Duncan research files of
"Reports of cases at common law and in equity decided in the Court of Appeals of Kentucky" ("Kentucky Reports" [Vol.] 17-19 - MONROE Vol.I-III) by Thomas B. Monroe, 2nd Edition; Vol.18, pg.20 to 25 (California State Law Library 12/2003)
BAILEY and Wife v. DUNCAN'S Executrix, &c., Chancery; Court of Appeals of Kentucky; 18 Ky. 20; 2 T.B. Mon. 20; April 28, 1825, Decided.
Error to the Bath Circuit; SILAS W. ROBBINS, JUDGE.
CH. J. BARRY delivered the Opinion of the Court. John Bailey, and Mary, his wife, late Mary Duncan, instituted a suit in chancery, in the Bath circuit court, against the executrix and devisees of Isaac Duncan, sen. for a division and distribution of his estate. The bill charges that the testator died possessed of considerable estate, real and personal; that the executrix, Margaret, had continued in possession of the land, since the death of her husband, receiving the rents and profits; that she was in possession of a negro woman, Martha, devised to her by the testator, with the increase, viz. Amy, Lucy, Jesse and Jefferson; and that she only had a life estate in the slaves. The bill prays for distribution of the personal estate, and account of the hire of slaves, rents and profits of the land, and for general relief.
Margaret Duncan, the executrix, in her answer, claims the slaves as her own property; states that she has made a just distribution among the heirs, of the personal estate; that she is not accountable for the rents and profits of the land; that it was a small tract of about ninety-three acres, which she retained the possession of until dower was assigned her, since which her possession has been confined to the part allotted for her dower, that she has improved the land, and greatly enhanced the value of the inheritance to the children. She also insists on a claim to three shares of the land, under the will of her son, Isaac Duncan.
The other defendants do not deny the allegations of the bill. They claim their just portions in the division sought for by the complainants. Margaret Duncan, and William Lawson, and Priscilla, his wife, make their answer a cross bill; allege that the complainants had parted with their interest in the land, by contract with Isaac Duncan, jun. who had devised it to said Margaret for life, remainder to Priscilla Lawson in fee; and pray that the complainants may convey to them accordingly.
The complainants resist the claim set up in the cross bill, and charge the contract with Isaac Duncan, jun. to have been obtained from them by fraud. They also insist that Mary Bailey is not bound by the contract of her husband, and ought not to be compelled to convey her estate in the land, as she is unwilling to do so.
Upon the final hearing of the cause, the court dismissed the complainant's bill with costs. On the cross bill the court decreed the land to be divided amongst the heirs subject to the widow's dower, and directed the complainants to convey agreeably to the contract with Isaac Duncan, jun.
To reverse the decree that dismisses the bill of the complainants, they prosecute this writ of error. The propriety of the decree on the cross bill, is not now questioned.
The first subject to be considered, is the claim set up by the complainants to the slaves, under the will of Isaac Duncan, sen. The part of the will touching this devise, and which may serve to explain it, is in the following words:
"And as touching my worldly goods, wherewith it has pleased Almighty God to bless me with. I give and bequeath in manner and form following: First of all, my will and desire is, that all my lawful debts shall be paid by my executors, out of my estate, and those debts which are due to me, collected by my executors. Next, I will and bequeath unto my beloved wife, Margaret, item, one negro girl named Martha. Next, I will and bequeath to my daughter, Sarah, ten shillings. Next I give and bequeath the balance of my estate to be equally divided amongst the rest of my children."
The rule of construction insisted on by the complainants, that requires words of limitation to pass a fee, had its origin in the feudal code, and was designed to operate as a restraint upon the alienations of landed property. The courts in England, have labored to emancipate themselves from the rigor of this rule. They readily lay hold of any words to avoid it and effectuate the intention of the testator. It has accordingly been settled, that the word, estate, will, when coupled with the devise, comprehend the interest, as well as describe the thing, and pass a fee; that this word may be transposed from the preamble or other parts of the will, and annexed to the devise, to fulfil the intention of the testator.
