#### Lucy Reed *versus*Lucius Dickerman.

A testator devises to his wife and daughter the southerly half of his dwellinghouse, and the north buttery in the house, during the wife's life, and to the wife one half of his indoor moveables and one cow which, or some other in the room of it, he orders his sons to keep free of expense to her, during her life $ and to the wife and daughter a heifer 5 and he directs his sons to be at one half of the expense of keeping the heifer for their mother. The real estate of the testator was appraised at $10,529, and the personal at $647$ his debts amounted to $ 3000; one half of the indoor moveables was worth $ 95 5 and the fee simple of the whole dwellinghouse, less than $1400. It was *held,*that this provision for the wife was intended to be in lieu of dower.

*It seems,*that where a devise is made to a wife in lieu of dower, the *St.*1783, *c. 24**§ 8, presumes her acceptance of the devise, unless she does some positive act showing her election to have dower.

Such election should be made in a reasonable time 5 but what is a reasonable time, *queere.*

In the case of the will above mentioned, the widow made no demand of dower until fourteen years after the probate of the will, and in the mean time she lived in the testator's dwellinghouse, received the personal property bequeathed to her, disposed of some of it, and enjoyed the other provisions in the will in her favor 5 and more than a year before the demand of dower, a decree of the probate court was made, assigning to her by definite bounds the real estate devised to her. It was *held,*that after all this it was too late for the widow to waive the devise and claim dower.

Writ of dower. The following facts were agreed to bj the parties.

Elijah Réed, the late husband of the demandant, died seised in fee of the land described in the writ. On August 8, 1816, he made his last will, containing the following provisions : — “I give and bequeath to my beloved wife Lucy Reed, and Alice Reed my daughter, one half of my dwellinghouse where I now live, the southerly part of said house, and the north buttery in said house, during my wife’s natural life. Also to my beloved wife I give and bequeath one half of my indoor moveables. I also give and bequeath to my beloved wife one cow, which I order my sons Solomon and Elijah to keep for *151her, or some other in the room of it, free from any expense to her during her natural life. Also I give and bequeath to my wife and my daughter Alice Reed, one heifer a year old last spring, and hereby order my two sons Solomon and Elijah to be at one half of the expense of keeping said heifer for their mother.” 'The will was proved in September, 1816. Soon after the death of the testator, the demandant selected a cow from the stock on the farm, and that cow, or another instead of it, has ever since been kept on the farm for her by her sons Solomon and Elijah, and she has had the use of it ever since, until within a year past, when she sold it. A heifer was provided for her and Alice by Solomon and Elijah, and was kept by them for their mother until it died, which happened soon after the probate of the will. The demandant has always since the death of her husband, been in the possession of the indoor moveables. She has always lived in that part of the house which was devised to her, and Alice has lived with her. It appeared by the records of the probate court, that in March 1829, the judge of probate appointed a committee to set off by metes and bounds and define that part of the dwellinghouse of the testator unto his widow and Alice, which was devised to them for their use during their natural life, together with the cellar, privileges and appurtenances ; and in April 1829, the committee made a return showing their performance of the duty required of them. The real estate of the testator was appraised, soon after his death, at $ 10,529, and the personal at $ 647 ; his debts amounted to a sum between $ 3000 and $ 3600 ; the real estate given to Alice was worth $ 900 ; one half of the indoor moveables was worth $ 95 ; and the fee simple of the whole dwellinghouse was worth between $ 1300 and $ 1400. A demand was made upon the defendant, on July 5, 1830, to assign dower to the demandant.

On the foregoing facts, or such of them as would be admissible in evidence on a trial before a jury, and on such inferences as may be legally made from them, the case was submitted to the Court; and if in the opinion of the Court, the demandant was entitled to recover, the defendant was to be defaulted ; but otherwise the demandant' was to become non-suit.

*152
      *Oct. 29th.*

*Eddy*for the demandant.

• At common la«v the devise would not bar the widow of her dower nor put her to an election. There must either be a plain declaration in the will, that the provision therein made for the widow is in lieu of dower, or it must be manifestly inconsistent with the will, that she should claim, dower. Nothing in the will now in question, or in the circumstances of the case, shows that the devise was intended to be in lieu of dower ; but the contrary is proved by its disproportion to the whole of the testator’s estate, and its inadequacy to the support of the demandant. *2*Madd. Ch. Pr. 47, 58; *Herbert*v. *Wren, 7*Cranch, 371; *Strahan*v. *Sutton,*3 Ves. 249; *Lawrence*v. *Lawrence, 2*Vern. 365; 1 Eq. Cas. Abr. 218, and 3 Bro. Parl. Cas. 470; *Arnold*v. *Kempstead, 2*Eden’s Rep. 236; *Adsit v Adsit, 2*Johns. Ch. R. 448; *Jackson*v. *Churchill, 7*Co wen, 287; *French*v. *Davies, 2*Ves. jun. 572. Our *St.*1783, c. 24, § 8, varies from the common law, inasmuch as it enacts that if the widow claims her dower, she shall receive no benefit from the testamentary provision unless it appears by the will plainly the testator’s intention, to be in addition to her dower ; whereas, at common law, such provision must appear plainly by the will to have been intended in lieu of dower The demandant does not claim under the will, but by bringing this action she waives her right to the testamentary provision.

The demandant has not elected to take under the will. I does not appear who made the application to the judge of probate in 1829, or that the demandant had any notice of it, or that she even knew of the will. It is true she lived in the testator’s house, but that may be considered as equivalent to receiving one third of the rents and profits to which she wa« entitled under *St.*1816, c. 84.

