
    Reid vs. Campbell.
    DoWER. IVliat is a bar to (Lower — testamentary provision — election—1784 c. 22, § 8. — At common law, a widow was not put to her election between a testamentary provision and her dower, unless such provision was made expressly or by necessary implication, in lieu, or satisfaction of dower. But by the act of 1784, any provision for the wife in the husband’s will, either out of real or personal estate, puts her to her election, which must be made within six months (liter the probate of the will, or she will be bound by its provisions.
    
    About the year 1822, James M. Banks intermarried with Louisiana D. Cash. In October of that year, her father gave her several negroes, and at bis death, a tract of land, in Williamson county, of 512 acres descended from him to her and her- brother. Banks purchased from her brother his interest in the landj and added to it 80.0 or 90Q acres more. About the last of June, 1835, Banks died, seized and possessed of this and other property. He made and published his last will and testament on the 4th of June 1835. In it, after making a variety of provisions for the payment of his debts, and support of his family, which consisted of his wife and six infant children, all of which provisions were designed to preserve his property entire until his children should arrive at their ages of 21 years, he made the following provision for his wife, which was to take effect after the payment of his debts.
    “I give and devise unto m.y wife, Louisiana D., such part of the tract of land which descended from Thomas Cash deceased, as I am entitled to in right of my said wife, to hold to her heirs and assigns forever. 1 also give and bequeath to my wife, Louisiana D., l-7th part of all my personal estate, that shall remain after the payment of all my just debts, and the necessary expenses of the execution of this my will, until the payment of said debts: to have and to hold the same, to her, her heirs, executors, administrators and assigns for ever. Which land and personal estate shall be set apart to her as soon as my debts are paid as aforesaid. And in case there shall be a deficiency of timber or wood on the part of land so set apart to her, I do hereby will that she shall, during her natural life, be entitled to necessary timber or wood upon any of my lands adjoining the part so set apart to her. Then followed a devise of all his remaining property to his children.” The persons appointed executors of this will, renounced, and David Campbell, the defendant, Was appointed by the county court of Williamson, administrator with the will annexed.
    After his death, his wife intermarried with Thomas M. Reid, having first made an agreement in writing with him, that she should have and hold her estate, real and personal, and the rents, profits and proceeds thereof to her own separate use and disposal free from the control or liabilities of her husband. After the marriage, Reid executed a deed of conveyance and release, vesting her with a full right to all her said property to her separate use.
    Campbell, the administrator with the will annexed, proceeded in its execution, until the 26th of April, 1838, when Mrs. Reid filed her bill in the Chancery Court at Franklin, against him, and her husband, Reid, and her children, to have her half of the land which descended from her father, assigned to her by metes and bounds; claiming dower of her husband’s real estate; a child’s portion of his personalty, all the negroes given her by her father after the marriage with Banks, as to which, she alleged that, by deed, dated the 27th of October, 1822, her father had conveyed them to her and her issue for their own proper use and benefit, which deed,' she said, was found among the valuable papers of her husband, Banks, after his death; and she also claimed rents of her real estate and of the dower, which she prayed might be assigned her. And she called in question the proceedings of the ad* ministrator with the will annexed, and prayed that his powers and duties might be declared by the court, &c.
    Campbell filed his answer on the 21st of August, 1838, in which he entered into a detail of his administration; and he insisted that the complainant knew of the probate of the will at October session, 1835, of Williamson county court, and of his appointment as administrator, with the will annexed, at the January Session, 1836; and that she did not, within six months thereafter, notify her dissent to said will, but acquiesced therein, and in his administration thereof. He further insisted that the bequests in the will were intended by the testator to be in lieu and satisfaction of her right of dower in his real estate, and in compensation for the use of her land, and the hire of her negroes, if she was entitled thereto; to which bequests, he alleged, she had assented,' and acquiesced in them, by delivering him possession of said land and negroes, and never setting up any claim thereto, but always admitting that whatever rights she might have in the estate of her husband, she had underand by virtue of his said will.
    The surviving children, one of them having died, filed their answer on the 23d of October, 1838, by Richard Alexander, their guardian ad litem, in which they adopted and relied upon Campbell’s answer as to the claims of the complainant; and they prayed that the trusts of the will might be declared by the court, &c.
    The cause was heard by Chancellor Bramlitt on the i 6th of November, 1838. His Honor was of opinion that the testator had made “no provision in his will for the complainant in lieu of dower, and that there was no provision in his will inconsistent with her claim of dower.” He therefore decreed to her dower in his real estate, a child’s part of his personalty, rent of her dower, and of her own land; and appointed commissioners to assign the dower and to make division of the 512 acres of land descended front her father, between her and her children, and assign her in severalty one half of it in value; and the Clerk and Master was directed to take the necessary accounts to make this arrangement of the property.
    The defendants appealed to this court. Here, as in the chancery court, the debate and decision turned upon the construction of the act of 1784, c 22, § 8, the question being— whether when a testator makes no provision at all in his will for his widow; orno provision in lieu of dower, she is obliged to enter her dissent to the will in order to have the benefit of the allowance made by law in case of intestacy? Or whether she is only bound to enter her dissent in case some provision is made, but which is unsatisfactory ?
    January 3.
    Cook, for the complainant,
