The Assistant Vice-Chancellor.
Several important questions are presented by the claims of Mrs. Havens, the widow of the testator.
And first, in reference to her dower. It is contended by the other parties, that she is put to an election between her dower and the provisions under the will. That the intention of the testator is manifest from the whole will, that she should not take dower in his estate and that several of his express objects and intents will be defeated by allowing to her, dower in addition to the special gifts made to her.
It is agreed that there is no express declaration in the will, that the provisions for the widow, shall be in lieu of dower. In order to defeat her right, this intent is to be implied.
Chancellor Kent states the rule on this subject, in these words. “ The testamentary provision in lieu of dower, in order to render it such, even with the widow’s acceptance of it, must be declared in express terms, to be given in lieu of dower; or that intention must be deduced by clear and manifest implication from the will, founded on the fact that the claim of dower would be inconsistent with the will, or so repugnant to its dispositions as to disturb and defeat' them.” Adsit v. Adsit, (2 J. C. R. 448;) 4 Kent’s Comm. 58, 2d ed.
And Chancellor Walworth says, in Sandford v. Jackson, decided May 2, 1843, and not yet reported, (a) “ To bar the-widow by implication where the testator has not declared his [329] intention on the subject by his will, the provisions of the will, or some of them, must be absolutely inconsistent with her claim of dower, so that the intention of the testator will be defeated as to some part of the property devised or bequeathed to others," if she takes her dower, as Well as the provisions made for her in the will.”
Let us now examine the objections' made to' Mrs. Havens’ dower.
1. The house and lot in William-stieet, where the testator resided, were devised to her for life. This of course excludes any dower interest in that property. But of itself, it furnishes no argument against the existence of the right in other real estate of the testator. Birmingham v. Kirwan, (2 Schoales and Lefroy, 444,) was a similar case,- where the widow took her dower in the remaining real estate. And a like case, where there was a stronger implication against the widow, is Holdich v. Holdich, (2 Younge and Collyer’s New Cases, 18.)
2. The specific provisions made for her by the will, exceed the value of her dower right; in fact, it was said, they amount to nearly one half of the whole estate.
This to my mind, furnishes no reason whatever, for implying that the testator intended to bar her dower. It is not what the court or the counsel would do,' in like circumstances, that is to ascertain what the testator has done or intended to do. In this instance, it would have excited no great surprise,"if the testator had given the whole of his property to his wife.' He left no children, and" she was the only near and immediate object of his bounty. Because he devised to her these specific portions of his estate, I" Cannot infer that he designed to deprive her of the provision which the law gave her by right of her marriage.
The same argument, from the liberal provisions made for the wife by the will, was urged in Fuller v. Yates, (8 Paige’s R. 325,) and was overruled by the Chancellor.
In Sandford v. Jackson, before cited, the testator devised his whole estate real and personal, for the use and support of his wife so long as she remained his widow," and until his daughter Sophia should become of age, and then that his property both [330] real and personal, should he equally divided among his children who were named in the will. Sophia was only six months old at the death of the testator. The widow married again soon after his death, and continued in the exclusive use of the estate until Sophia became of age. The heirs contended that the devise was in lieu of dower, and that having elected to take under the will, her dower was barred. Vice-Chancellor Gridley, (of the Fifth Circuit,) decided that the widow was entitled to dower after Sophia attained her majority, and the Chancellor on appeal, affirmed his decision.
The implication against the claim of the widow, was in that case, vastly stronger than it is here. And the decision is directly contrary to that of Chancellor Vroom, in New-Jersey, in Stark v. Hunton, (1 Saxton’s Ch. R. 216.) It is however a dedisive authority in the case before me.
3. It urged that the claim of dower is inconsistent with the testator’s devise to his sisters, and to his brother John T. Havens, and partially defeats those gifts.
The effect is, not to defeat the devises, but they must be taken, cum onere, subject to the right which the law vests in the widow. The same objection to dower, might be urged, with as much propriety, in- every case where land is devised by a testator whose wife survives him. The widow’s right is pro tanto, inconsistent with the perfect enjoyment of the devise. But that right is a legal claim, superior to the will, and which it will be presumed the testator knew would be paramount to any interest he could dispose of; and with this knowledge the inference is, that if he intended to exclude the legal right by another provision in her behalf, such intention would have been declared in the will.
Mrs. Havens is therefore entitled to-her dower in the lands specifically devised by the testator.
