Sandford v. Jackson

3 Sarat. Ch. Sent. 26

• Court: New York Court of Chancery
• Decided: April 18, 1843
• Status: Published

Opinion

Decided that where a testator in terms declares that a pro-t vision made by his will in favor of his wife is in lieu of dower, if she accepts it she cannot have her dower in the testator’s estate also, even in those cases where the assignment of her dower would not interfere with any other provision of the will except such declared intent of the testator. But that to bar her of her dower by implication, where the testator has not declared his 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 provision made for her in the will.

And that to deprive the wife of her dower, or compel her to elect, it is not sufficient that the provisions of the will render it doubtful whether the testator intended she should have her dower, in addition to the provision made for her by the will 5 but the terms of the will must be such as to show an intention on the part of the testator to exclude the claim of dower.

Decree appealed from affirmed, with costs.