    said — It is admitted the personal estate is amply sufficient for the payment of debts, and the complainant does not seek to charge the administrator personally, but to have her real estate exonerated, and her dower assigned her. The widow did not dissent from the will within 6 months, as required by the act of 1784, and the first question is, has she a right of dower?
    There is no express bar of dower in the will, and nothing is given the wife in lieu thereof; therefore, we contend she is entitled to her dower.
    The widow’s right of dower is a common law right, and is not to be taken from her but by express words or necessary implication, — by giving something in lieu of dower, or making a disposition of the lands wholly inconsistent with the dower right. By the common law the wife was entitled to dower in all the lands of which her husband was seized during covert-ure. By the act of 1784, she only is entitled to dower of all the lands of which her husband dies seized.
    How does her right to dower stand since the act of 1784? Does she derive her dower right under that act?
    It is believed not. That act, though it professes to make a more ample provision for widows, actually abridges that right; since, instead of allowing the right to prevail as to all the lands of which her husband was seized during coverture, it confines it to those of which he died seized. As to these latter lands her rights stand as they did before the passage of the act of 1784. They rest upon the common law right. It is a right paramount to the right of the husband. He cannot defeat her of it, neither is it liable to his debts. She does not claim under him, but paramount to him, by the valuable consideration of marriage. 4 Yerg. 218.
    This being the widow’s right, it is never to be intended that the husband, in the disposition of his estate, intends to interfere with it. All his dispositions are supposed to be subordinate to it. He is not to be supposed as intending to dispose of that which does not belong to him. A devise then, of all his lands to his children, or others, is to be construed, his interest in the lands, such as he has a right to devise; and is to be taken subject to the dower of his wife, which was her property, and to which he had no right of disposition.
    This is the settled law in England and America. Clancy on Rights, 232-3-4, and cases there referred to, Roper on Property, 555, 558; Blount vs. Gee, 5 Call, 481; Jldsit vs. Jldsit, 2 John’s Ch. Rep. 9; Smith vs. Knishrn, 4 Johns. C. R. 9; Barbour & Harrington’s Dig. 439, 440; Wood vs. Wood, 5 Paige’s Ch. Rep.; I Cox 447, Dick. 655; 2 Sch. & Lef. 452; 2 Vern. 581; Pre. in Ch. 133.
    This being the law before, what effect has the act of 1784, requiring the widow’s dissent, on her dower right?
    We contend that act only applies to a case where the widow would, before, have been put to her election; to a case where the testator had expressly, or by necessary implication, undertaken to dispose of her dower. Then if she does not dissent within six months, her dower right passes by the will.
    Her failure to dissent is a statutory election to claim under the will, and claiming under it, she must give effect to all its provisions. But whenever she may claim under the will, and yet claim her dower; or, in other words, where no case of election is raised by the will, she need not enter her dissent to the will. She need not, because she assents to the will; the provision in the will being not inconsistent with the right of dower, she is entitled to it also.
    The two claims being consistent and not at variance with each other, why should she dissent? She is satisfied with the provisions of the will, seeing that all the provisions therein are intended, by her husband, as personal bounties, and he has not attempted to dispose of, or interfere with, her dower. This is the view the Supreme Court of North Carolina has taken of this subject.
    2. The administrator, with the will annexed, cannot execute the trusts of the will. They are personal confidences. 16 Ves. 27; Sugden on Powers 179, 4th Ed.; 1 Williamson Exr. 574; 2 Id. 628.
    January 4.
    3. The wife’s estate is only secondarily charged; and she has a right to have the general personal estate applied to the pay-ment of the debts, and as that fund is sufficient she is entitled to have the rents of her lands refunded to her. 2 Ves. Jr. 328 note; 4 Ves. 816; 3 Ves. 117; 4 Ves. 76, 82; 9 Ves. 447, 453; 11 Ves. 179, 186-7; 4 Des. Ch. Rep. 329; 4 Mad. Red. 69, 96; 5 Ves. 500; 2 Williams on Exrs. 1048, 1050; 3 John’s C. R. 412-5-6; 227; 2 John’s Ch. Rep. 614.
    David Campbell, the administrator with the will annexed, for the defendants,
    said that the case presented, for decision, two questions.
    1. Whether a widow, who has failed to enter her dissent to the will of her husband, within six months of the time when it was admitted to probate, as prescribed by the ‘statute, can, after the lapse of that period, dissent from it, and claim dower in his real estate?
    2. Whether she was not, in the case before the court, bound to elect between her dower, and the provisions made for her in the wilI,-and whether shs has not determined her election by excepting that provision; or, whether she can claim both her dower, and the bequests for her benefit?
    Upon these points he presented to the court, a very elabo-rate written argument.
    1. He admitted that, at common law, dower cannot be bar-red but by an express provision in lieu of it; nor, under the st. of 27 H. 8, c. 10, but by a jointure made in pursuance of the provisions of that law; and that to put a widow to election between a testamentary provision made at common law, and her legal provision, it must be manifest from the context of the will, that the testator intended the testamentary provision to be in lieu of dower. He cited, upon this first branch of the subject, 1 Haywood, 244; 1 Roper on Property, 457; Co. Lit. 36, b.; 1 Roper, c. 10; 10 Yerger, 94; 4 Rep. Vernon’s case. But he contended that the act of 1784 did not require that the will must expressly declare the provision to be in lieu of dower. The only requisition was, that the provision should be fully satisfactory to the wife. She was made, he said, the sole guardian of her own rights, and the sole judge whether the provision is satisfactory, and such as she ought to accept, and wave the dower; or reject and take her dower. This statute was, he said, a repeal of the common law doctrine on the subject. For its express declaration is, that any provision, whether of real or personal estate, unless rejected by the widow, shall bar her dower. As to the manner of construing the statute, he cited 4 Bac. Ab. 645; 1 Kent’s Comm. 431.
    
