1 Binn. 565 | Pa. | 1809
This is an appeal from the decision of the circuit court of Lancaster wherein a verdict passed for the plaintiffs and the court overruled a motion for a new trial. The question arises on the will of Isaac Evans, whether the widow, accepting the devises therein expressed to her, is thereby barred from recovering dower in the lands devised to her son Isaac.
The will is dated 29th of November 1781, and is in these words. [His Honor here referred to the material clauses of the will.]
A variety of cases, upon this subject, occur in the English books. At law it is fully agreed that when the husband devises generally to the wife, the same cannot be averred to be in sa
Several cases of dower have occurred in this court and at nisi prius. In Kennedy v. Nedrow et al.
The case of Joseph Creacraft et uxor v. Wions, on the will of Jabez Baldwin
But it has been objected, that a clause in this will forms a material distinction between the two cases. The words are I give to my wife Ann during her widowhood the front “ room of the house wherein I now live, the small cellar under “ the kitchen, and the common use of the kitchen, oven, and “ drawwell, and the privilege of passing and repassing to and “ from every of the same.” To this it is a sufficient answer to say, that the house, kitchen, and premises, out of which these privileges are granted, do not stand on the lands devised to Isaac Evans the defendant in this suit; and it is immaterial at present to determine what operation this would have, as to the lands devised to William. But waiving this answer, there does not appear any incompatibility between this devise and the widow’s claim of dower. She was to educate and school the children until the sons attained their full age; and the profits of the lands during their minority were given to her for that purpose. It would be harsh indeed to ascribe to the testator the intention, that his widow after that time should remain de
In fact this very question came before the late chief justice M-Kean and myself, in an ejectment commenced by the lessee of William Evans against the now plaintiff Webb, on a case stated at nisi prius at Lancaster in May 1794. We took time to advise thereon after the argument, and in January term 1795, delivered our opinion with our reasons, that the claim of Webb in right of his wife to her dower, was not inconsistent with or in contradiction of the will. I see no t-eason for altering the opinion which I then formed on due deliberation.
But my mind is not yet satisfied as to the manner of entering judgment on the verdict. The late mournful event has put it out of my power to examine the law, and consult the entries in such cases, as fully as I intended; and therefore the cause must be continued under advisement.
Cur. adv. vult.
At a subsequent day the demandants by their attorney released the damages found by the jury; and on motion, the court gave
Judgment for the demandants.
Co. Litt. 36. b. 4. Co. 4. a. Sro. Ab. devise.pi. 69.
1 Dali. 415.
3 T.R, 473.
<4 Co. 3. a. Co. Liu, 36. b.
Moor. 31. case 102.
Addison 350.
His Honour, at the close of his opinion, informed the bar, that the late Mr. Justice Smith had seen and concurred in it.