In reference to the real estate not mentioned specifically in the will, there are two points which will be examined hereafter, and which, it is insisted, affect her dower in that estate, viz: whether it forms a part of the residue disposed of by the will; and if it does, then whether Mrs. Havens is to participate in its distribution as a residuary legatee or devisee»-
[331] I think, if both these propositions are established, she is still entitled "to her dower in the remaining real estate. Suppose the testator died seised of a single house and lot, after devising it to be divided between his widow and his brothers and sisters. The widow would undeniably take her dower, and an equal interest with each of the other devisees, in the residue. So, if the devise had been of one-third to her for life, and the residue to the brothers and sisters, she would take her dower and the other third under the will. The testator’s interest in the residue, in this case, and in the house and lot in the case put, which he could give by his will, is the property subject to the dower right. Out of this property which he has, less the inchoate right of his wife to her dower, he can carve such inteterests as he pleases, and his wife is as competent to take one or more of such interests as devisee, as any other person.(a) Second. The claims of Mrs. Havens, in reference to the stock of the Bank of the United States, and of the Bank of U.tica, were conceded at the hearing.
Third. The next litigated question, is upon the stock of the Firemens Insurance Company.
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The Assistant Vice-Chancellor.
Several important questions are presented by the claims of Mrs. Havens, the widow of the testator.
And first, in reference to her dower. It is contended by the other parties, that she is put to an election between her dower and the provisions under the will. That the intention of the testator is manifest from the whole will, that she should not take dower in his estate and that several of his express objects and intents will be defeated by allowing to her, dower in addition to the special gifts made to her.
It is agreed that there is no express declaration in the will, that the provisions for the widow, shall be in lieu of dower. In order to defeat her right, this intent is to be implied.
Chancellor Kent states the rule on this subject, in these words. “ The testamentary provision in lieu of dower, in order to render it such, even with the widow’s acceptance of it, must be declared in express terms, to be given in lieu of dower; or that intention must be deduced by clear and manifest implication from the will, founded on the fact that the claim of dower would be inconsistent with the will, or so repugnant to its dispositions as to disturb and defeat' them.” Adsit v. Adsit, (2 J. C. R. 448;) 4 Kent’s Comm. 58, 2d ed.
And Chancellor Walworth says, in Sandford v. Jackson, decided May 2, 1843, and not yet reported, (a) “ To bar the-widow by implication where the testator has not declared his [329] intention on the subject by his will, the provisions of the will, or some of them, must be absolutely inconsistent with her claim of dower, so that the intention of the testator will be defeated as to some part of the property devised or bequeathed to others," if she takes her dower, as Well as the provisions made for her in the will.”
Let us now examine the objections' made to' Mrs. Havens’ dower.
1. The house and lot in William-stieet, where the testator resided, were devised to her for life. This of course excludes any dower interest in that property. But of itself, it furnishes no argument against the existence of the right in other real estate of the testator. Birmingham v. Kirwan, (2 Schoales and Lefroy, 444,) was a similar case,- where the widow took her dower in the remaining real estate. And a like case, where there was a stronger implication against the widow, is Holdich v. Holdich, (2 Younge and Collyer’s New Cases, 18.)
2. The specific provisions made for her by the will, exceed the value of her dower right; in fact, it was said, they amount to nearly one half of the whole estate.
This to my mind, furnishes no reason whatever, for implying that the testator intended to bar her dower. It is not what the court or the counsel would do,' in like circumstances, that is to ascertain what the testator has done or intended to do. In this instance, it would have excited no great surprise,"if the testator had given the whole of his property to his wife.' He left no children, and" she was the only near and immediate object of his bounty. Because he devised to her these specific portions of his estate, I" Cannot infer that he designed to deprive her of the provision which the law gave her by right of her marriage.
The same argument, from the liberal provisions made for the wife by the will, was urged in Fuller v. Yates, (8 Paige’s R. 325,) and was overruled by the Chancellor.
In Sandford v. Jackson, before cited, the testator devised his whole estate real and personal, for the use and support of his wife so long as she remained his widow," and until his daughter Sophia should become of age, and then that his property both [330] real and personal, should he equally divided among his children who were named in the will. Sophia was only six months old at the death of the testator. The widow married again soon after his death, and continued in the exclusive use of the estate until Sophia became of age. The heirs contended that the devise was in lieu of dower, and that having elected to take under the will, her dower was barred. Vice-Chancellor Gridley, (of the Fifth Circuit,) decided that the widow was entitled to dower after Sophia attained her majority, and the Chancellor on appeal, affirmed his decision.
The implication against the claim of the widow, was in that case, vastly stronger than it is here. And the decision is directly contrary to that of Chancellor Vroom, in New-Jersey, in Stark v. Hunton, (1 Saxton’s Ch. R. 216.) It is however a dedisive authority in the case before me.
3. It urged that the claim of dower is inconsistent with the testator’s devise to his sisters, and to his brother John T. Havens, and partially defeats those gifts.