    2. As to the second question — Whether the provisions of this will were such as could make a case of election, according to the principles of the law as settled in England and this country before the passage of the act of 1784, he cited 1 Roper on Property, 554, 555; Clancy on Rights, 231, 232; 1 Roper 456; 4 Co. 3; Dyer, 146; 1 Roper, 465, 482; 2 Yes. & Beames, 222; 4 Cond. Eng. Ch. R. 236; S. C. 1 Jac. 506; 5 Madd. 62, 64; 7 Cranch, 370; 1 Russell, 192. He said that the cases admitted of the following classification: 1. Those in which there was a bequest to the widow of a pecuniary legacy, personal annuity, or other interest, which only affected the personal estate. 2. A rent or annuity to her, issuing out of, or charged upon lands of which she was dowa-ble, with or without a power of entry or distress. 3. Similar benefits, or any other given her out of a mixed fund, composed of the real and personal estate of the testator, whose will devises his real estate to her and other persons as trustees, or to other persons alone for sale, and directs the proceeds shall form a part of his personal estate. 4. Annuity to be charged upon the real and personal estate. 5. A limitation to her in remainder of the estate in which she is entitled to dower. 1 Roper on Property, 555; Clancy on Rights, 230, 250; Roper on Legacies, 414, 425; 4 Ves. 349; 1 Yes. Senr. 230; 3Atk. 433; 2 Yes. Jr. 572, 580; 2 Scb. & Lef. 444; 3 Bro. 347; 2 Id. 291; 6 Yes. 385; 2 Eden, 226; Arab. 466, S. C.; 1 Bro. C, C., 292 notes; Ambl. 730; 1 Ves. Jr. 335; 3 Bro. C. C. 255; 6 Ves. 216; 1 Russell, 129; 1 Sim. & Stur. 513;. 1 Bro- C. C. 445; 2 Dick. 685; 4 Kent’s Comm. 50, 3d Ed.
    
