1 R.I. 446 | R.I. | 1849
The plaintiff, in this action of dower, claims to recover *450 her dower in certain real estate described in her declaration, whereof her late husband, Amory Chapin, was seized as an estate of inheritance at a time during his intermarriage with her, and as to which he died intestate.
She is therefore entitled to recover her dower under the first section of an act relating to dower and the assignment thereof, (Rev. Stat. 1844, p. 188,) unless she is barred of her dower under the thirteenth section of that act, p. 191; which provides, "if any estate, real or personal, be conveyed by deed, or the same be devised or bequeathed for the jointure of the wife in lieu of her dower, to take effect in her own possession immediately on the death of her husband and to continue during her life, or in fee determinable by such acts only as would forfeit her dower at common law, such conveyances shall bar her dower of the residue of the lands, tenements and hereditaments, which her said husband at any time possessed." And this statute provides, that the widow may, at her election, waive her jointure and demand her dower; provided the same be done in writing within twelve months after the probate of the will, if there be one, and if not, within twelve months after the granting letters of administration on her deceased husband's estate.
The plaintiff's husband by his last will and testament made provision for his wife, and therein declared, that the devises and bequests to his wife were "to be in lieu of her dower or other interest in my estate."
The plaintiff accepted of this provision in her husband's will in lieu of her dower, and did not waive it, as she might at her election under the statute.
The question therefore to be decided upon this state of facts is, whether the plaintiff is, by accepting this provision in her husband's will, barred from recovering her *451 dower in the demanded premises, which were not devised in said will, and as to which her husband died intestate.
This must be determined by a fair and sensible construction of this will, and a reasonable application of this statute to this provision by the testator for his wife in lieu of her dower.
The rule of construction unquestionably is, that the intention of the testator must govern, when that intention can be legally carried out.
The testator's language should not only receive a sensible interpretation, but should be construed with reference to his whole will, and to the subject matter relative to which he speaks.
When he uses terms and words of clear and definite import, and which also have a technical and legal meaning, it is reasonable to presume that he understood the meaning of the words which he used, and that he intended that these words should be understood according to their technical and legal meaning. If he had intended that they should carry a different import, it may fairly be supposed, that he would have limited, varied or applied them so as that they should convey a different import, and express a different intention. If he had intended that the provision in his will for his wife should be in lieu of her dower in a particular estate, or only in the real estate which he then possessed it is but reasonable to suppose that he would so have expressed his intention.
Although the testator's will could not operate on real estate, by him acquired after its execution, unless such real estate was expressly devised by the will; yet, in ascertaining the intention of the testator, it should be *452 borne in mind, that he was making provision for his wife in lieu of her right of dower in his estate, the extent of which right could only be determined at the death of the testator.
The word dower is unambiguous; it has a fixed, definite, and legal meaning; and it is determined by statute to apply to and extend to all the lands, tenements and hereditaments, whereof the husband, or any other to his use, was seized of an estate of inheritance, at any time during the intermarriage, to which the wife shall not have relinquished her right of dower by deed; except in cases provided for in the thirteenth section of said act.
The right of dower, therefore, is an inchoate right, which can be rendered definite and certain only by the act of the wife and the death of the husband. In the absence of all other evidence, therefore, to show a different intention on the part of the testator, it is but reasonable to presume, that when he made provision in his will for his wife, "to be in lieu of her dower in his estate," he intended her right of dower in all his estate, in the technical and legal acceptation of that term.
This phraseology is not qualified or limited by any other words in the will. For the words which follow, ("or other interest in my estate,") cannot certainly be reasonably construed to limit the legal meaning of the words, "her dower;" but must be construed to apply to all contingent interest which the plaintiff might have in her husband's estate.
It was contended, that the provisions in this will in lieu of dower, applies only to the real estate which the testator had at the date of his will; because, the testator did not, by express terms, devise real estate to be thereafter *453 acquired. The fallacy of this reasoning must be apparent, when we consider that it does not apply to the whole subject matter in its full extent. This provision of this will for the plaintiff, was intended to be in lieu of her dower in her husband's estate. The will, at its date, vested in her no absolute right, only a contingent right; even the certainty and extent of which, depended on the death of her husband and her acceptance of this bounty, in lieu of an inchoate right, the extent of which would be determined and rendered certain by law and her own election, on the death of her husband.
The language of the testator in relation to this clause in his will being clear and his intention definitely expressed, and there being no ambiguity in it, the testator's letter, inclosed with his will, cannot be admitted as evidence to explain his intention as expressed in his will; or, to control or alter the will. It has none of the legal requisites of a testamentary devise; and it cannot alter, enlarge or diminish, the rights of parties under the will.
If this be the true construction of this clause in this will, then, the only remaining question is, whether the plaintiff, by accepting this provision in her husband's will, in lieu of dower, is barred of her claim of dower in the demanded premises? Upon this point, we are clearly of opinion, that her claim of dower is barred by the provisions of the thirteenth section of said act. The provisions of this section are as broad as the provisions of the first section, which gives and determines the right of dower.
By accepting this provision in her husband's will, and by not waiving it, as she might have done at her election, and demanding her dower within the time provided by *454 this section, she is, by the express terms of the statute, barred of her dower of the residue of the lands, tenements and hereditaments, which her said husband at any time possessed.