By the Court. —
Warner, J.
delivering the opinion.
This is an application for dower by the widow of Allen Tooke,. deceased, under the Statutes of this State. By our law, the widow is entitled to her dower, in all lands of which her husband died seized and possessed, and such as he acquired in her right, by his intermarriage with her. Prince, 249. On the trial of this cause on the Equity side of the Court, the Jury found a verdict in favor of the widow. The equitable circumstances charged in the bill, extrinsic of the will, were expressly denied by the answer, and supported but by one witness whose testimony was admitted by the Court. The verdict of the Jury must be considered as conclusive against the allegations made by the complainants, so far as the same relate to her waiver of her dower, and her acquiescence in the sale of the land by the executor. The testimony offered, and rejected by the Court below, only went to show, that the widow had received and enjoyed the benefit of the provisions made for her by the testator’s will,'so that the main question on this branch of the case is, whether the testator, by the bequests and devises to his widow, intended the same should be in lieu of her dower.
[27]*27The whole question, as was ruled by the Court below, is involved in the construction of the testator’s will.
[1.] The right of the widow to dower in the lands of her. deceased husband, is a legal right, of which she cannot be deprived by a testamentary disposition in her favor, unless such testamentary disposition, when taken in connexion with the other provisions of the testator’s will, necessarily be of such a character as to put her to an election, either to take the provision made for her by the will, or her dower. Without attempting to review and reconcile the numerous and conflicting decisions which are to be found in the books upon this “ greatly agitated subject,” as Ch. Kent calls it, in Adsit vs. Adsit, (2 John. Ch. Rep. 451,) we will state the rule which, in our judgment, is best sustained by principle and supported by authority.
In order to put the widow to her election, the testamentary provision in her favor must be declared in express terms, to be given in lieu of dower ; or the intention of the testator to that effect, 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 provisions, as necessarily to disturb and defeat them. Fuller vs. Yates, 8 Raige’s Rep. 325. Adsit vs. Adsit, 2 John. Ch. Rep. 448. Church vs. Bull, 2 Denio’s Rep. 430. French vs. Davis, 2 Vesey, Jr. 572. Strahan vs. Sutton, 3 Vesey, Jr. 249.
In the case before us, the testator has not expressly declared that the provisions in his will for the benefit of his widow, are given to her in lieu of dower. Will the widow’s claim of dower out of the testator’s estate, so disturb and defeat the other dispositions made of his property in his will, as necessarily and manifestly imply that it was his intention to exclude her from her legal right of dower % The testator, by the second clause of his will, gave.to his wife seven negroes absolutely. By the third clause, he devised to her a twenty-acre lot in the town ofHayneville,tobe improved and paid for out of his estate; and ho also gave her his carriage and horses, and household furniture, except one bed and furniture for each of his children'. By the fourth clause, he gave certain stock to his wife, then on his Dry Creek plantation. By the fifth clause he gave to his wife the one-fourth part of all the net proceeds of his estate, in money, during her widowhood, on condition she did not take from under the control of his exec[28]*28utors the seven negroes which he had given her, in the second clause of his will.
By the 7th clause of his will, the testator directs that his wife shall be comfortably supported out of his estate, during her widowhood.
The devise of the Iiayneville lot is all the provision which the testator has actually made for the widow, out of his real estate. The one-fourth part of the net proceeds of his estate, directed to be paid in money by the fifth clause of the will, is to be considered rather as a compensation for the labor of the slaves he had given her, so long as she permitted them to remain on the plantation under the control of the executor-, than as a charge upon his real estate. All the testator’s lands, except the Hayneville lot, ho devised to his three sons, to be equally divided between them, when the youngest became of age, or married. The widow derives her title to the seven negroes, and to the Hayneville lot and the improvements to be made thereon, to the carriage and horses, to the household furniture at Vineville, to the one-fourth part of the stock on the Dry Creek plantation, and to a comfortable support during her widowhood, from the bounty of the testator under the will. The testator had an undoubted right to make an absolute gift of this portion of his property to her; but in doing so, did he intend to bar her of her legal right to dower in his other lands 1 He has not so declared in his will. What disposition of the testator’s other property will necessarily be defeated by her claim of dower, and thereby clearly manifest such an intention on his part ? Not one that we can discover. The widow can take the Hayncville lot, and all the bequests made to her by the testator, and claim her dower out of the Pulaski lands, without defeating the devise of his lands to his three sons. The devise of the testator’s lands to his three sons, will be enjoyed by them, subject, it is true, to the widow’s right of dower. The devise to the sons will be less valuable, but that constitutes no objection. Ackley vs. Finch,1 Cowen's Rep. 290. French vs. Davis, 2 Vesey. Jr. 581.
