the testator’s interest in that property. This, therefore, is a case of election.”

Gordon v. Stephens, 2 Hill's Ch.Whilden, Ri- *¿*222, Gordon v. Stephens, 2 Hill’s Ch. 471; Brown *v.*Caldwell, 1 Spear Eq. 322: Whilden v.

3 Bro.C. C. 347,

It is to be observed, that the case now being considered, is unlike the case of *Chalmers*v. *Storril,*in the fact, that in the latter the testator’s will contained a specification of the property ; a circumstance on which the master of the Rolls laid great stress. In *Foster*v. *Cook,*the testator had given “ all his estate and substance,” and in reference to the argument to be deduced therefrom, that there was a necessary implication of intention to exclude dower, Lord Thurlow remarked, “ because he gives all his property to trustees, am I to gather from his having given all he has, that he has given that which he has not ?” In *French*v. *Davies,*Lord Alvanly said, that in order to exclude the claim of dower, it ought “ to be clear, plain and incontrovertible, that the testator could not possibly give what he has given, consistently with her claim of dower.” And this seems to be the principle on which this class of cases is always adjudicated. And it seems to me that the decision in *Chalmers*v. *Storril,*which has been followed by *Dickson*v. *Robinson,*and *Roberts*v. *Smith,*is neither in harmony with this principle, nor with the current of decisions. The construction applied to all the cases where *88dower has been allowed out of lands devised by the testator to others, is, that the testator only meant to devise the *estate*in those lands which he had a *right*to devise. “ In order to raise a case of election, it must be clear and conclusive; for if the testator’s expressions will admit of being restricted to property belonging to or disposable by him, the implication will be, that he did not mean them to apply to that, over which. }je had no disposing power.” Now, applying this doctrine to the construction of George Henry’s will, he gives one half of *his*estate, *real*and personal, to his daughter Eliza. According to the principle which has just been cited, (and on which alone the widow can be dowable of lands devised to another,) what does he mean by the one half of *his real estate?*Do not the words, in connexion with the principle of construction, explain themselves ? Did he mean to include in the devise the estate of another ? Suppose a stranger to his house, to have possessed a title for life to one third of those lands, could it by any possible construction be contended that the testator meant that outstanding estate for life to pass by the terms of the devise? • Is the case m any way different where the widow possesses the outstanding title for life? For the purpose of illustrating .this principle more fully, I will imagine a case. Suppose the testator seized of an estate, in one third of which A B has an estate for life in his own right; and the testator devises all *his*real estate to A B and another, equally to be divided between them; would any one be so extravagant as to say, that in the partition of the estate so derived, that A B would not be entitled to take out his third for life, and then divide equally with his co-tenant the residue, w.hich *was the testator’s real*estate, and which alone fell within the description ? That is precisely the case which we have before us. The testator, George Henry, gave to his daughter one half of *his own*estate, not of his wife’s estate, and has not indicated by words, nor by necessary implication, that the legacy and devise to his wife would be in bar and in lieu of dower. I refer to 1 Jarman on Wills, 402 and 403, for his able, and in my judgment, conclusive argument against the authority of *Chalmers*v. *Storril.*

*872 yes. 576.

jacot, 503. j Sim. & S.513.

*88l Jarman on Wills, 393.

It is ordered and decreed, that Eliza Woodward be endowed of the lands of her first husband, George Henry, one half of which claim is included in her own share of those lands, and the other half in the lands devised to testator’s daughter. And as the lands have been sold, it is ordered that it be referred to the master to report the value of the dower, according to the principles of this decree, to be paid out of the purchase money. The claim for dower can in no event be chargeable on that portion of the real estate conveyed by Eliza Woodward to her late husband, William T. Woodward, before the marriage. And it is so adjudged and decreed.

*89Complainants appealed from the decree, and moved that it be so’ modified as not to allow dower to the widow, in any portion of the lands of testator, the provisions of the will being manifestly intended in lien of dower.

PERONNEAUS & HAYNE, *CompVts. SoVrs.*

Mrs. Eliza Britton and her husband moved the Court of Appeals to modify the decree of the Chancellor in this case,

Because the decree is inconsistent with itself in refusing to allow the widow’s dower as against the representatives of Woodward, when the only interest conveyed to Woodward was that which was given her by the will of George Henry.

*Memminger*& Jervey, for the motion.

*Bailey*& Brewster, contra.

