Allen v. Pray

Weston C. J. By the English law, a provision made for the widow, by will, and an- acceptance of it by her, is no bar to her common law righhof dower, unless it be expressed in the will to be in lieu of dower, or the enjoyment of it will be inconsistent with its provisions. The testator gives estate, real and [141] persona], to his widow ; that is to say, one third of his real estate during her natural life, and the entire property in one third of his personal estate. The remainder of his estate, ho bestows upon his children and grandchildren. What is the remainder, after one third is withdrawn ? There can be but one answer, the other two thirds ; to which is to be added the reversion expectant, upon the determination of the widow’s life estate. If, besides the testamentary interest of one third, she is to be allowed dower, instead of a remainder of two thirds for the children and grandchildren, there will remain one third, or four ninths, if her testamentary interest contributes to dower. This claim, therefore, clearly disappoints the will, and is inconsistent with it. Every devisee must confirm the will in toto, if he claims any interest under it; and must consequently forfeit such interest, if he impeaches or interrupts any part of it. 6 Cruise, Tit. 38, ch. 2. But it is urged, that there will be no inconsistency, if the widow waives her dower in the real estate, of which her husband died seised ; that this is all which can be required of her, and that this part of her dower she has never claimed. But we cannot regard the title of dower, as possessing this divisible character. It must be allowed generally, or withheld generally. If the right of dower, to the extent allowed by the common law, be inconsistent with the will, if the widow would enjoy the one, she must waive or relinquish the other. But the claim of dower, besides diminishing the remainder of the real estate otherwise devised, may diminish also the personal estate bequeathed to the children and grandchildren. It will be held to make good to the grantees of lands, conveyed by the testator, in his life time, by deeds of warranty, any damage to which they may be subjected, by the claim and assignment of dower. The tenant, by the deed he accepted, may have precluded himself from any remedy; but no such reservation can be presumed to have qualified other deeds of conveyance, made by the testator. In Perkins v. Little, 1 Greenl. 148, the testator had devised to his widow one third part of his real estate, during her life; and after providing for the payment of his debts, and giving certain legacies to his children, he bequeathed to her one third part [142] of the residue of his personal estate. The widow, who had able counsel, did not claim to hold under the will and her dower also, although as fairly entitled to do so as the demandant here, but contended that the dower to be allowed her under the statute, ought to be extended, so as to embrace a third part of the personal estate, which was not allowed. In this State and in Massachusetts, the widow is by statute entitled to dower, if she relinquish the provision made for her in the will. The implication is very strong, that she is not otherwise to have her dower ; although the construction is not to be carried so far, if dower is consistent with the will. But in Reed v. Dickerman, 12 Pick. 146, the Supreme Court of Massachusetts have held, that under the statute, the provision made by the will, instead of being presumed to be a bounty in addition to dower, according to the English rule, will be presumed to have been given instead of dower, unless the enjoyment also of that clearly appear to be consistent with the will. There is no latent ambiguity in the will in question, arising from its application to the property, upon which it operates. The Intention of the testator must therefore be gathered from that alone; and cannot be affected by other instruments, to which he may have been a party. We are all of opinion, that the claim of dower, being inconsistent with the provisions of the will, which, so far as they are for her benefit, she has not waived, she cannot maintain the present action. Demandant nonsuit.