#### *Eliza C. Brown*vs. *Joseph Caldwell, executor of Richard S. Brown, et al.*

1. Testator, in the first clause of his will, directed that the whole of his estate should be kept together for twelve months, and that the proceeds he applied to the payment of his debts. In the second clause he bequeathed as follows: ‘T devise that at the expiration of the ahovementioned time, my wife shall have one negro man named Jim, and wife Sarah, with her entire issue. One negro woman, Olarissa, child, and future issue, One negro hoy, Shade, the one third of my household furniture, my carriage and hor~. ses, to be hers forever. I will, that my hoy Jesse, remain with my other-property, for five years to come, then to he the property of my beloved wife forever; also, my whole property in the Glenn’s Springs, to be hers forever.’* In the third, fourth and fifth clauses, he gave to his three children, each one third part of his “remaining propertyand in the sixth clause directed that all the property, both real and personal, devised to his children, be kept together until his eldest child arrived at the age of twenty-one, “fhen to be equally allotted and drawn for by my beloved children.”

2. This provision in the will *held*no bar to .the wife’s right of dower.

*Before*Johnson, Ch., *at JVeioberry, June Term,*1842, from whose circuit decree the facts of the case will be fully understood.

Johnson, Ch. The defendant’s testator, in the first clause of his will, directs that the whole of his estate be kept together, for twelve months, and that the proceeds be applied to the payment of his debts. In the second clause, he be-, queathed as follows, viz: *“I*desire that at the expiration of the above named time, my wife, (the complainant,) shall have one negro man, named Jim, and his wife Sarah, with her entire issue. One negro woman, Clarissa, child, and future issue. One negro boy, Shade, the one third of my household furniture, my carriage and horses, to be hers for-! ever. J will that my boy Jesse, (the blacksmith,) remain with my other property, for five years fo come — then to be the property of my beloved wife, forever. Also, my whole property in the Glenn’s Springs, to be hers forever.” In the third, fourth and fifth clauses of his will, he gives to his three children, James L., Sims E. and Martha, each one third part of his “remaining property.” In the sixth *323clause, he directs that “all the property both real and personal” devised to his children, be kept together until his eldest child, James L. arrives at the age of twenty-one, “then to be equally allotted, and drawn for by my beloved children.” The bill alleges that this provision for complainant, was inadequate, considering the value of the estate, and ought not to be regarded as evidence of the intention of the testator, that the complainant should not have dower in his real estate. The answer, on the other hand, insists, that it was very liberal, the testator being largely indebted at the time of his death. There was no evidence on the point.

The testator died possessed of real and personal estate of considerable value. The bill prays a writ for the ad-measurement of complainant’s dower in the lands, and for an account of the rents and profits. The leading question is, whether the provision made for her in the will, is a bat to her right of dower.

“NEWBERRY DISTRICT, )

*South Carolina.*$

III the name of God — amen. í, R. S. Brown, of the Staté and District aforesaid, being of sound and disposing mind and memory, but weak in body, and calling to mind the uncertainty of life, and being desirous to dispose of all such worldly estate as God, in his kind, providence, hath seen fit to bless me with, do make and ordain this my last will, in manner following, viz;

*“Primus.*— 1 desire that my entire property be kept on my place for twelve months to come, and that the *proceeds*be applied to my debts.

*“Secondly.*— I desire that at the expiration of the above named time, my beloved wife shall have one negro man, Jim, and wife Sarah, with the entire issue; one negro woman, Clarissa, child, and future issue • one negro boy Shade; the one-third of my household furniture; my carriage and horses ; to be hers forever. I will that my boy Jesse, (the blacksmith,) iemain with my other property for five years to come, then to be the property of my beloved wife forever ; also, my whole interest in the Glenn Springs to be hers forever.

“ *Thirdly.*— I will and bequeath to my beloved *son*James L. Brown, the one third of my remaining property, both real and personal, to be his forever.

*324Preliminary to the consideration of this question, it will he necessary to state in relation to the testator’s property in the Glenn’s Springs, devised to his wife, that a company called the Glenn’s Springs Company was incorporated by the Legislature, of which the testator was at the time, or afterwards became, a member. They owned a considerable body of land, within which was the Mineral Spring, called Glenn’s, and on which had been erected a hotel for the accommodation of visitors; the testator purchased a lot on the premises, and made improvements thereon for his personal convenience. This was the property, doubtless, intended to be designated, in the devise to his wife of his “whole property in the Glenn’s Springs.” But it was stated at the bar, and understood to be conceded, that he purchased his interest in the Springs, on credit, and mortgaged it to Glenn, the original proprietor, for the payment — that since his death, the *mortgage*had been foreclosed, and that the sales did not pay the debt, so that complainant took *325nothing under that devise. For the general doctrine on this subject, I refer to *Gordon vs.*Stevens, 2 Hill’s Ch. Rep. 47, in which it is laid down that no provision made by the husband for the wife, will exclude her from the right of dower, unless such an intent is clearly expressed, or arises by necessary implication. It is not expressed in this will, and the question is whether it arises by necessa'ry implication.

*324
      *“Fourthly.*— I will and bequeath to my son, Sims E. Brown, one other third, to be his forever.