All judges, ancient and modern, concur in saying, that the intention of the testator is to give the rule of construction. It is now the governing principle, emphatically said to be the polar star, to guide our decisions, and to which all other rules of construction must yield. Let us now apply this principle to the case before us. It was the intention of the testator to dispose of his whole estate, without reserve or limitation. The whole complexion of the will proves this, and shows that he intended to give the slave absolutely to his wife. In the commencement, he declares his intention to dispose of all the wordly goods with which it had pleased God to bless him. Technically, the word goods does not include land or slaves; but who can doubt that this unlettered testator intended by this expression to comprehend all his property of every description? It appears from the face of the will, that he was an ignorant man. In such case, no inference is to be drawn, from the want of technical words unfavorable to a liberal and enlarged construction of the devise. But luckily, the will contains a word that will most certainly give effect to the testator's intention. The word estate, is found in the commencement and conclusion, before and after the particular devise. Immediately preceding it, he directs his executors out of his estate, to pay all his debts, and afterwards provides that the balance of his estate shall be equally divided amongst the rest of his children. Couple this word with the devise, and upon the authority of the cases cited, it passes the fee. Another plain view is presented. If the testator intended that his wife should have a life estate only, is it not reasonable to suppose, more especially as he had but one slave, that in the latter part of the will, where he finally disposes of all the rest of his estate, he would have directed what was to be done with the slave and her probable increase, at the death of his wife? The court are so fully satisfied that a fee in the slave passed to the wife by the devise, according to acknowledged and well settled rules of law, that it is not deemed necessary to resort for aid to the act of assembly, which provides that a fee shall pass without words before necessary to transfer an estate of inheritance.
As to the personal estate of the testator, it is in proof that the complainant. Mary Bailey, received her distributable share, before her marriage with John Bailey; but they claim a portion of the shares of the three infant children of the testator, who died without issue, and, as they allege, without having received their respective shares of the personal estate. It appears from the proof in the cause, that the testator died in 1803; that his wife qualified as executrix in the month of June, of the same year; that she had charge of a large family of children, with but scanty means for their support. The difficulties that she must necessarily encounter, were increased by sickness. Four of the children died. The expense of physicians and attendance, necessarily incurred, must have been considerable. Nancy is proved to have been very sickly. The executrix, in the account rendered in her answer, states that she expended on each of the decedents, more than their distributable share. The amount each was entitled to, of the personal estate, was only $49.29. Under existing circumstances, with proof that physicians were employed to attend the children, considering that the mother took care of them in helpless infancy, nursed them in sickness, paid the doctors' bills and funeral expenses, the court must consider her account reasonable, and allow it. We are aware of the rule that protects the money of infants, and allows the interest only to be used for maintenance and education; but do not consider it impugned, when the money is necessarily employed to relieve in case of distress and sickness. There is express authority to authorize it. There is another reason for allowing the account of the executrix, as she states it. The personal estate came into her hands in 1803; the complainants filed their bill in the year 1820. After the lapse of seventeen years, it would be unreasonable on account of the death of witnesses and probable loss of papers, especially for so small a claim, to subject the executrix to the expense of further accounting. It has been refused by the chancellor, in similar cases, after lapse of a much shorter time.
The question as to the land remains to be considered. The tract of about ninety-three acres was purchased and paid for by the testator, who improved and resided on it some years before his death. It does not appear that he held any written contract for the title; but after his death, on the application of his heirs, the land was conveyed to them by Capt. John Fowler, for the consideration of £10, paid by their ancestor, as expressed in the deed. The land was conveyed jointly to the husbands of the females and the other children of the testator. In the year 1817, after the death of James Duncan and William Ireland Duncan, two of the testator's children who died without issue, the complainant, John Bailey, sold his own and his wife's interest in the land, to her brother, Isaac Duncan, jun. received the consideration, and executed his bond for the title. The interest thus acquired, with his own as one of the heirs, Isaac devised to his mother, Margaret, for life, remainder in fee, to his sister, Priscilla Lawson. The alleged fraud in the purchase made by Isaac of the complainant is not proved. How far this sale by the husband will divest the wife of her title, need not now be decided. It is binding on the husband, and the purchaser will be protected, during the joint lives of Bailey and his wife. The complainants show themselves entitled to a small interest in the land, acquired by the death of a sister, Nancy Duncan, subsequently to the sale to Isaac. This ascertained to be one acre and seventy-six poles, is allotted them in the division decreed on the cross bill, subject to the widow's claim of dower. The injustice, if any has been done the complainants, is in allowing the claim of dower on this small parcel of land. If the widow is entitled to dower, no injury has been done. Is it necessary to investigate this matter, with a view to afford relief, if it results favorably to the complainants? This small portion of an indifferent tract of land, remotely situated, with no adventitious circumstance to enchance its value, the whole of which originally was purchased for £10, is too inconsiderable to justify the expense that must be incurred. The cost of surveying alone, it is believed, would be equal to its value. It is not considered, in such a case, that it would be discreet or useful, for the court to interfere; on the contrary, that it would be oppressive, and without any beneficial result to either party. The circuit court did right in dismissing the complainants' bill.