Caldwell, Ch.

delivered the opinion of the Court.

George Henry, by his last will and testament, of the 9th of February, A. D. 1836, among other things, devised as follows: — “I give, devise, and bequeath unto my beloved wife, one moiety or half part of my estate, real and personal, of whatsoever kind and description I may die possessed of, to her, and her heirs and assigns absolutely and forever. I also, give, devise, and bequeath unto my dear daughter, Ann Boyce Henry, the other moiety or half of my estate, real and personal, of whatever kind and description, when my said daughter shall attain the age of twenty-one years, or day of marriage, which shall first happen ; the said proportion of my daughter’s estate, to be under the controul and management of my beloved wife during éaid period ; provided, my said wife remains single and unmarried. And it is my further will and desire, that my beloved wife shall educate my dear child, and keep her under her management and care, for which she shall be entitled to the whole income of my daughter’s estate, so long as my said wife shall remain single and unmarried, and no longer. But should my said wife marry, it is my will, and I direct, that my daughter’s proportion of my estate, real and personal, shall be managed by my friends, Ker Boyce and John Magrath, my executors hereinafter named; and the income arising from my daughter’s proportion, shall be invested for the use, benefit and be-hoof of my said daughter; still, my beloved wife is to have the sole controul, management and care of my daughter, in educating and bringing her up, for which she shall be allowed a full and adequate compensation. In requesting my executors to take charge and management of my daughter’s proportion of my estate, in the event of my beloved wife marrying, is not from a want of confidence in her, who has been an affectionate wife and doating mother, but to protect my dear child’s property from being subject to the controul *90or intermeddling of any future husband who may feel no jnterest in her welfare.”

Decided in 1715, 3 Bro Parl. Cases, 478.

The testator died in August, 1837, and his widow, Eliza pjenry, entered into a deed of marriage settlement with William T. Woodward, on the 14th of October, 1839, conveying to him and his heirs and assigns, one-half part of all her property, real and personal, devised and bequeathed to her by the will of George Henry; the other half being conveyed to the trustees, therein named, for her own use. William T. Woodward devised *the*half she had conveyed to him by the deed of marriage settlement, to her, by his will of the 14th December, 1841, and died in August, 1842. She elected to take her dower in his lands, which has been assigned to her, and. of which she has possession. *All the real*estate of George Henry has been sold, and the proceeds are to be distributed^ and she claims her dower in his real estate; and the question is, is she entitled to it?

The law so highly regards the widow’s right to dower, that the husband can neither aliene it in his lifetime, or devise it at his death, although he has the extraordinary power to deprive her of every other interest in his estate. As the husband has the absolute right to dispose of his estate, he may, in making provision for his wife by will, annex the express condition, that it shall be in lieu and bar of her dower; her acceptance of the legacy is, in law, a renunciation of her dower. The second class of cases is where the testator has not expressly excluded her claim of dower, but if she enforces it, it is inconsistent with the provisions of the will and defeats the testator’s intention. ■ This is denominated a bar by necessary implication.

There has been great contrariety of opinion in many of the cases in the English *reports, and it seems that every*case must depend upon the plain and manifest intention of the testator, and the inconsistency of the claim of dower with the provisions of the will. In one of the earliest cases which was carried up to the House of Lords, a man devised a moiety of his estate, after payment of his debts, legacies and portions, *to*his wife for life; it was held that this would not bar her of dower, but she ought to elect whether she would insist on her dower or waive it and take under the will.

In *Chalmers*v. *Storril,*the words of the will were, ctI give to my dear wife, Anna Maria Chalmers, and my two children, namely — my daughter, Anna Maria Chalmers, and my son, John Chalmers, all my estates whatsoever, to be equally divided amongst them — whether real or personal— making no distinction in favour of the male, as it is my intent that my daughter shall have an equal share with my son of all my property,” &c. Sir William Grant, the Master of the Rolls, was of opinion that it was a case of *91election on the part of the widow, and that her claim of dower would be directly inconsistent with the disposition of the will; the equality in the division of the real estate would' have been defeated if the widow took out of it her dower, and then a third of the remaining two-thirds.

t Jam. on Wills, 402,.

• Sir Thomas Plumer, who succeeded him as Master of the Nolls, adopted and applied the same principle in *Dickson*v. Robinson, where the testator gave his real and personal estate to his widow, upon trust, for the equal benefit of herself, his two daughters, and the child or children with which she was then pregnant.