The effect is, not to defeat the devises, but they must be taken, cum onere, subject to the right which the law vests in the widow. The same objection to dower, might be urged, with as much propriety, in- every case where land is devised by a testator whose wife survives him. The widow’s right is pro tanto, inconsistent with the perfect enjoyment of the devise. But that right is a legal claim, superior to the will, and which it will be presumed the testator knew would be paramount to any interest he could dispose of; and with this knowledge the inference is, that if he intended to exclude the legal right by another provision in her behalf, such intention would have been declared in the will.
Mrs. Havens is therefore entitled to-her dower in the lands specifically devised by the testator.
In reference to the real estate not mentioned specifically in the will, there are two points which will be examined hereafter, and which, it is insisted, affect her dower in that estate, viz: whether it forms a part of the residue disposed of by the will; and if it does, then whether Mrs. Havens is to participate in its distribution as a residuary legatee or devisee»-
[331] I think, if both these propositions are established, she is still entitled "to her dower in the remaining real estate. Suppose the testator died seised of a single house and lot, after devising it to be divided between his widow and his brothers and sisters. The widow would undeniably take her dower, and an equal interest with each of the other devisees, in the residue. So, if the devise had been of one-third to her for life, and the residue to the brothers and sisters, she would take her dower and the other third under the will. The testator’s interest in the residue, in this case, and in the house and lot in the case put, which he could give by his will, is the property subject to the dower right. Out of this property which he has, less the inchoate right of his wife to her dower, he can carve such inteterests as he pleases, and his wife is as competent to take one or more of such interests as devisee, as any other person.(a) Second. The claims of Mrs. Havens, in reference to the stock of the Bank of the United States, and of the Bank of U.tica, were conceded at the hearing.
Third. The next litigated question, is upon the stock of the Firemens Insurance Company.
The testator, at the date of his will in 1830, had 100 shares of this stock, and still owned them at the passage of the act of January, 1836, enabling the insolvent insurance companies to fill up their capital. In 1836, he filled up 40 shares, and suffered the remainder to be issued to others, pursuant to the provisions of the act. He continued to own the 40 shares till his death.
If, as is contended, there was a revocation here, it must be placed on the ground of intention. But there is nothing from which to infer such an intention. The value of the stock was gone, and the testator’s filling it up would rather argue a design to keep his bequest good. It is like the case in the old [332] books', where the testator bequeaths a ship, and afterwards, by piecemeal, repairs or renews it, so that there remains little or nothing of the old matter or stuff; his will is not by .this presumed to be changed, and it is deemed to be the same ship in law. (Swinb. on Wills, p. 7, § 20 ; Godolph. Orph. Leg. 401.) It is argued that this is not the same stock which the testator bequeathed. I think otherwise, and that it is identically the same to the extent of the 40 shares.
In Partridge v. Partridge, (Cases Temp. Talbot, 226,) the testator, by his will, gave £1000 of South Sea Stock to his wife. When he made his will, he had £18.00 of that stock. He afterwards reduced it to £200, but after that, purchased so much as to make up the £200 to be £1600, and died in July, 1733. In June, 1733, by act of Parliament, three-fourths of the capital South Sea Stock was changed into annuities. Lord Talbot decided that there was no ademption of the £1000.
Under the most stringent rule ever held on the subject; viz s that the court is only to inquire whether the specific thing remained at the death of the testator; this Firemens Insurance stock passes by the beqijest in the will. See Stanley v. Potter, (2 Cox Ch. C. 180, per Lord Thurlow;) Barker v. Rayner, (5 Madd. 208, per Sir John Leach.) And as to these cases, see Ward on Legacies, 24, 269.
I am satisfied that Mrs. Havens is entitled to the stock in question.
Fourth. In reference to her claim upon the residue, I will consider that, when upon the construction of the residuary bequest.
The devise of the property in Water-street and Front-street, to John T. Havens, next claims attention.
It is contended, that the acts of the testator in improving this property and reducing his debt, were a revocation of the devise to John T. Havens.
Here we are again to have recourse to the intention of the testator. Looking to what we may believe to have been his real intention, by the. light of this evidence and the situation of his family, without reference to any fixed rules of law on the [333] subject; I am persuaded that he did not design to revoke this devise.
It was conceded at the hearing that the testator and his brother John, had made their property together as partners in trade, and had been associated in business for a great length of time. At the date of this will, there was an unsettled account between them, on which the testator was indebted to John in a'sum not then ascertained. The account was not settled during his lifetime, but it is agreed that at the date of the will, the balance against the testator was $6,500.
