10 Paige Ch. 266 | New York Court of Chancery | 1843
The common law principle upon which the widow is compelled to elect, between her dower- and a provision made for her in the will of her deceased husband, is well settled, and the only difficulty arises in applying it to the varying circumstances of each particular case. Where the testator in terms declares that the provision made in favor of the wife is in lieu of dower, if she accepts the provision she cannot have her dower in the testator’s estate also ; even in those cases where the assignment of her dower would not interfere with any other provision of the will, except such declared intent of the testa
The question has been frequently discussed, in England, whether the charge of a legacy or annuity to the wife upon the husband’s real estate, or upon the proceeds thereof, was sufficient to constitute a case for election, and the decisions on that subject have been in conflict. In the case of French v. Davies, (2 Ves. jun. Rep. 572,) which came before Lord Alvanley, in 1795, he refers to the cases previously decided. And he then said it was hardly possible to reconcile the cases of Foster v. Cook, (3 Bro. C. C. 347,) and Pearson v. Pearson, (1 Idem, 292,) with the cases of Arnold v. Kempstead, Villareal v. Lord Galway, and Jones v. Collier, (Amb. Rep. 466, 682, 730.) His decree, however, was in favor of the widow, and in accordance with the decision of Lord Loughborough and Lord Thurlow in the two first mentioned cases. And that decision was followed by Sir William Grant, in Greatorex v. Cary, (6 Ves. Rep. 615.) The subsequent case of Chalmers v. Storil, (2 Ves. & Beame, 225,) decided by the same learned equity judge, eleven years afterwards, is apparently in conflict with his decision in Greatorex v. Cary. But, upon examining the two cases, it will be seen that in the first case the charge of the annuity was upon the testator’s real and personal estate general
I am not prepared to say that such a distinction does not in fact exist. For the principle upon which the widow is compelled to elect is the same as that upon which this court compels an election in other cases. And if the testator should devise all his real and personal estate to his children, in general terms, to be equally divided between them, such a devise would not be held to include a particular estate which one of the children had in some of his father’s real property ; so as to compel him to elect between that particular estate and the portion devised to him by the will. On the other hand, if the devise to the children was of a particular farm, and of all the testator’s personal property, to be equally divided between them, one of the children would not be permitted to set up a particular estate in that farm as belonging to himself, and also to have an equal division of all the rest of the property, except that particular estate which was neither excepted norreferred to in the will; but he would be put to his election. (See Harrington v. Hughes, 1 Paige, 569.) Sir Thomas Plumer, however, does not appear to have acted upon this distinction in the subsequent case of Dickson v. Robinson, (Jacob’s Rep. 509,) where the devise of the testator’s real and personal estate was made to his wife in trust for herself and children equally; for in that case he compelled the widow to elect.
The case of Miall v. Brain, (4 Mad. Rep. 119,) was placed upon the ground that it clearly appeared that the testator intended the daughter should have the sole and exclusive occupancy of a particular house • and that a devise of his real estate to the trustees must necessarily be discharged of dower, to enable them to give the daughter such such exclusive use of the house. And this rendered it certain that the testator must have intended to exclude the widow from a claim of dower, in the estates devised to the trustees,
In the more recent case of Dawson v. Bell, (1 Keen’s Rep. 761,) where the testator devised all his freehold and copyhold estates, &c. to trustees upon trust to receive the rents and profits for the maintenance of his children, subject to an annuity to his wife so long as she should remain his widow, until the youngest arrived at the age of twenty-one years, and bequeathed his household goods and furniture to his wife so long as she should continue his widow, Lord Langdale decided that the wife was entitled to dower in addition to the provisions made for her in the will. He said in that case, that it could not reasonably be doubted that the testator had no intention to leave to his wife her claim to dower, when he made the will • but that the question was whether the devise was of such a nature as to be inconsistent with the enjoyment of dower by the widow. In other words, his decision was placed upon the ground assumed by this court in Yates v. Fuller, (8 Paige’s Rep. 331,) that it was not sufficient, to exclude the claim of dower, that the testator if he had contemplated the subject of dower would probably have inserted a provision in his will declaring the dispositions in her favor to be in lieu of dower; but that to put her to elect, the court must be satisfied that he intended to exclude such claim, either by a declaration to that effect in the will, or by the insertion of some provision therein which was inconsistent with her claim of dower.
It is difficult to say what the precise meaning of the testator was in devising his property to his wife and others, in trust for her use, so far as the real estate was concerned, during her widowhood and until the youngest child became of age. But as no charge is made on it, for the support of the children in the mean time, it must be considered as an absolute devise ; which was turned into a legal estate in her, during the minority of the youngest child, under the provisions of the revised statutes. (1 R. S. 727, § 47.) The fact that no provision is made for the children during their minorities does not show any intention, however, to deprive their mother of her dower after they became of age. And the devise of all his real estate to her, in general terms, for the same time, would not indicate any intent on the subject of dower previous to the time when-the children are to receive their shares of the estate in possession. For until the youngest of them became of age it was wholly immaterial whether she took the whole real estate under the will, discharged of dower, or took two-thirds of it under the devise and the residue under her common law right of dower. And the question of election can only arise when the two claims come in conflict with each other so as to affect the interests of other parties.
The case of Stark v. Hunter, (1 Saxton's Ch. Rep. 216,) I have not been able to find. But taking it as stated in the appellant’s brief, it appears to be inconsistent with all the cases on the subject either in this state or in England. For an absolute devise to the wife during her widowhood,
After examining all the cases within my reach, upon the subject of the widow’s right to claim dower in addition to the testamentary provisions in her favor, and particularly