And Sir John Leach, the Yice Chancellor, in the more recent case of *Roberts*v. *Smith,*held that where the testator devised gavel-kind lands to his wife and two other persons, in trust, as. to one moiety for his wife during her widowhood, and as to the other moiety for his children, the wife must elect between her dower and the provision under the will. This case recognizes and approves the principle in *Chalmers*v. *Storril.*

Notwithstanding Mr. Jarman’s disapproval of the three last cases, he has produced no case to contradict, much less to overrule them. JHis objection arises from the presumption. “that as a testator means to dispose of his own interest, exclusively of that of any co-owner, it follows that every devise is first to be read as applying to that interest, and unless some repugnance or inaptitude occurs in such an application of the testator’s language, there is no ground for extending the devise to that portion of interest which is not disposable by him.”

No rule is better established than that one cannot claim under and against a deed or will. Where a testator disposes of property not his own, but which belongs to the legatee, the latter cannot come in and take a legacy under the will without relinquishing his right. This occurs in cases where the title is clear and established. The claim of dower, during the lifetime of the husband, is contingent and inchoate; it cannot be enforced until after his death, and when he devises the' whole estate out of which it is to be taken to his wife and children to be equally divided, her asserting her claim of dower, not only disturbs her co-tenants in the enjoyment of their estate, but defeats the main object 'of the testator, an equal partition of the property. If the testator had, in this case, declined to make a will, the Act of distributions would have given the widow one-third and his daughter the other two-thirds of his estate; in such case no claim of dower could have been set up; and can it be inferred, that when he has established a more favorable division of his estate between them, that he used such inappropriate terms, “ *one*moiety,” when he meant that his widow should take her third *92out of his real estate, and then come in for an equal part of the remainder of his real and of the whole of his personal estate *1*

2 Ves. & B. *m.*

The widow’s demand of dower would thus defeat the manifest intention of the testator, to put her and his daughter upon a perfect equality, and while it would destroy the proper proportion he had devised to each of them, would disturb his daughter in the enjoyment of the moiety which he had expressly provided for her.

The ingenious suggestions of Mr. Jarman are not sufficient to raise the presumption, that the testator’s intention is not defeated by the claim of dower, and cannot be permitted to prevail against the construction that should be put on the provisions of the will, and the authority of so many decided cases. Our own cases do not in the slightest degree conflict with these views.

It is therefore adjudged and declared, that the said Eliza Woodward is not entitled to be endowed o.f the real estate of her first husband, George Henry. And it is ordered and decreed that the Circuit decree be modified according to this opinion.

DunkiN, Ch. concurred.

JohnstoN, Ch. absent at the hearing.

*Decree modified.*

Dargan, Ch.

dissenting. — In this case, I have heard nothing in the argument, or in conference, to change or modify my views as expressed in the circuit decree. Indeed, my opinion is confirmed ; for, after a full research, no other authorities could be cited, against that opinion, than those very cases which I had already considered before making up my judgment; all of which are cited in the decree itself. These cases I regarded as, in the highest degree, apochryphal, and. their inconsistency with the current of English decisions, and the principle to be deduced therefrom, has been clearly demonstrated, by one of the ablest modern commentators on English Law, (Jarman, on Wills.) The first of the cases *(Chalmers*v. Storril) was but little argued, and not elaborately considered. There was not a precedent cited in support of the opinion of the Court, either by counsel or the Master of the Rolls.

The main ground of the decision was the presumed intention, on the part of the testator, of creating an equality between his wife and children. But, as if half conscious that his conclusion needed support, he proceeded to strengthen it by alluding to the tact that the testator has, in his will, described the estate disposed *of*— “ Further,” says Sir William Grant, “ by describing his English estates, he excludes the *93ambiguity which Lord Thurlow, in *Foster*v. Cook, imputes to the words *1 my*estate’ as not necessarily excluding, dower.”

Mylne and Keene. 262; S. C. 7 Com. Eng. Ch. 309.

In *Dickson*v. *Robinson,*decided by Sir Thomas Plumer, (Master of the Rolls), *Chalmers*v. *Storril*was implicitly followed'as an authority; and no other reason, or authority, but the previous decision, is given, either in the aigument or judgment of the Court.