In making his will, as was very natural and reasonable, his brother John appears to have been the principal object of his regard, after "providing for his wife. We therefore find that after giving to her the life interest in the United States Bank, and Utica Bank stocks, and in the William-street property, he in each instance gives the whole remainder to John T. Havens. Then follows a bequest to his brother-in-law and his family. Next comes the devise of a life interest to the testator’s two maiden sisters, in the land which belonged to his father, and the remainder in that he also gives to John in fee. Then comes the devise in question, and it is expressed to be in satisfaction and full discharge of John’s claims on the testator. He gave to John real estate worth $12,000 in this clause, and as it is the last gift which he intends for his brother, and exceeding in amount (which no previous' gift to him did,) any probable debt which John had against him, he declares that this devise shall be in satisfaction and full discharge of all John’s claims.
The reduction of the balance by the subsequent dealings between them, is not under such circumstances evidence of an intention to revoke the devise, or any part of it. No one can doubt but that the testator would have given this property to his brother, if he had not owed a cent to the latter.
The laying out money upon the property, is no stronger ■evidence in this case, of a revocation. It is probable that this fact alone would not have been urged in support of a revocation. It can rarely occur in our ever changing community, that real estate devised, will after the lapse of nine years remain in the [334] same plight that it was when the will was executed. And any rule as to implied revocation, founded upon the greater or less degree of additions and improvements made to the estate, between the date of a will and the death of the testator, would be very uncertain and even dangerous. If the question were open to adjudication, I should say without hesitation, that the reduction of the debt, and the enhanced value of the estate by buildings upon it, after the making of the will, did not revoke the devise to John T. Havens.
The Revised Statutes appear to be decisive of this point. They provide, (2 R. S. 64, § 42,) that no will in writing, except in the cases thereinafter mentioned, nor any part thereof, shall be revoked or altered, otherwise than by some other will in writing, or some other writing of the testator declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed ; or unless such will be cancelled &c.
The succeeding sections of the Revised Statutes, mention various .cases in which a will shall be deemed revoked in whole or in part; but there is no provision for revocation, in .a case like the one before me.
It appears by the notes of the revisers accompanying these .sections, that they intended to provide for all cases of implied revocation, (See 3 Rev. Stat. 2d ed., 631, 634.)
The next subject of inquiry is the disposition made of the residue and what property is embraced in it.
First, The will contains the words “all the rest, residue ¡and remainder of my estate, in case it shall more than suffice to pay the legacies hereinabove and hereinafter given, I bequeath,” &c.
It is conceded that the word “ estate ” is sufficient to include all property, real and personal, but the residue of the Words used, it is argued, restrict the bequest to personalty.
The testator devised specifically, all the real estate which he had at the date of th.e will. When therefore he was speaking of the rest of his estate left after paying his legacies, he had in view personal estate only. *It was out of that estate alone [335] that his legacies were to be paid,- and this strengthens the conviction that the residuary bequest was limited to that species of property.
The will does not in express terms dispose of all the testator’s real estate, nor are there terms in it which denote his intent to devise all his real property,- within the meaning of the statute, (2 R. S. 57, § 5.)
In my judgment, the real estate acqúired by the testator after the making of his will, did not pass 'under this residuary bequest, but descended' to his heirs at law, subject to the dower of his widow.
Second. The bequest of the residue,- is 11 to the above named pecuniary and specific legatees,-severally and respectively to be apportioned among them, according to the amounts of their respective legacies, and to be added as an increase thereof.”
This language is too plain to admit of any doubt upon its true construction. The testator has used throughout his will, not merely apt words, hut technical words of devise and bequest, in reference to real and personal estate respectively". Here he gives the residue to his pecuniary and specific legatees, excluding devisees; and as an increase of their legacies, not in addition to their devises. Neither the general scope of the will, nor the previous gifts, nor the situation of his'family, furnish us any ground for supposing that he used this language erroneously. And as we have seen, the residuary fund itself, was personalty, and thus appropriately given to legatees as such.
Again, the residuary bequest is expressly limited to the legatees above named. This excludes all the legatees whose names do not appear in the will prior to the residuary clause.
Mrs. Havens is one of the above námed legatees, and she takes not only in respect of her preceding specific and pecuniary legacies, but also in respect of the subsequent legacy of the Firemens Insurance stock. The residue is what is left after paying the legacies herein above and hereinafter given, and it is to be distributed among those above named, according to the amounts of their respective legacies, meaning as well their legacies after given, as those given before.
[336] In ascertaining these “ amounts ^ some of the parties claim that the stocks specifically bequeathed shall bé estimated at their nominal or par value, as expressed in the will. This is not the proper rule, because as to part of those stocks, John T. Havens, or his children, are to take only whatever residuum there may be at the death of Mrs. Havens. The will speaks at and from the death of the testator, and in apportioning the residue, the value of the stocks at that period is to be taken ; and the worth of Mrs. Havens’ interest in the bank stocks at that time, is to be estimated in making the apportionment.
There must be a decree accordingly.