Kennedy v. Mills

13 Wend. 553 | N.Y. Sup. Ct. | 1835

By the Court,

Savage, Ch. J.

Where a testamentary provision is made for the widow, which is intended to be in lieu of dower, she has her choice—she may take the provision in the will, or her dower, but cannot have both. There is much learning in the books, as to what shall be considered a provision in lieu of dower, and what shall be considered as given to her in addition to her dower. Great liberality has been indulged in that respect, and the legacy or testamentary provision will not be adjudged to be in lieu of dower, unless such manifestly appears to have been the intention of the testator. In this case there is no room for doubt on that subject; the testator has expressly declared, “All this I give to my said wife, during her natural life, in lieu of her dower.’’ She accepted what was given to her by the will, and has enjoyed it as in fee for many years, but how long the case does not informs us. On the present defendant refusing to continue the annually contributions, she seeks to recover her dower.

The provision made by the husband is called an equitable bar, but I apprehend it is also a legal bar. Many of the cases on this subject are in equity; but, as we said by Lord Redesdale in Birmingham v. Kirwan, 2 Sch. & Lef. 451,there is no difference in principle in the decision of the courts (of law and equity.) The question has been decided in courts of law, wherever the form of proceeding admitted it. In 2 Leon. 272, where a provision in bar of dower was made for the wife after marriage, and consequently she was not bound to accept it,it was held that if the wife agreed to such provision,by entry the death of the husband, she might be barred in a writ of dower; for her election bound her, though her agreement did not. So in Cro. Eliz. 128, where a wife brought an action of dower, she was barred of a rent charge which had been devised in lieu of dower. She had made her election, and could not have both provisions. The principle is acknowledged as well at law as in equity, and the only question that can arise in such cases, is whether the testamentary provision was given in lieu of dower. There is no question of that kind in this case, for it is expressly declared to be so given. Our revised statutes contain the same principle, and I apprehend it is equally to be enforced by all courts. The wife may, by her assent before marriage, be barred by a pecuniary provision ; if,after coverture,lands or money be given in lieu of dower, she may elect which she will take, but she should not be entitled to both. So also, if the provision be by will; and where she shall be entitled to an election, unless she commence proceedings to recover her dower within one year after her husband’s death, she shall be deemed to have elected the provision which has been given in lieu of dower. 1 R. S. 741, 2, § 11, 12, 13, 14. This subject has been discussed in several cases in this court. 1 Johns. R. 307. 10 id. 30. 7 Cowen, 287.

It is no answer to say that she has not received all that was intended for her. Suppose a pecuniary annuity had been the testamentary provision which she had elected to take, and had actually received it for several years, she is not at liberty to prosecute for her dower on neglect to pay the annuity ; but must institute some proper proceeding to compel payment of the annuity. So in this case, the plaintiff may have a remedy to compel a performance of the provisions of •the will; but by electing to receive that provision in lieu of dower, no action for dower can be maintained.

Motion to set aside nonsuit denied.