The same remarks apply to the case of *Roberts*v. *Smith.*There has been no decision to this effect, by the Lord Chancellor, or by the House of Lords. Every judicial opinion from these high sources looks entirely the other way, as I will presently attempt to show. But, in the stead thereof, we have the decision of three English judges, of inferior rank, or rather of one — for the two last of this series of cases followed the first, as a precedent, and, simply, because it had been previously so decided. And I am in no way bound, on the authority of these cases, to yield my own deliberate convictions, even as to what is the English law upon the subject. I have said, in the circuit decree, that the decisions that I have been commenting upon, are not in harmony, either with the general principles of law, or the general current of the decisions.

I purpose, now, taking a glance, first, at the decisions of the English Courts on this subject — and, then, I will bring under review what the Courts of the States of this Union have said on the same subject.

In the first place, I will remark that, in the construction of a man’s will, we are not to presume that he has affected to devise or bequeath that which does not belong to him, or which he has no right to dispose of; but the contrary is a fair and legitimate presumption. This general proposition must command univeral assent, for the contrary presumption, I think, would be an absurdity. In *Dummer*v. *Pitcher,*the testator, in his life, had caused certain stocks tobe transferred to himself and his wife, in their joint names. The Court held, that, on the death of the husband, this stock survived to the wife. The testator, by his will, gave to his wife, for *life,*“ the interest *on all his funded •property, or estate, of whatsoever*kindHe also made other and additional provisions for her. And the question was — whether the wife was to be put to her election? — or, in other words, whether she was entitled to take the stock, as hers, by right of survivor-ship, and the other benefits conferred on her by the will. And it was decided that she was entitled to both. The Lord Chancellor said, “ There is nothing more undoubted in law, than that, to make a case of election, the intention must-appear certainly and clearly, both as to the property assumed to be disposed of, and as to the implied condition to be fulfilled *94*^*Person not! without the strongest indications of such ,an intent, to be understood as dealing with that which does not belong to him. As for his supposing himself to have rights which he has not, unless it appears plainly upon the face of the will, it would be most dangerous to be guided by any conjecture that may be raised to this effect, or to let in extrinsic proof of it.” Again, he says, “There is nothing to justify the Court in believing that the testator intended *to*give what is not his own.” This principiéis applicable to all cases of election. It is, in an especial manner, applicable to cases where the right of dower is involved. For dower is a claim highly favored in law, as none will deny. And, in the construction of a will involving the widow’s right of dower, we must start out with the presumption that the testator did not intend to control or exclude the right; because, he has no more right to do so, than he has to dispose of choses in action which survive to her; or any other estate, or interest, which belongs to her in another and independent right, and which he had no power to control or dispose of. In my opinion, this principle alone can explain, or justify, very many of the cases, in which the widow has been held to be entitled to her claim of dower, and also to the provisions of the will in her favor, notwithstanding the former, upon a less stringent rule of construction, would seem to come in conflict with the will. All the cases on the subject, both English and American, concur in establishing one doctrine, (a doctrine which the two chancellors, who sat with me on the hearing of this appeal, admit,) that the implication which puts the widow upon her election in a claim of dower, must be a *necessary implication.*There is, of course, some latitude here as to what is a necessary implication, or inference. A necessary implication, or inference, arising on the face of a will, or deed, I apprehend, unless words have lost all certainty, means a construction, the converse of which would be unreasonable, far fetched and forced. Starting out on the presumption that the testator did not intend to do that which he had no right to do, (to deprive the widow of her dower,) if there be not a necessary implication in the sense of the foregoing definition, to exclude her from her dower, or to compel an election, *then*she will be entitled to both claims. But, if the intentions of the testator to the contrary be clearly and unambiguously expressed, or indicated, so as to raise a necessary implication that he intended her to take under his will, in lieu of her dower, she will be put to her election. This is the result of the cases, and nothing more can be made of them. And they establish, on the broadest foundations, the principle that the widow’s claim, both to her dower and the provisions *95for her under the will, shall prevail, except against a necessary implication, or an expressed intention.

2 John. Ch. R.

*2 Sch. & Let. 450*

Cooper’s Rep. 319

Chancellor Kent, in *Adsit*v. *Adsit,*says — “ To enable us to deduce such an implied intention, the claim of dower must be inconsistent with the will, and repugnant to its provisions, or some of them. The title to dower is paramount to the testator’s title, and he has no control over it.” “ Every devise, or bequest,” he says, “imports bounty, and does not naturally imply satisfaction of a pre-existing incumbrance.”