The devisees of the land under the will of the testator, as well as the purchasers thereof, take it subject to the legal incumbrance of the widow’s dower. They take the land cum onere, and it does not necessarily follow, because their present enjoyment of the estate devised to them is rendered less valuable by the assertion [29]*29of the widow’s legal right of dowor, that this disposition of the testator’s estate will be defeated, so as to put the widow to her election, according to the rule which we have before stated. To defeat the widow’s legal right of dower, by an implied intention of the testator to exclude her, such intention must clearly and incontrovertibly appear from the face of the will itself; the provisions of the will must be so repugnant and wholly inconsistent with her claim of dower, in the particular portion of the estate to which the claim of dower is made, as necessarily to imply that it was the intention of the testator to bar her of her legal right to dower. In the case before us, no such repugnancy or inconsistency exists; not one of the dispositions of property made by the testator will be defeated by the widow’s claim of dower in the lands specified in the record. The question is not what the testator might have done, had the subject of dower been in his mind at the time of making the will; but the question is, whether we can say, from the dispositions of the will, it is impossible
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By the Court. —
Warner, J.
delivering the opinion.
This is an application for dower by the widow of Allen Tooke,. deceased, under the Statutes of this State. By our law, the widow is entitled to her dower, in all lands of which her husband died seized and possessed, and such as he acquired in her right, by his intermarriage with her. Prince, 249. On the trial of this cause on the Equity side of the Court, the Jury found a verdict in favor of the widow. The equitable circumstances charged in the bill, extrinsic of the will, were expressly denied by the answer, and supported but by one witness whose testimony was admitted by the Court. The verdict of the Jury must be considered as conclusive against the allegations made by the complainants, so far as the same relate to her waiver of her dower, and her acquiescence in the sale of the land by the executor. The testimony offered, and rejected by the Court below, only went to show, that the widow had received and enjoyed the benefit of the provisions made for her by the testator’s will,'so that the main question on this branch of the case is, whether the testator, by the bequests and devises to his widow, intended the same should be in lieu of her dower.
[27]*27The whole question, as was ruled by the Court below, is involved in the construction of the testator’s will.
[1.] The right of the widow to dower in the lands of her. deceased husband, is a legal right, of which she cannot be deprived by a testamentary disposition in her favor, unless such testamentary disposition, when taken in connexion with the other provisions of the testator’s will, necessarily be of such a character as to put her to an election, either to take the provision made for her by the will, or her dower. Without attempting to review and reconcile the numerous and conflicting decisions which are to be found in the books upon this “ greatly agitated subject,” as Ch. Kent calls it, in Adsit vs. Adsit, (2 John. Ch. Rep. 451,) we will state the rule which, in our judgment, is best sustained by principle and supported by authority.
In order to put the widow to her election, the testamentary provision in her favor must be declared in express terms, to be given in lieu of dower ; or the intention of the testator to that effect, 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 provisions, as necessarily to disturb and defeat them. Fuller vs. Yates, 8 Raige’s Rep. 325. Adsit vs. Adsit, 2 John. Ch. Rep. 448. Church vs. Bull, 2 Denio’s Rep. 430. French vs. Davis, 2 Vesey, Jr. 572. Strahan vs. Sutton, 3 Vesey, Jr. 249.
In the case before us, the testator has not expressly declared that the provisions in his will for the benefit of his widow, are given to her in lieu of dower. Will the widow’s claim of dower out of the testator’s estate, so disturb and defeat the other dispositions made of his property in his will, as necessarily and manifestly imply that it was his intention to exclude her from her legal right of dower % The testator, by the second clause of his will, gave.to his wife seven negroes absolutely. By the third clause, he devised to her a twenty-acre lot in the town ofHayneville,tobe improved and paid for out of his estate; and ho also gave her his carriage and horses, and household furniture, except one bed and furniture for each of his children'. By the fourth clause, he gave certain stock to his wife, then on his Dry Creek plantation. By the fifth clause he gave to his wife the one-fourth part of all the net proceeds of his estate, in money, during her widowhood, on condition she did not take from under the control of his exec[28]*28utors the seven negroes which he had given her, in the second clause of his will.
By the 7th clause of his will, the testator directs that his wife shall be comfortably supported out of his estate, during her widowhood.