The decree is affirmed with costs, &c.
"Reports of cases at common law and in equity decided in the Court of Appeals of Kentucky" ("Kentucky Reports" [Vol.] 20-21 - MONROE Vol.IV-V) by Thomas B. Monroe, 2nd Edition; Vol.20, pg.256 to 267 (California State Law Library 12/2003)
BAILEY and Wife vs. DUNCAN'S Representatives, &C.; Court of Appeals of Kentucky; 20 Ky. 256; 4 T.B. Mon. 256; April 4, 1827, Decided.
Error to the Bath Circuit; SILAS W. ROBBINS, Judge.
Opinion of the Court by Judge OWSLEY. John Bailey and Mary his wife, formerly Mary Duncan, claiming in right of the latter, an interest in the personal estate, slaves and land of Isaac Duncan Sen. dec'd exhibited their bill in chancery against Margaret Duncan, the executrix of the last will &c. of the said Isaac dec'd. and the surviving brothers and sisters of Mrs. Baily, for the purpose of obtaining an account of the personal estate, hire of slaves, rents and profits of the land, and partition of the slaves and land.
After several amended bills, cross bills and answers, (the particular import of which, need not now be mentioned,) were filed, the cause came on to be heard, and the decree to which this writ of error is prosecuted, was pronounced.
The questions made by the pleadings, and involved in the assignment of errors, may with propriety be said to embrace the following points:
1st. As to the interest to which Baily and his wife, in right of his wife, are entitled in the slave Martha, which belonged to her father, Isaac Duncan Sen. at the time of his death, and the issue of that slave.
2nd. The interest to which they are entitled, in the personal estate of the said Isaac, as one of his heirs and distributees, and also as one of the heirs and distributees of her brothers, Wm. Ireland Duncan, James Duncan, and Nancy Duncan, all of whom departed this life after their father, Isaac Duncan Sen. whilst they were infants, unmarried and without issue.
3rd. Their interest in the rents and profits of the land, and the land itself, claimed by them, in right of Mrs. Baily, as heir to her father, and also as heir to her deceased brothers and sister.
4th. As to the right of dower in the land claimed by Margaret Duncan, the widow of Isaac Duncan Sen. and which was decreed to her by the court below.
With respect to the first point it is perfectly clear that Baily and his wife, have no interest in either the slave Martha, or her increase. The increase have all been born since the death of Mrs. Baily's father, Isaac Duncan, by whose last will, the slave Martha was given to his wife, Margaret Duncan. There is contained in the bequest of the slave to Margaret Duncan, no such words, as by the common law were necessary in grants, to pass an estate of inheritance in land, but words of that sort were never required, to pass the absolute right in slaves or personal chattels, and there is no expression in the bequest to Margaret, or in any other provision contained in the will, indicating in the slightest degree, an intention in the testator, not to give to Margaret the absolute right to the slave. The words of the bequest are: "I give unto my beloved wife Margaret, item, one negro girl named Martha." These expressions plainly and naturally imply an absolute gift of the slave, and it is a subject of no slight surprise, that it should ever have been supposed by any one, that a less interest passed to the wife of the testator.
As to the second point, it is equally clear, that Baily and his wife are entitled to no relief in the present contest. As to so much of the personal estate as is claimed in right of Mrs. Baily as one of the heirs and distributees of her father Isaac Duncan deceased, the evidence is clear that the amount thereof was paid to her, before her marriage with Baily, by Margaret Duncan.
And as respects the interest claimed by Baily and his wife, on account of her being one of the heirs of her deceased brothers and sisters, it is perfectly clear that the executrix, Margaret Duncan, cannot be made to account in this suit to them. If there were any thing coming from the executrix, to the deceased children, at the time of their death, she is bound to account for it to their personal representatives; and though part of their distributees, Baily and his wife, in their character of distributees, have no right to demand an account; as was holden in the case of Coons &c. against Nall's heirs, 4 Littell R. 263.
