| New York Court of Chancery | Jan 15, 1831
The important inquiry in the case is*whether the former widow, now Mrs. Hunton, is entitled to dowel in the tavern house and lot devised to her by the will of her former husband, Benjamin Weller.
On the part of the complainants it is insisted, that the devise in the will was intended to be in lieu of dower, and was accepted by the widow ; and that having by her second marriage forfeited the bounty of her first husband, she cannot now turn round and •claim dower in the very property which she took and held as a devis* under the will. While on the other hand, the converse of these propositions is contended for as true, on the part of the defendants.
Considering this case as at common law, and independent of our statute, the two questions that present themselves are, 1. Did the testator intend the devise to be in lieu of dower ? and, 2. Did the widow accept of the devise ?
Notwithstanding some cases to the contrary, I think it may be laid down as a settled rule at the present day, that express words of exclusion are not necessary in a will, in order to bar dower. It
Where there are no express words of exclusion, as in the case riow before the court, the intention of the testator is to be gathered from circumstances. No general rule can be adopted which will properly or safely apply to the great variety of cases that axe from time to time occurring in the community. That which approaches nearest to such rule, is the principle already adverted to, that the intention must be so plain as not to admit of reasonable doubt. The claim of dower must be inconsistent with the will, or so repugnant to its provisions as to disturb and defeat them. This principle runs through ail the cases, from that of Lawrence v. Lawrence, 2 Vern. 365, to the latest of the English decisions, and has been adopted by the most learned judicial tribunals of our country. To review the authorities in detail is not necessary for my present purpose, and might well be looked on as an affectation of learning. They were lately reviewed with great clearness by Chancellor Kent, in the case of Adsit v. Adsit, 4 Johns. C. R. 448. The result from the whole was, that where there are no express words of exclusion, the intention to exclude must be beyond reasonable doubt. And in a late work, coming over the subject of dower, the same principle is recognized : 4 Kent's Com. 57.
The question then recurs, Did the testator intend the devise to’be in lieu of dower, in the premises thus devised to his wife?
The provisions of the will are very brief and simple. He appropriates all his real and personal property, save the tavern house with the furniture and stock belonging to it, to the payment of debts. The tavern house with the furniture and stock he gives to his wife during her natural life, provided she remains his widow. Or in other words, he gives to her all his clear estate after the payment of debts, subject to be defeated by her subsequent marriage. He left five children, all under age—the youngest an infant. It would seem that he placed great confidence in his wife, who was the mother of those children. He
I think the manifest intention of the testator was, that the devise to the wife should be in lieu of her dower, at least in the premises thus devised. He never intended that she should hold one third part of this tavern house as dowress, and the remaining two thirds as devisee. It was one property, not susceptible of convenient division. The devise was of the whole ; and the object was one entire object, the benefit of his wife and children. Some of the English cases have been liberal in support of the widow’s claim for dower; but I do not find one that goes so far as to maintain, that where certain property is given to a wife, during her widowhood, that she is also entitled to claim dower out of that same property. The two claims are inconsistent, and cannot stand together. In the case before the court, the devise to the wife is different in its nature and consequences from her legal right to dower; and I do not see how the two claims could be exercised as to the same property, at one and the same time. In the case of Birmingham v. Kirwan, already cited, Ld. Redesdale ruled that a devise to the wife for life of certain lands and a house, with directions to keep it in repair, was inconsistent with the assertion of a light of dower in the same lands ; and she was accordingly put to her election. And the same doctrine is held by Sir Thomas Plumer, the vice chancellor of England, in the later case of Dorchester v. Effingham, Coop. Eq. Rep. 319. On this question, whether where the whole of the lands are devised to the wife, she may take two thirds of them as a devisee under the will, and the remaining one third under her title to dower, there are some ingenious remarks in 1 Roper on Husband and Wife, 561; and the author seems to conclude that the wife may take in both capacities in the same property. But I am not satisfied with the reasoning of the author. The policy of the great mass of the English cases appears to have
2. Upon the question of acceptance, I incline to think that the case is with the complainants. The widow has treated the property as her own in every respect. She has altered and improved it. She has leased it out for several years, to a number of persons, reserving rent to herself. She has advisedly taken measures to enhance the annual value of the property, evidently for her own benefit. I should consider this an acceptance of the provision under the will and according to the terms of the will, and binding upon the widow, unless it could be shown that she had mistaken her rights, or was not properly apprised of them. There is nothing in the case to induce such a belief. The idea thrown out, that as widow she was entitled to remain in the mansion house, free of rent, until dower was assigned her, and that, in favorem dotis, she may be considered as remaining in under that provision of our statute, and not as taking under the will, cannot be entertained. Her acts while in possession were directly repugnant to such a pretension, and are consistent only with the fact, that she considered herself as holding under the will, arid therefore, the property as her own freehold.
Looking at this case, therefore, on common law principles merely, I am of opinion that it was plainly the intention of the testator to exclude the widow from dower in the premises; and that the devise, intended to be in lieu of dower, was accepted by the widow in conformity with such intention ; and that, having defeated her own rights by the subsequent marriage, she cannot now claim her dower; and consequently, that the property will go over, according to the directions of the will, to those who are lawfully entitled—by which, 1 understand, the children of the testator, or those representing them.
But there is another view of this case, which it is important to consider. The difficulties experienced by our courts of justice in
It is admitted that if this case fall within the provisions of this statute, the question is at an end; for it is not pretended that any dissent in writing was filed by the widow, pursuant to the act. The statute is not free from ambiguities, nor is it as extensive in its application as was, perhaps, originally intended: but it appears to the court to admit of a just and rational construction, and that in such construction the present case is fairly embraced. The evil that existed was one generally understood, and has already been adverted to. The object of the statute was to. remedy the evil, and to compel the widow, in all cases where any lands or real estate had been devised to her, to elect between the bounty of her husband and her legal rights, and to prevent her; from enjoying both; and I am of opinion that the object of the statute is fully answered, so far as it concerns all lands and real estate embraced in the will of a testator. How far the statute may apply to after acquired lands, or other real estate, of which
It was argued, that, from the terms of the act, it was intended to operate only in favour of devisees of “ other lands and real estate devised in and by the said willand that it was not intended to bar the dower in the lands devised to the widow herself; or at all events that the act docs not necessarily call for such a construction; and that it should be construed strictly, inasmuch as it goes to take away a legal right. But the act not only uses the expression “ other lands and real estate devised in and by said will,” but it expressly says, that the widow shall not be entitled to dower in any lands or real estate devised by her said husband, “ unless she shall dissent in writing as aforesaid.” There is certainly an ambiguity in the act; but taking the whole together, I think the intention of the legislature is manifest, that the widow should not be entitled to her dower in any of the lands devised by a will, where, under the same will, she took an interest in lands or real estate as a devisee; and such a construction appears to me to comport best with the words of the act. T am therefore of opinion that, under the provisions of our statute, the defendant, Mrs. Hunton, can have no claim for dower in the lands devised to her, and which she has lost by her second marriage.
Hunton and wife must account for the rents and profits since the marriage, and an allowance must be made to them for the maintenance of the children during the same period. Let such an account be taken, together with a general account of the debts and credits of the estate, if need be, and let report be made by the master as to the practicability of making partition of the property among those lawfully entitled. The question of costs, and ail further directions, are reserved.