In *Birmingham*v. *Kirwan,*Lord Kedesdale said — “It to be collected, from all the cases, that, as the right of dower is, in’itself, a clear legal right, an intent to exclude that right, by voluntary gift, must be demonstrated either by express words, or clear and manifest implication. If there be any thing ambiguous, or doubtful — if the Court cannot say it was clearly the intention to *exclude*— then the averment that the gift was made in lieu of dower cannot be supported; and, to make a case of election, *that*is necessary — -for a gift is to be taken as pure, until a condition appear. This I take to be the ground of all the decisions. *Hitchin*v. *Hitchin*proceeds clearly on this ground, and all the cases seemed to have followed it,” «fee. In the case last cited, the testator devised his house aud the premises to his wife for life, at a rent below the actual value, she keeping the same in repair, and not alienating, except to the remainderman. He also gave her other legacies, consisting of stock of cattle, household goods, plate, &c. The testator also devised *his freehold property*to trustees, upon trust. Out of the rents and profits, or by sale or mortgage thereof, to pay debts ; and, next, to raise the sum of £6,QUO — of which sum he directed £200 to be paid to his wife, and the residue, in various proportions, to other persons. As to all the rest of his lands, including the “remainder in the estate,” devised to his wife for life, the testator devised the same, subject to debts and legacies, to John Birmingham for life — remainder to his son. It was decided, that the widow should not take dower out of the estate given to her for life, but that she was endowable out of all the other real estate, given to other devisees, though said real estate was chargeable with a pecuniary legacy to herself.

The case of *Lord Dorchester*v. *Earl of*Effingham, was heard by the same judge who heard *Dickson*v. Robertson, (Sir Thomas Plumer, then Yice-Chancellor.) Lord Dorches-ter, by his will, gave to his wife £500, and other benefits. He devised to her, for life, Stubbings House and fifty-three acres attached thereto, being part of the Stubbings estate. He directed that all his landed estate, and other property, should be attached to his title as close as possible, and bequeathed certain debts due from government, and other personal estate not disposed of, to his executors, to increase his *96landed estate. Hear the Yice-Chancellor. *“*It is clear that tjje wjq ¿oes 110t) jn this case, express in terms that the widow is to be barred of dower. If she is to be barred, the Court must collect it from inference. 4 Court must be cautious in doing this, it being dangerous to collect, by guessing and conjecturing, that a testator meant what he has not said. The testator, in this case, might not have been apprised of anything about dower, when he sat down to give his wife the house and grounds about it, for her life : probably he had no intention, in any way, as to dower out of the rest of bis estate.” “ As to the words in the will,” he said, “ about attaching the testator’s land to his title as closely as possible, they create no inconsistency with the claim of dower. That claim may postpone or abridge such object in the testator’s will, but is .not absolutely inconsistent and incompatible with it, and both may stand together.” It was held, that the widow was not put to her election, and was endowable out of the Stubbings estate, except such portion of it as had been devised to herself for life. It is to be remarked that these cases, and others that may be cited, establish the doctrine that the claim of dower, operating as a postponement or abridgement of devises to other persons, does not present such an implication as will exclude dower.

2 Vern., 365

2 Vern, 403.

In *Lawrence v.*Lawrence, the testator gave legacies of personai property to his wife. He also devised a part of his real estate, of the yearly value of £130, to her during her widowhood, and the remainder of his'whole estate he devised to the plaintiff. Lord Somers hold, that the provisions of this will presented to the wife a case of election. But inis decree was afterwards, on a re-hearing, before Lord Keeper Wright, reversed, because it did not appear that the testator intended to bar the wife of her dower. The decision in this case, in substance, was that a devise to the widow of a part of the lands, out of which she was dowable, does not exclude her from her right of dower as to the rest, though devised to others, the devise and sole possession of a part of the lands out of which the dower is to issue, not being deemed inconsistent with the assertion of a right to a third of the whole. The same question, under the same will, was made, fifteen years later, before Lord Camden, by the remainderman, whose estate had fallen in. The decree of Lord Camden re-affirmed the right of the widow to her dower. And, on appeal to the House of Lords, after argument, it was held, “ that so much of the complainant’s bill as relates to the questioning oí the dower of the said Dulcebella Lawrence, should be dismissed,” with costs.

So, in the case of *Hitchen*v. Hitchen, the testator devised certain real estate to his wife for her life, and devised the residue of his lands to other persons. The Lord Keeper held, *97that the devise to the wife was not to be looked upon as any recompense, or bar of dower, but as a voluntary gift.