Prelimary to a decision on the third point it is proper that we should give a brief statement of the facts upon which the claim of Baily and his wife, in relation to the land depends. It appears that their ancestor, Isaac Duncan dec'd, in his lifetime, in consideration of ten pounds in hand paid, purchased about ninety acres of land, received the possession thereof, made small improvements thereon, and continued to reside upon the land, until the time of his death. The title was not made to Isaac Duncan in his life time, nor does it appear that any obligation for a title was given to him by the person from whom he purchased; but after his death the title was conveyed to the husbands of his married daughters, and his other children jointly, in consideration of his purchase, so that as between the present parties, Baily must be estopped, to deny that Isaac Duncan was possessed of the equitable right to the land, at the time of his death. It also appears that since the death of Isaac Duncan, the father, three of his children, to wit: Wm. I. Duncan, James Duncan and Nancy Duncan, departed this life, whilst they were infants, under the age of twenty-one years, and without issue.
Without, therefore, stopping to enquire whether or not the interest in the land which was held by Isaac Duncan, the father, at his death, descended upon his children by operation of law, or passed by his will, it is perfectly clear from the preceding facts, that Baily and his wife, must have become entitled to a part of the land. By the deed of conveyance which was executed to him and others, Baily in conjunction with the other vendees, became invested with a joint interest in the land; and upon the death of Wm. I., James and Nancy Duncan, the interest held by them, under the deed of conveyance, descended upon the surviving brothers and sisters, of whom Mrs. Baily is one.
That Baily and his wife were entitled to this interest, is conceded by the defendants, but Mrs. Duncan, the widow and executrix of Isaac Duncan the ancestor alleges, that since the death of two of the infant children, Baily, for a valuable consideration received, sold and gave his obligation to convey all the interest which he and his wife then held in the land, to another of the children, Isaac Duncan jr. who, she charges, has since by his last will and testament, devised the interest so purchased of Baily, to her, during her natural life, and the remainder to one of his sisters; and she insists upon the sale so made, as precluding Baily and his wife from recovering any part of the land to which they were then entitled.
Baily acknowledges that he made the sale and gave his obligation to convey, but charges that he was induced to do so, by the false and fraudulent representations of Mrs. Duncan, the widow, and Isaac Duncan jr. to whom his obligation was given, and after setting out the representations which he charges to be fraudulent, he insists upon the contract of sale being set aside, and a decree for the land.
But without going into a more particular detail of the facts, upon this branch of the case, it is sufficient to remark that the evidence, is totally insufficient to establish the fraud charged, and of course Baily cannot be entitled to a decree for any part of the land to which he and his wife were entitled at the time of the sale.
As respects the inheritance of the wife, we know the husband could not without her concurrence convey an estate in fee; but he possessed the power to sell the usufructuary interest, to which as husband he was entitled during the coverture of his wife, or the interest to which he may have been entitled as tenant by the curtesy, so that whatever may be the right of the wife or her representatives after the death of Baily, it is evident that neither Baily nor his wife have any right in equity, during his life, to claim any part of the interest sold to Isaac Duncan jr.
The only interest, therefore, to which Baily and his wife have shown themselves entitled, and to which they have a just claim for relief, is that which by operation of law, was cast upon Mrs. Baily, as one of the heirs of her sister Nancy, who died after the sale by Baily to Isaac Duncan jr. and that interest the court below decreed he should have.
But the court at the same time, decreed that Mrs. Duncan, the widow of Isaac Duncan, sen. was entitled to dower, in the part decreed to Baily and his wife; and hence we are brought to the fourth point, which involves an inquiry into the right of Mrs. Duncan to dower in the land.
We have already seen that Isaac Duncan, the husband, resided upon the land at the time of his decease, and that as respects the present contest, it is not competent for Baily and his wife, who claim under his purchase, to contest the goodness of his equity, so that in deciding upon the widow's right to dower, the question arises whether or not a wife is entitled to dower in land, of which her husband dies possessed, though without having the legal title, but to which at the time of his death, he is equitably entitled to a conveyance of the legal title from another?
Were this question to be decided upon common law principles, the answer would undoubtedly be in the negative. As early as Vernon's case, 4 Co. R. 1, it was held that a wife was not dowable of a use before the statute of uses; and since the statute, uses or trusts not executed by the statute have been repeatedly held not to give the wife a greater interest than uses at common law.
In the case of Bottomley against Lord Fairfax. Prec. Ch. 336, the court say, "that if a husband before marriage conveys his estate to trustees and their heirs, in such a manner as to put the legal estate out of him, though the trust be limited to him and his heirs, that of this trust estate, the wife, after his death, shall not be endowed, and that this court hath never yet gone so far as to allow her dower in such a case."