The devise of the Iiayneville lot is all the provision which the testator has actually made for the widow, out of his real estate. The one-fourth part of the net proceeds of his estate, directed to be paid in money by the fifth clause of the will, is to be considered rather as a compensation for the labor of the slaves he had given her, so long as she permitted them to remain on the plantation under the control of the executor-, than as a charge upon his real estate. All the testator’s lands, except the Hayneville lot, ho devised to his three sons, to be equally divided between them, when the youngest became of age, or married. The widow derives her title to the seven negroes, and to the Hayneville lot and the improvements to be made thereon, to the carriage and horses, to the household furniture at Vineville, to the one-fourth part of the stock on the Dry Creek plantation, and to a comfortable support during her widowhood, from the bounty of the testator under the will. The testator had an undoubted right to make an absolute gift of this portion of his property to her; but in doing so, did he intend to bar her of her legal right to dower in his other lands 1 He has not so declared in his will. What disposition of the testator’s other property will necessarily be defeated by her claim of dower, and thereby clearly manifest such an intention on his part ? Not one that we can discover. The widow can take the Hayncville lot, and all the bequests made to her by the testator, and claim her dower out of the Pulaski lands, without defeating the devise of his lands to his three sons. The devise of the testator’s lands to his three sons, will be enjoyed by them, subject, it is true, to the widow’s right of dower. The devise to the sons will be less valuable, but that constitutes no objection. Ackley vs. Finch,1 Cowen's Rep. 290. French vs. Davis, 2 Vesey. Jr. 581.
The devisees of the land under the will of the testator, as well as the purchasers thereof, take it subject to the legal incumbrance of the widow’s dower. They take the land cum onere, and it does not necessarily follow, because their present enjoyment of the estate devised to them is rendered less valuable by the assertion [29]*29of the widow’s legal right of dowor, that this disposition of the testator’s estate will be defeated, so as to put the widow to her election, according to the rule which we have before stated. To defeat the widow’s legal right of dower, by an implied intention of the testator to exclude her, such intention must clearly and incontrovertibly appear from the face of the will itself; the provisions of the will must be so repugnant and wholly inconsistent with her claim of dower, in the particular portion of the estate to which the claim of dower is made, as necessarily to imply that it was the intention of the testator to bar her of her legal right to dower. In the case before us, no such repugnancy or inconsistency exists; not one of the dispositions of property made by the testator will be defeated by the widow’s claim of dower in the lands specified in the record. The question is not what the testator might have done, had the subject of dower been in his mind at the time of making the will; but the question is, whether we can say, from the dispositions of the will, it is impossible that the testator did not intend she should have what he gave her by his will, and her dower, which the law gives her. In our judgment she can take both what the testator gave her by his will, and what the law gives her, without defeating any of the dispositions of the. testator’s property made by it.
[2.] With regard to the Statute of Limitations, the Act of 1839, which limits the widow’s application for dower to seven years from the death of her husband, cannot apply to this case, for the reason that the testator died before the passage of that Act. The testator died in 1837. The Act of 1839 only operates prospectively. Hotchkiss, 435.
[3.] It is insisted, however, that the widow’s application for dower is embraced in the general words of the Act of 1767. By that Act, all suits or actions for land, are required to be instituted within seven years after the title or cause of action shall or may descend or accrue to the same, and at no time after the said seven years. Prince, 573. The argument for the plaintiff is, that this is a suit by the widow, to obtain possession of the land. It is an application by the widow to have her dower assigned to her, and to that extent it may be considered a suit; but, in our judgment, the application by a widow to have her dower assigned to her in the lands of her deceased husband, is not a suit to recover the possession of the land, which may be so assigned. The widow [30]*30could not enter upon the land for her dower, until it had been assigned to her; nor could she have maintained an action of ejectment for her dower, before the assignment thereof. Jackson vs. O’ Donaghy, 7 John. Rep. 247. Jackson vs. Vanderhyden, 17 John. Rep. 167. Jackson vs. Aspell, 20 John. Rep. 411. Wakeman and wife vs. Roache, Dudley’s Rep. 123. The cause of action, to recover the 2>ossession of the land, did not accrue to the widow until after the assignment of her dower; consequently the Statute of 1767 did not run against her; and her application for such assignment, is not within the provisions of that Act.
[4.] But it is further insisted, that if the widow is not barred by the Statute of Limitations, from asserting her right to dower in this case, yet, having accepted the provision made for her by the will, and acquiesced in the same since the death of the testator, she is now equitably barred from asserting her dower in the testator’s estate; that she is to be considered as having made her election to accept the provisions of the will in her favor, in lieu of dower.
In answer to the argument of the plaintiff in error, on this branch of the case, it is sufficient to say, that before any presumption of an election can arise against the widow, in consequence of her acts or acquiescence, it must be shown that she was cognizant of her rights, and acted understandingly. 2 Story's Eq. 359, §1095. Snelgrove vs. Snelgrove, 4 Dessaussure’s Rep. 300. Wake vs. Wake, 1 Vesey, Jr. 335. So far from the widow being cognizant of her right to dower in the estate of her deceased husband, she expressly alleges in her answer, that she did not know she was entitled to dower, and was wholly ignorant of the law upon that subject; consequently there is no foundation foi; saying that she is equitably barred from asserting her legal right to-dower in the lands of the testator. Let the judgment of the Court below fee affirmed.