Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-11-21

| On the Sd of January 1856, Amos Williams, the
testator and Elizabeth Bell the complainant, in con-
temptation of marriage, which was soon after con-
summated entered into marriage contract. 1t pro
vided that all her property, of every kind, should
be secured to her, and returned if she should
vve, without any account, however for interest or
| hire Then there is this stipulation:
Second, Said Williams agrees that at the termi-
nation of his life should she survive him, she shall
have iORe-Srh part Of all the prSORqt property or
chooses in action of which he may die possessed of
entitled to, and more saving and reserving the
right of DOVER"
On the sd of January 1857, Williams made his
will and died possessed of large real and person
al estate He gives all the property that came by
her and also life estate in two slaves and the home
place He makes no reference to the marriage con-
tract 1t will be that he Omits to give her any
part of his estate, except life interest in the home
place and the two slaves. He disposes of all his
property among his children. She did not dissent
from the viii, but in the bill claims under 1t the
provision made for her. and addition thereto the
one-sixth of her personal estate, and dover in the
realty under the marriage contract. All this was
allowed to her by the decree of the Chancellor and
the defendants consisting of the executor and all
the legatees) appealed
There can be no doubt without reference to the
rejected testimony, to his understanding and in
tention, that at the time the will was made he
sidered the provision he making for his wife
out of his own property to be in lieu of the
sixth of his estate and the dover secured to her
in the marriage contract; or rather that he
thought the provision made in the will all she
could get, and that he not bound by the
tract But it is very clear that he could not by his
will effect the binding force Of his antenUpual set
Element That was beyond his reach. and could not
be annulled So we think the chancellor very prop
ery held that the complainant was entitled to one
sixth of all the personal estate. That is secured to
her in the contract and she cannot be deprived of
it, without her consent, by his will otherwise.
But she is to have "aO more" He had five children,
and that properly suggested the proportion she
should have. The object was to make her equal
with his children-to her, in all events, the
same law would allow, in he should die in
teState. But this designation of the part she
is to have of his personal estate and the restrictive
words employed not to preclude the legal rights
Of dover in his real estate. That is saved and re
served to her The chancellor so constructs that
clause as to let her in for dover, in the events
which nave TRANSFERRED We think that is erroneous.
Her right Of dOloer is not excluded but reserved in
the deed. But what is that right? 1t is to have
third for life, of the land in case of inestaev or
when there Is will, and the provision made is IN
satisfactory TO the widow and she diSSeHtS in proper
time Neither of these cases exists here and conse-
ouenty she has no right of dover according nor
as we think, by the contract The marriage con
tract does not give her sixth of his personal es-
tate and one-third of his land DOVER but it only
saves to her the right ofdower." That is in case
he dies iltestaie or without a viii not max
inc satisfactory provision for her. The right given
a widow by the law in such cases, to claim dover,
is reseyUed- not excluded by the words mo more
or the other provision made for her. But she can
not claim under the WILL anything not given IN 1t,
nor can she claim any rights against 1t, without
dissenting She is therefore not entitled to dover,
by force of the contract properly construed nor by
law, there is intestacy, nor dissent from the
will.
The next and most important question IS, whether
she can take the provision made for her in the Will
outside Of the settlement viz to two slaves and the
home place for life and outside of the Will, and
der the deed one-sXth of his personal estate The
chancellor thought she could and decreed, We
are Of different opinion. The will dsposes of the
whole personal estate others, the sixth to which
she is EMIT ed by the deed as well as the other five
slXths. She claims the onesixth against the WILL
ard also the requests to her under 1t. The one |
sixth under the settlement, is disposed of by the !!
Will IN which other property to which she was not
entitled by the deed, Is given to her If she take the
latter she must surrender the former 1t is case for
election. Storys Equity. lO75-76; 81 Bon Die
400. This she must make and cannot have both
she is entitled to full information as TO her rights
before she exercises this privilege She may not Sc
lect which she will take or she NAV do so after an
account 1t viii not be controvered that the tesla
tor may have addeG if he saw fit. TO the provision
made for her in the settlement But whether he so
intended is the question. We think clearly he did
not True he added two slaves and home for life,
hut at the same time gave to others the whole of
his personally including her one-siXth.
There can be no doubt as to his intention that he