      January 16.
    Marshall on the same side,
    said, that as the testator has made an express provision for his widow, the complainant by his last will, and she has not dissented from it within six months, the dower sued for in this case cannot be recovered. Acts 1784, c 22, § 8; Croven vs. Croven, 4 Dev. 338, et seq.
    
    2. But if wrong in this position, then, we contend that the complainant under this will was put to her election between the provision made for her in the will, and the provision made for her by law, and not having dissented from the will within the six months, she has elected to take under the will, and is barred from recovering the dower prayed for. Acts 17S4, c 22, § 8; 4 Kent, L. 55; Roper on Property, c. 10, 455 to 518; 3 C. Eng. Cb. Rep. 354, Roadley vs. Dixon; Clancy on Rights, 230 to 250; 1 V. & B. 22, Chalmers vs. Storie; Butcher vs. Kemp, 5 Mad. Rep. 61; 7 Cranch, 370, Berber vs. Wr.n.
    
    The position of the complainant is, that the act of 1784, c 22, § 8, by the words, “express provision for the wife out of the realty and personalty,” &c. means nothing more than this, that the widow, when she was put to her election, by the law as it stood before that act, should elect under that act within six months; and that the complainant, not being put to her election under this will, between its provisions of and those of the law, by the law as it stood before the act, can still take the devises and bequests as a bounty, and her dower as a legal right, although she did not dissent from the will. It is submitted if this is not founded on a misconception of the objects and provisions of the act of 1784, of the intention of the testator, and of the law in relation to election in such cases.
    
      
      
         Seethe NOTE at the end of the case, where the alterations made in the common law on the subject of dower, by the St. of 3 and 4 Wm. 4, c. 105, are stated.
    
   Turley, J.

delivered the opinion of the court.

This bill is filed by the complainant for an allotment of her dower out of the real estate of which her first husband , , . . James M. Banks died seized, Her right to this allotment depends upon the construction which is to be given to his will in connection with the ant of 1784, c 22, § &.

James M. Banks died in 1835, leaving a last will and testament, by which he made provision for his wife, the complainant, out of his personal property, but not of his real, except so far as to her maintenance, until a division of his estate should be made, under the provisions of his will. The complainant never expressed any dissent from this will, until the time of filing this bill, which is more than six months after the probate of the will. And it is now contended,—

That inasmuch as by the law, before the passage of the act of 1784, c 22, § 8, the wife could not have been deprived of her dower in the lands of her husband, except by jointure before marriage, or by a provision for her in the will of her husband made expressly in bar of her dower, or which must from necessary construction be held to have been intended as such express provision, — she could not, by any provision for her, in a last will and testament be so barred, under the act of 1784, c 22, § 8, unless the provision were of such a character as to force her to an election, independent of the statute.

It is admitted that previous to the passage of the act of 1784, a provision for a wife in the will of the husband, did not necessarily conflict with her right of dower in the lands of her husband, unless there was a case of election under the will; and that until the election was made, her rights were .not concluded. But it is contended, that since that time, any provision for the wife in the will of the husband necessarily constitutes a case of election, and that this election must be made within six months after the probate of the will.

This brings us to an examination of the statute, which so far as is necessary for present purposes, is in the words following, to wit: "And whereas, the dower allowed by law in lands for widows, in the present unimproved state of the country, is a very inadequate provision for the support of such widows, and it is highly just and reasonable that those, who by their, prudence, economy and industry, have contributed to raise up an estate to their husbands should be entitled to share in it. Be it therefore further enacted, that if any per son shall die intestate, or shall make his last will and testa.ment, and not therein make any express provision for his wife, by giving and devising unto her such part or parcel of of his real or personal estate, or to some other for her use, as shall be satisfactory to her, such widow may signify her dissent thereto, before the judges of the superior court, or in the court of the county wherein she resides, in open court within six months after the probate of said will, and then and in that case, she shall be entitled to dower,” &c>

In the construction of this statute, it is contended, that by the terms of its preamble, we must intend that it was designed to place widows in a better situation than they were before, and that we cannot do this, if we compel them to elect under a will, in all cases, in which a provision is made for them, and within six months; because, that previous to the passage of the law, the widow was endowable of all the lands of which her husband was seized during coveiture; and because a devise of property to her did not necessarily deprive her of this right, or force her to an election.