8 Viner’s Abr. 366-

Story Eq. sec. 1087-

1 Keene, 763.

J. Leman devised lands to his wife for her life, and devised other lands to his brother (the plaintiff) and his heirs. The defendant, the widow, enters upon the lands devised to her, which were of more value than her clower, but not devised to her in lieu and satisfaction of dower; and, afterwards, brings dower against the devisee of the other lands, and recovers dower and costs against him, who brings his bill in this Court to be relieved against the judgment, <fcc. Parker, Oil., in referring to the case of *Lawrence*v. Lawrence, said “ this point is determined already by the House of Lords, that there is no relief in this case in equity, and, therefore, the bill must be dismissed.”

The unmistakable conclusion to be deduced from these cases is, that, whenever the dowable estate is devised in general terms, it passes *cum onere,*and does not exclude dower — though other lands, or even a part of the same estate, is devised to the widow, and she has taken under the will.

But let me resume my review of the authorities. Mr. Justice Story holds the following language : “ A case of election cannot ordinarily arise, where the property is devised in general terms; as, a devise of all my real estate in A. Such a devise,” he holds, “ is subject to the right of dower, for it is not apparent that he (the testator) meant to dispose of any property but what was strictly his own, subject to that claim.” Again, in sec. 1083, the same author remarks, “if a testator should bequeath property to his wife, manifestly with the intention of its being in satisfaction of dower, it would create a case of election. But such an intention must be clear and free from all ambiguity, It will not be inferred from the mere fact of the testator’s making a general disposition of all' his property — although he should give his wife a legacy, for he might give only what was his own, subject to dower. There is no repugnancy in such a devise, or bequest, to her right of dower. The right to dower being, in itself, a clear legal right, an intent to exclude that right, by voluntary gift, ought to be demonstrated by express words, or by clear and manifest implication.”

In *Dawson*v. Bell, the testator devised all his free-1 hold and copyhold lands to his children, equally to be divided among them, subject to an annuity to his wife during her widowhood. He also gave her all his household goods, &c. It was contended that the gift, by the testator, of all his real estate, for the purposes of ’nis will, was inconsistent with the abstraction of one-third of those estates for dower, in addition to the benefits given by the will to the widow. The Master of the Rolls said: “That the testator had himself no intention to leave his wife her claim of dower, when he made this will, cannot be reasonably doubted. But the *98question is, whether the disposition of the will is of such a nature as to be inconsistent with the enjoyment of dower by the widow. In the consideration of this question, when a testator speaks of all his estate, he must be held to mean all bis estate, subject to the legal rights against them; and among these is the wife’s right to dower. In this case, the testator gave all his freehold messuages, dec., subject to the payment of the annuity to his wife; and I cannot say that this devise is clearly inconsistent with the enjoyment of her dower by the wife. She must, therefore, be decreed to be entitled to the enjoyment of both the annuity and her dower.’’

1 Keene, 765.

7 Cowen, 287.

1 Dallas, 615.

In *Harrison*v. *Harrison,*the testator gave all his farms, lands, estates, &c., upon trust, to receive the rents and profits, and to pay to his wife, during her widowhood, £.200 per annum — the residue to his son during his minority: his son, on his attaining twenty-one years, to be let into the possession of the estates, subject to the annuity in favor of the widow. It was held not to be a case of election. The Master of the Rolls, speaking of the devise to the son, says, “ *prima facie, his*(the testator’s) farms, lands, estates, &c., must mean his real estate, of which he had the power of disposing: which would be his real estate, subject to the lawful claims ; and one of these lawful claims would be the dower of the wife.”

In *Jackson*v. *Church,*the testator devised to his wife, *durante viduitate,*his dwelling-house and gardens, together with certain personal property. The rest of his estate, real and personal, he gave to his two sons, one of whom was to keep his mother’s live stock, and to contribute to her support, if requested. The question was, whether the wife was entitled to both dower and the benefits given her by the will ? It was held that her taking the latter was no bar to her claim of dower. The Chief Justice said : “There is, in this provision, nothing inconsistent with the claim of dower. The devise to the two sons will be less valuable, but that constitutes no objection.

“ There is no incongruity in enforcing the claim to dower and the devise. The two stand well together,” &c.