At least, if she did elect to take under the will, it was done unadvisedly and. without a knowledge that the devise was worth much less than her right of dower ; and the Court will not consider such election binding upon her. Clancy, 249; *Wake*v. *Wake,*1 Ves. jun. 335; 4 Kent, 56; *Larrabee v. Van Alstyne,*1 Johns. R. 307; *Duncan*v. *Duncan,*2 Yeates, 302; *Dillon*v. *Parker,*1 Swanst. 359; *Pusey*v. *Desbouverie,*3 P. Wms. 315.

*153
      *W. Baylies*and *Miller,*

for the tenant, to show that the demandant had elected to take under the will, cited *Van Orden*v. *Van*Orden, 10 Johns. R. 30 : — and to the point that the extrinsic evidence was inadmissible to aid in construing the will, *Doe*v. *Brown,*11 East, 441; *Walpole*v. *Cholmondeley,*7 T. R. 138; *Jackson*v. *Sill,*11 Johns. R. 213; 3 Stark. Ev. 1013.

*May term,*1822, *at Plymnut1*

Morton J.

drew up the opinion of the Court. The demandant is clearly entitled to recover her dower, unless she is barred by the provision made for her in the will of Elijah Reed. In that is given to her a freehold estate in a part of the dwellinghouse of the deceased, and also certain personal property. The will contains no declaration of the testator’s intention, whether this was to be in lieu of, or in addition to the dower of his widow.

By *St.*1783, *c.*24, § 8, “ the widow, in all cases, may waive the provision made for her in the will of her deceased husband, and claim her dower, and have the same assigned her, in the same manner as though her husband had died intestate, in which case she shall receive no benefit from such provision, unless it appears by the will *plainly,*the testator’s intention to be in addition to her dower.” This is a material alteration of a rule of the common law applicable to this case. By that rule a devise or bequest to a widow is presumed to be in *addition*to her dower, unless it *clearly*appears that it was the intention of the testator that it should be in *lieu*of dower.

The wife has a legal interest in her husband’s estate, of which she cannot be divested without her own consent. After his death she is legally entitled to dower, unless by some act of her own during his lifetime she has barred her right or after his decease voluntarily relinquished that right. A bequest or devise is deemed a bounty, and not the payment or satisfaction of a pre-existing debt or obligation. A gratuity cannot extinguish a legal right. Hence the common law rule, that a donation in a will does not operate as an extinguishment of the right of dower; but is presumed to be a gratuity in addition to the existing legal right. But a donation may be made on a condition, and that condition may as well be the relinquishment of the right of dower, as the performance of any other act. *154And if a donation in a will be made on the *express*condition that dower shall not be claimed, or if it clearly appear from the will, that it was the intention of the testator that the widow should not have both the donation and the dower, then the donation shall be taken to be in lieu of dower, and the widow cannot hold both. She may have her election. She cannot claim under the will and adversely to it. But she is not thereby divested of her right of dower, but may have her election between her dower and the provision made for her in the will.

By the clause of our statute just quoted, this presumption of law is reversed and the provision in the will is deemed to be in *lieu*of dower, unless it *plainly*appears that the testator intended it to be in *addition*to it.

In this case there is no express declaration that the testa mentary provision was intended to be in addition to dower; nor can any such intention be inferred from all the will taken together. The inadequacy of the provision alone will not justify such an inference.

The plaintiff must therefore take the devise and bequests in the will, unless she seasonably elected to waive them. The statute seems to presume an acceptance. There is some positive act to be done by the widow, indicating her election, before she can be entitled to dower. The demand required to be made thirty days before an action can be commenced, might be considered an election where no election had previously been made.

Within what time shall a widow be holden to waive the provision made for her in the will, or to be bound by it ? In New York, the widow shall be deemed to have elected to take the testamentary provision, unless she enters upon or commences a suit for her dower within one year after her husband’s death. In Virginia, she is allowed nine months, and in Vermont, only sixty days, in which to make her election. And on failure to do it, she is confined to her dower at common law. Our statute has not fixed any precise time for the election. But doubtless the widow would be holden to have accepted the testamentary provision unless she waived it in a reasonable time, that the settlement of the estate might be closed and distribution made among the heirs. What shall *155be deemed a reasonable time, not being fixed by statute, cannot be accurately defined by any general rule, and need not now be discussed. For we are all of opinion, that under the circumstances of this case, the demandant is precluded from waiving the provisions of the will and claiming dower.

Fourteen years elapsed, after the probate of the will, before any demand of dower was made. During the whole of this time she occupied the real estate which was devised to her. The personal property bequeathed to her was received by her, and some of it has been disposed of by her. The benefit of the other provision in the will in her favor had been enjoyed by her. A decree of the probate court has been made, assigning to her by definite bounds that part of the real estate which was devised to her. And the whole estate has passed out of the hands of the original devisees. We think, after all this, it is too late for the widow to waive the provision made for her in the will, and claim her dower.

It is true that in equity the widow may sometimes be relieved from an improvident election. But this can only be done where some deception or fraud was practised upon her, or at least where she acted under an ignorance of the facts, or a misapprehension of her legal rights. But here is no evidence of any deception, or misapprehension, or even ignorance of the circumstances of the case. The plaintiff chose to regard and carry into effect the provisions and directions contained in he" husband’s will. No desire to avoid it on her part was known to exist till many years after the death of her husband, and not until the estate had passed from her family into the hands of strangers. We are entirely clear that she cannot now change her determination, waive the provisions of the will and claim her dower.1

See *Crane*v. Crane, 17 Pick. 422; *Delay*v. Vinal, 1 Metc. 57; *Thompson*v. *McGaw,*ibid. 66. By Rev. Stat. *c.*60, § 11, the widow is required to make her election within six months after the probate of the will.