In the case of Chaplin against Chaplin, 3 Peere. Wm. R. the chancellor says, "that as at common law, an use was the same as a trust is now, it follows, that the wife can no more be endowed of a trust now, than at common law, and before the statute, she could be endowed of an use."
And in the case of Godwin against Winsmore, 2 Atk. 526, Lord Hardwick observes, that "it is an established doctrine now that a wife is not dowable of a trust estate: indeed," says he, "a distinction is taken by Sir Joseph Jekyll, in Banks against Sutton, 2 P. Wms. 700, 709, in regard to a trust, where it descends or comes to the husband from another, and is not created by himself; but I think there is no ground for such a distinction, for it is going on suppositions which hold on both sides."
Thus stood the doctrine of the law upon the subject of estates in trust, until the passage of an act by the legislature of Virginia before the separation, and which has since been re-enacted by the Legislature of this state, and is contained in 1 Dig. L. K. 315.
The act provides that, "where any person to whose use, or in trust for whose benefit, another is, or shall be seized of lands, tenements or hereditaments, hath or shall have such inheritance in the use or trust, as if it had been a legal right, the husband or wife of such person would thereof have been entitled to curtesy or dower, such husband or wife shall have and hold, and may by the remedy proper in similar cases, recover curtesy or dower of such lands, tenements or hereditaments."
With respect to uses and trusts embraced by the provisions of this act, the doctrine of the common law has undoubtedly undergone a change, and although formerly a wife was not dowable of such a use or trust, she may now by the remedy proper in such a case, recover dower of the lands to which others are seized to the use, or in trust for the benefit of the husband. In deciding upon the question under consideration, therefore, the main and only enquiry for the court, is to ascertain whether or not it was intended by the makers of the act, to authorize a wife to recover dower in lands, to which the husband had at his death, an indisputable right, in equity to a conveyance of the fee simple estate, though the right be devised under an executory contract for the title, and not resulting from an use or trust, expressly declared by deed. With respect to trusts of the latter sort, the provisions of the act are too explicit, in favor of the wife's right, to admit of a difference of opinion; and if we advert, as we should do, to the old law as it stood at the passage of the act, the mischief which must have actuated the Legislature in making the change, and the remedy which the act has provided, we apprehend, but little doubt will be entertained as to the propriety of giving such a construction to the act, as will embrace all trusts, whether expressly declared by deed or resulting from executory contracts, by construction of courts of equity. The interest of the cestique trust is precisely the same, let the trust be created in the one way or the other, the justice of the wife's claim is as strong in one case as the other; and as she was not dowable in a trust of either sort, before the enactment of the statute, the mischief to be remedied by the act, emphatically demands that the wife should be endowed of trust estates of both sorts.
We have been unable to find any case, either in this country or Virginia, where dower has been decreed to the wife, in an equitable estate in fee, to which the husband became entitled by contract, for a conveyance of the land; but the right of the wife to dower in such a case came before the appellate court of the State of Virginia, in the case of Rawton against Rawton, 1 H. M. R. 92, and although a majority of the court decided against the claim of dower in that case, two out of the five Judges composing the court, were expressly in favor of the claim for dower; and the decision of the others went not upon the idea of dower not being allowable in an equitable estate, but upon the principle that the equitable estate, of which dower was claimed, was not made out by the testimony in the cause. And in the case of Claibourn against Claibourn, which afterwards came before the same court, Judge Roane who was one of the judges that decided against the widow's claim of dower in the former case, in remarking upon that case, after stating its circumstances, says, "the transaction having happened subsequent to the act of 1785," (the act of which the act of this country is a transcript,) "the widow claimed her dower only under the provision of that statute. Three of the judges overruled her claim; but it was on the ground of no contract having been proved, as they thought, for more than a life estate, in favor of the husband: two other judges thought that the husband had an equitable estate in fee, and on that ground were in favor of the dower, under the act of 1785." In the course of his remarks he further says, "the counsel in opposition to the claim of dower, admitted that under the act of 1785, the widow was entitled to dower, provided it should appear that her husband had such an equity in a fee simple estate, as would authorize a court of equity to decree the legal estate." Thus it seems to have been the concurrent opinion of the bar and the bench of the Supreme court of Virginia, that since the act of 1785, of which ours is a copy, that a wife is dowable of any equity in a fee simple estate, belonging to the husband, if it will authorize a court of equity to decree the legal title.