*Kennedy*v. *Vedrow & Wife,*is strikingly analagous to the principal case. Richard Johnson devised and bequeathed to his wife, Ann, a certain house and lot, &c., household goods, and live stock, to her and her heirs forever — also, a legacy of £1,000, to his said wife, and some small pecuniary legacies, to his brother and his brother’s three sons; to his sister, Ann Nedrow, his three hundred acre tract of land, situate in, &c., to her heirs and assigns forever; to his wife, Ann, *“ the one moiety, or undivided half part of all*that my five hundred acre tract of land, situate, &c., to her heirs ana-assigns forever, provided,” &c. “ The other moiety, or undivided half part of my said five, hundred tract, I give and *99devise unto my three sisters, Ann, Catherine and Rebecca, each one-third, to them,-their heirs and assigns forever,” &c. The widow had before brought her action for the partition of the five hundred acre tract, and her half had been assigned to her. And she now brought her action for dower out of the other moiety that had been devised by the testator to his three sisters, and had been assigned to them. The question for the opinion of the Court was, whether, upon the whole will, the devises and bequests therein contained, or any of them, to the said Ann, the demandant, are sufficient in law to bar the said Ann of her dower. It was well considered ; for the Chief Justice, in delivering the opinion of the Court, remarked that, in the argument, the whole law upon the subject had been exhausted. “ Dower,” says the Chief tice, (McKean,) “is a legal, equitable and moral right. It is favored, in a high degree, by law, and, next to life and liberty. held sacred. In the will before the Court it is nowhere expressed that the devises to the demandant shall be in lieu of dower ; but it is contended that the intention of the testator, collected from the whole will, appears to be that the demand-ant shall be barred,” &c.; “ that the devises to her are of lands, in fee; and that these being of four times the value of the dower, ought to be considered a recompense or satisfaction for it.” “No devise,” he says, “to the wife, even of an estate in fee simple, although ten times more valuable than her dower, will, of itself, be a bar of dower; but it will be considered a benevolence, and she will be entitled to both. Nor, in such a case, will equity interfere against the wife; fori cannot find any instance in which relief on this subject has been given, but the following — first, where the implication, that she shall not have both-the dower and the devise, is strong and necessary: second, where the devise is entirely inconsistent with the claim of dower; and, third, where the claim of dower would prevent the will from taking effect *in toto.*

Prac. in Chan. 244. Lilly's Abr. 666.

2 Freem. Rep. 242; Prec- in Chan>133>

2 Yeates, 143; 3 Yeatess, 10; Yeates 5 paige, 601; 8 Paige, 325; 3 Atk.

“ In short, the authorities are numerous and explicit, that dower cannot be barred by collateral recompense; that the devise of anything cannot be averred to be in bar of dower, because a will imports a consideration in itself; and a devise without other matter, is to be taken as a benevolence, and t.he devisee deemed a purchaser.” The Chief Justice concludes /with a long array of authorities which he cites, and announces the unanimous opinion of the Court, that the devises to the demandant cannot be deemed a satisfaction of her dower. In addition to the authorities cited by the Chief Justice, see *Sample*v. *Sample, McCullough*v. *Allen, Wood*v. *Wood, Fuller*v. *Yeates.*In *Incledon*v. *Northcote,*Lord Hard wicke held, that where the husband had devised to the wife in remainder, the very estate out of which she claimed her *100dower, it was not a bar or satisfaction of the dower as being inconsistent with the will. In speaking of the inconsistency of the claim with the provisions of the will, he observes “but Lady Northcote does not claim to ovoi-turn’the will, but only a temporary interest, and is only taking out an excrescent interest for a time, and afterwards it will go as the testator intended.” That a rent charge or annuity in favor of the wife, charged upon the real estate devised to some other person, would not exclude the widow from her dower by pulting ^er to e'ect between the annuity and the- dower, is clear beyond all dispute. Not only does this appear from the cases of *Hitchen*v. *Hitchen*and *Harrison*v. Harrison, already ^ut from a review of all the English cases. The earliest of the later cases all run this way, with a temporary corrupted current in the times of Lord Camden and Lord Northinglon. Lord Hardwicke’s decision was in accordance with the principle which 1 have asserted, in *Pitts*v. *Snowden.*Different decisions were made by Lord Camden in *Villavald*v. *Lord*Galway, by Lord Northington in *Arnold*v. *Kempstea,*and by Sir Thomas Sewell in *Jones*v. *Collier.*In subsequent cases these decisions have been overruled, and it is settled law, that the wife is not put to her election *(ipso facto)*by an annuity charged upon real estate devised to others in general terms. *(Pearson*v. *Pearson,*1 Bro. 292, by Lord Rosslin ; *Brown*v. *Perry,*Dich. 685, *Foster*v. *Cook*3 Bro. 747, by Lord Thurlow; *Straham*v. *Sutter,*3 Ves. jr. 349, by Lord Alvanly, in which the cases are reviewed. *French*v. *Davies,*2 Vesey, jr. 572.)