*“Fifthly.*— I will and bequeath to my beloved daughter, Martha Brown, the remaining third, to be hers forever.”

*“Sixthly.*— All the property, both *real and*personal, named in the third, *fourth and fifth clauses, to be kept together*until the eldest son, James L. Brown, arrives at the age of twenty-one, then to be equally allotted and drawn for by my beloved children.

“And lastly, I do cosntitute and appoint Joseph Caldwell, my executor of this my last will and testament by me made heretofore. In testimony whereof, I have hereunto set my hand and affixed my seal, this 27th February, eighteen hundred and forty one.

R, S. BROWN.” [l. B.]

“Signed, sealed, published and delivered 'j as and for the last will and testament ! of the above named R. S. Brown, in j presence of us.

Test. T. J. Brown.

J. A. Renswick.

J. P. Caldwell.”

*325It will be implied in all cases where the dispositions of the will are so inconsistent with the wife’s right of dower, that they can’t both take effect; or if the provision for the wife be so ample, regard being had to the value of the estate, as to excite the belief that the testator could not have intended that she should take both; as where the estate in which dower is claimed, is charged with an annuity for the wife, it has been held that would support the implication, but even that was doubted by Lord Loughborough, if the estate was sufficient to satisfy both. I suppose, too, that it would be implied, where the testator disposed of the residue of his estate specifically. But I have not been able to find any case in which it has been held, that any general disposition of his estate would raise the implication. The direction in this will, that his “remaining property” should be kept together until his oldest child should arrive of age, and then be divided, is the principal circumstance relied on to shew that the testator intended to exclude the complainant from dower. But I can’t distinguish between this and the case of *Gordon & Stevens,*where the direction was to the executor, to sell all the estate, and after paying debts, to distribute the remainder amongst children. If in that case there was nothing inconsistent with the wdfe’s right of dower, because the directions may be supposed to have been given with the knowledge that she would be entitled to it, so in this, the devise to the children, and the directions that the estate should be kept together, may be supposed to have been made with the same knowledge; and if the dispositions of the will in the one case be consistent with the right of dower, it must be so in the other.

The right of dower is amongst the most favored by the law. It is put on the footing of life and liberty, and in looking through the cases, one is led almost to conclude, *326that common sense and sound reasoning have been violated in giving it effect. But there is less apparent impropriety in it, when it is recollected with what facility the husband may put his intention beyond all dispute, by declaring that the provision made for the wife was intended to bar her right of dower. It is, therefore, ordered, that a writ for the admeasurement of the complainant’s dower in the lands described in the pleadings do issue, and that defendant, Joseph Caldwell, do account for the rents and profits.

The defendant appealed from the decision, and moved the court of appeals in equity to reverse it, on the following grounds:

1st. Because the complainant, the widow, is not entitled to take the legacies left to her under the will, which she has accepted, and to claim her dower in testator’s lands, but ought to make her election.

2d. Because the executor, Joseph Caldwell, ought not to account to complainant for the rents and profits of the lands, as the will directs, in the first clause, that the “entire *property*be kept together on my place for twelve months to come, and that *the proceeds*be applied to my debts.” The debts of testator, exclusive of those for which he was surety, exceed twenty-three thousand dollars. The sixth clause requires “all the property, both real and personal, named in the third', fourth and fifth clauses, to be kept together until the eldest soil, James L. Brown, arrives at the age of twenty one, then to be equally allotted, and drawn for by my beloved children.”

*J. J..*Caldwell, for the appellant,

cited 2 Yesey, jun., 577 ; 2 Beames, 236.

An annuity charged on leasehold estate is a bar to dower. Cited Lambert on Dower, 69, 70; 3 Bro. Ch. Cases, 355 ; *2*Johnson’s Ch. Rep. 458.

Devise of an annuity, and the use of a house, held a bar to dower. Ambler, 682. Id. 730 ; 4 Mad. Rep. 119.

*Fair,*contra,

cited *Whilden*vs. Whilden, Riley’s Ch. Cases, 205.

*327Curia, *per*Dunkin, Ch.

In affirming the decree of the Chancellor, the court would only add to the authorities cited, the case of *Whilden*vs. Whilden, Riley’s Ch. Cases, 205. The testator bequeathed to his wife, one thousand dollars, as soon as the money could be collected. He then directed the whole of his estate, real and personal, to be sold, and the money laid out in bank stock, for the support of his children, until his youngest child should come of age, (fee. and then the money to be equally divided among all his children. It was argued that the widow must elect between the legacy and the claim of dower.

Chancellor DeSaussure says, ‘‘dower is a provision made by law, for the support of the widow. A legacy is a provision made by affection for the better support of the wife. As the right of dower is a clear legal right, an intent to exclude that right, must be demonstrated by express words, or by clear and manifest implication, and in order to exclude that right, the instrument must contain some provision inconsistent with the right to demand dower.” After reviewing the authorities, the Chancellor decided that the widow was *entitled both to her*dower and the legacy.

The appeal court held that the conclusion of the Chancellor was amply sustained by the authorities cited.

The decree of the circuit court is affirmed, and the qp-, peal dismissed,

Johnson and Harper, Chancellors, concurred,

Johnston, Ch. absent from indisposition,