But admitting the equity held by the husband of Mrs. Duncan to be such as would have authorized her to recover dower in the land, we are brought to enquire whether or not, by accepting the provision made her by the will of her husband, she has precluded herself from insisting upon her right of dower in this contest. The will bears upon its face internal evidence of its having been drawn by an inexperienced and unskillful hand, and though not entirely free from doubt, we are inclined to the opinion, that it was designed by the testator to dispose of all his estate of every description. After making provision for the payment of his debts, the testator makes a specific bequest to his wife, of his slave Martha, and then, after making some small bequests, directs all the balance of his estate, to be equally divided between the rest of his children, not before named.
Though accepted by her, the bequest of the slave to Mrs. Duncan, most clearly, cannot be denominated a legal jointure, pleadable at law, in bar of her right of dower in the lands of her husband. Several reasons might be assigned, why it is not so; one only need be mentioned. The bequest is of a slave, and the statute of this country is understood not to allow the creation of a jointure by a bequest of that sort of property. See 1 Dig. 446, 2 Dig. 1246. The latter of these acts after fixing the time and providing the mode in which widows are to renounce the provisions which may be made them, by the wills of their deceased husbands, declares that upon such widows having made such a renunciation she "shall be entitled to one third part of the slaves whereof her husband died possessed, which she shall hold during her life, and at her death they and their increase shall go to such person or persons to whom they would have passed and gone, if such declaration had not been made; and she shall, moreover, be entitled to such share of his other personal estate, as if he had died intestate, to hold to her as her absolute property; but every widow not making a declaration, within the time aforesaid, shall have no more of her husband's slaves and personal estate, than is given her by his will. And the former act after providing for the conveyance of estate by deed or will, either expressly or by averment, for the jointure of the wife, in lieu of her dower, and after pointing out the nature and quality of estate to be conveyed, declares that such estate shall bar her dower of the residue of the lands, tenements and hereditaments, &c." These two acts in connection, satisfactorily show that to be a legal bar of dower of lands, the estate conveyed, in lieu of dower, must not be slaves only.
But conceding that the bequest does not constitute a legal bar of dower, is Mrs. Duncan to be permitted to hold the slave bequeathed to her, and also recover dower of the land which is devised by her husband to his children?
This question turns upon the construction of the will. There are many cases in the English books, in which the widow has been put to her election, either to take her dower and relinquish the provision made for her in the will, or take that provision and relinquish her dower. There are other cases in which she has been permitted to hold both. The principle upon which these cases go, is, that a person is not permitted to hold under and against a will; so that in every such case the main enquiry is whether it was intended by the testator, in making the provision for his widow, that it should be in lieu of, or in addition to her dower. If it be intended in lieu of dower, the widow is put to her election, if it be intended in addition to her dower, she is allowed to take the provision and claim her dower.
Formerly the intention was to be collected from the will itself; but the act of Virginia from which that of this country upon the subject of dower was taken, has been construed by the appellate court of Virginia, to authorize an averment that the provision in the will is made in lieu of dower, and to support that averment by matter dehors the will.
But there is in this case, nothing extraneous from the will, calculated to show the intention of the testator; and with the exception of this allowance to prove the intention of the testator by other testimony than may be collected from the will itself, the act is said not in any respect to vary the previous existing common law.
What then are we, upon common law principles, to understand to have been the intention of the testator? Are we to infer that the bequest of the slave to his wife, was intended by the testator to be in lieu of her dower in his lands, because in the after part of his will he has disposed of the residue of his estate to others?
We think not. In the case of Lawrence against Lawrence, 2 Vernon 365, it appearing that the testator by his will, gave a legacy to his wife, and devised to her part of his real estate, during her widowhood, and disposed of the residue of his estate to others, Lord Chancellor Summers refused to decree dower to the wife, unless she would waive the devise; but the decree of the Lord Chancellor was reversed by Lord Keeper Wright, and the reversal was afterwards affirmed in the house of lords, and that affirmance has been repeatedly followed in other cases. Since that affirmance, it is true, the English courts under particular and extraordinary circumstances, have in some cases construed a bequest to the wife, to have been intended by the testator to be in lieu of her dower without any express provision in the will, declaring such intention, and have put the wife to her election, either to take the bequest and relinquish her dower, or to take her dower and relinquish the bequest. But there are no extraordinary circumstances in this case to take it out of the influence of the decision of the house of lords in the case of Lawrence against Lawrence. Hence we infer that the bequest to the widow should not be construed to have been intended by the testator to be in lieu of her dower in the land, and that it was consequently correct in the court below to sustain the claim of dower, without requiring the widow to relinquish the provision made to her by the will.
The decree must be affirmed, with cost.
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