2 Denio 430 | N.Y. Sup. Ct. | 1845
The testator, in this case, devised his real and personal estate to his wife during her widowhood,. and after her death or remarriage he gave all his property, except some small legacies which were bequeathed to his daughters, to his three sons. But he did not state in his will that he intended this provision for his wife, during her widowhood, to be in
There is no natural equity in the principle which gives to the husband the right to dispose of his whole personal estate, the joint earnings of himself and wife, to her exclusion; nor in that which gives him the power to dispose of the whole real estate except the use of one-third thereof during the life of the wife. Hence the courts have always been astute in protecting the widow’s right to the small pittance which the rules of the common law had given to her in the estate of her husband after his death. Hence, as Lord Bacon stated nearly two hundred and fifty years since, the tenant in dower was so much favored in the courts that at that early period it had become' “ the common byword in the law, that the law favoreth three things, life, liberty and dower.” (Bac. Read. on the Stat. of Uses, 38; Jenk. Rep. 7 Cent. Ca. 16.) The right of dower being a legal flight, and thus favored by the courts, the wife cannot be deprived of it by a testamentary disposition in her favor, in the nature of a jointure, so as to put her to her election, unless the testator has declared the same to be in lieu of dower, either in express words or by necessary implication. In the cases of Fuller v. Yates, (8 Paige's Rep. 325,) and of Sandford v. Jackson, (10 id. 266,) I had occasion to examine most of the Cases on this-subject which had then been decided, and I then concluded, as the result of all the cases in this state and in England,1 that the settled^ rule of. law was,-that to compel the widow to elect between the dower and a provision made for her inrihe will where the testator had not in terms declared his intention on the subject, it was not sufficient that the will rendered it doubtful whether he-intended that she should have her dower in addition to that provision; but that to deprive her of dower the terms and provisions of the will must be totally inconsistent
In the language of the vice chancellor and master of the rolls
For these reasons I think we cannot deprive the wife of the testator of her dower in the lands of her deceased husband subsequent to her marriage, consistently with the settled rule of law on this subject; and that the judgment of the supreme court was right and should be affirmed. .
On the question being put, “Shall this jpdgment be reversed?” the members of the court voted as follows:
For reversal: Senator Deyo.
For affirm.an.ee: The President, The Chancellor, and Senators Backus, Barlow, Beers, Bóckee, Burnham, Corning, Emmons, Faulkner, Folsom, Hand, Johnson, Lester, Lott, Porter, Sedgwick, Smith and Talcott—19. '
Judgment affirmed.