Adsit v. Adsit, 2 John. Ch. 428; Hall v. Hall, 1 Bland, 135; Blake v. Barbury, l *Vesey,*522; Thompson v. Nelson 1 Co. 447.

Cited in Appen. to 1 Bro. Ca. Amb. 682. Amb. 1466. Amb. 730

2 Younge and Coltyer.

The language ofLord Thurlow in *CookSp Foster,*is worthy of remark. He says, “ as to the other point, (the claim for dower,) the wife has a charge upon the estate paramount to the will. She has an absolute right to the third part; it is not his to deprive her of it. But here it is to be gathered from circumstances, that she is not to have it. And because he has given *all*his property to the trustees. I am to gather from his having given *all*his property, that he has given that which he had not *1*So far from a plain declaration, I have nothing even to lead me to think that he meant *to*deprive her of it. She must therefore have her dower.” The testator* had given her an annuity charged upon real estate devised to others.

In *Holditch*v. *Holditch,*the Vice Chancellor (Knight Bruce) says, “I feel bound by the present state of the authorities to say, that a gift of an annuity to the testator’s widow, though charged on all the testator’s property, is not sufficient to put her to her election. I consider mvself equally bound by the authorities to say, that a mere gift of an annuity so charged, and a gift of the whole of the testator’s real estate, though specified by name to some, other person, are' *101not of themselves sufficient *to*put the widow to her election. And moreover, that a gift of a portion of the real estate to^ the wife for life or during widowhood, is not sufficient as to the residue to pm the widow to her election.” “ To put the widow to her election, on the ground that her claim of dower is inconsistent with the intention of the testator as to some other devisee or legatee, there must be something beyond the mere devise or legacy. There must be such circumstances attending the gift, that if dower.be admitted, the devisee or legatee will be disappointed of the enjoyment of the property in the *mode*pointed out by the testator. It is the *mode*and not the quantity or extent of the interest, that may make the claim of dower inconsistent with a devise to another, for certainly in all cases where the widow’s claim- of dower comes in conflict with the devise to another, the value of the estate is to that extent diminished.”

I might multiply authorities to an indefinite extent. As to this kind of argument I have said enough ; I will only say, that our own cases cited in the Circuit decree are harmonious with the general current of the decisions. I think 1 have said enough to shew that *Chalmers*v. *Storril,*which has been followed by the Court of Appeals in this case, is unsupported either by precedent or authority. It is anomalous and has been severely criticised and condemned by one of the ablest modern authors upon English law, (Jarman on Wills.)

The decision was put in that case, as it is in the case now before this Court, upon an inference of a supposed intention of the testator, unfavorable to the claim of dower, from his having given the lands in moieties. ' Can such an inference arise sooner from this provision, than if he had given the land in three or more shares, or if he had given a -particular tract or part? In the case last supposed, it could with the same propriety be said that the testator intended his devisee to take all the estate he had given him. Yet we have seen how little such a devise avails against the claim of dower on a question of satisfaction.

But the provision in Mr. Henry’s will, that his wife and daughter should have *his*real estate in equal moieties, is perfectly consistent with the claim of dower. If the widow takes her dower, she only takes *her own*estate; the moiety given to her, she takes subject to her own claim of dower, which merges with the fee; and the daughter takes of the *testator’s*estate an equal share, when she takes it subject to the widow’s claim of dower. The misapprehension arises from considering the testator, when he speaks of *his*estate, as speaking of his wife’s estate. The argument deduced from the fact, that the testator used the same language in disposing of the personal estate, is not entitled to much weight, as long *102as we find in the books such cases as *Forth*v. *Chapman and Mazyck*v. *Vanderhorst.*But there is no inconsistency whatever, if we consider the testator as disposing only of what he had a right to dispose of. Then the words are consistent and appropriate, whether applied to the real or personal estate, and in no way repugnant to dower.