At first blush, this argument has weight, but upon full consideration, it is well answered. 1 — The preamble of a statute never is resorted to but in cases of doubtful construction. Is this such a case? We think not. Rights of every kind depend upon, and are regulated by the laws of the community; and of necessity therefore, they may be changed and modified as the community may think proper, and in this particular there is no one right more sacred than another.

By the provisions oí the common law, a widow was en-dowable of all the lands oí which her husband was seized during coverture. There is nothing in the nature of our institutions, which would prevent a total change as to this right; even so far as to deprive her of it altogether. But the change made by the act of 1784, c 22, § 8, is a modification of her rights as they existed at common law, not a deprivation of them. And this modification exists in the provision, that she shall be endowed of the lands of which her husband dies seized — instead of the common law provision, that she shall be endowed of the lands of which he was seized during co-verture — provided he shall die intestate, or shall make his last will and testament, and not therein make any express provision for her which shall be satisfactory to her. But if a provision be made by will, she must express her dissent thereto, within six months after the death of he- husband, if such provision be not satisfactory to her.

Then a widow is only entitled to dower, when her husband dies intestate, or shall have made an unsatisfactory provision for her in his will. But inasmuch as the power to dissent changes the whole operation of the will, and opens the estate both real and personal to her rights, it is provided, and we think upon wise principles, that she must elect to take under, or against, the will within six months after the probate of the will, a period of time before any division, or distribution of the estate has been made, so that persons claiming under the will may know what their rights are, and not to be harassed by the claims of the widow at any indefinite time after the death of the testator.

This is not denied, if there be a case of election under the will, but it is contended that the statute makes no case of election, which would not have been such before its passage.

We do not think so. Previous to the passage of this act, no devise either of real or personal property would compel a widow to elect, unless it were given expressly in bar of hep dower, or under such circumstances, as by construction would be held to have been so intended; but by the statute it is provided, that a provision for her out of the real or per-, sonal estate of the husband shall of itself constitute a case of election, which must be made in six months after the probate of the will, or she shall be bound by its piovisions.

This is the first time this court has been called upon to give a construction to this statute upon this point, but it has. been elaborately examined by the Supreme Court of North Carolina, in the case of Mary Craven vs. Peter Craven, 4 Dev. 338, when it received the same construction now given to it. To the able opinion of Judge Gaston we give our full assent, and feel that we can add nothing to it in illustra-. tion of the principles therein contended for.

2. But if it were necessary to show that the widow’s situation was improved by the passage of the act of ¡784, it can be done. Previous thereto she had no fixed right to a portion of her husband’s personal estate; and of consequence she never could receive it, unless he should die intestate or give it to her by will. As the statute says, in the then unimproved state of the country, the dower in land was a very inadequate provision, and to prevent her being thrown upon It entirely for her support, it provides, that she shill have a part of the personalty, of which her husband can no more deprive her, than he can of her dower in land, provided she take the steps for the protection of her rights required by law. This was a great and important change in favor of the widow, and well justified the restrictions imposed upon her by the statute. There is no hardship resulting from the change of the common law, and the endowing her only of the lands of which her husband dies seized, because she is protected against gifts in fraud of her dower; and if her husband wills his real estate, it is converted into personalty, of which she is entitled to her distributive share under the statute.

Note. “Prior to the reign of Charles 1, five, and until the passing of the act 3 and 4 Wm. 4, c. 105, four kinds of dower were known to the English law.

1. Dower at the common law.

2. Dower by custom.

3. Dower ad ostium ecch$i(£.

4. Dower ez ass&nsu patris.

5. Dower dc la plus bcale.

This last was a mere consequence of tenure by knight’s service, and was abolished by st. 12 ('. 2, c. 24; and the 3d and 4th having long become obsolete, were finally abolished by the above statute of Wm. 4.

By the old law, dower attached upon the lands of which the husband was :«•)/«■«! any lime during the* marriage, and which a child of the husband might by possibility inherit; and they remained liable to dower in the hands of a purchaser, though various ingenious modes of conveyancing were contrived, which in some cases prevented the attaching of dower: but this liability was productive of great inconvenience, and frequently of injustice. The law too was inconsistent, for the wife was not dowable ou t of her husband’s equitable estates, although the husband had his curtesy in those to which the wife was equitably entitled. To remedy these inconveniencias, the statute above mentioned was passed, and its object may be stated to be, 1. to make equitable estates in possession liable to dower; 2, to take away the right to dower out of lands disposed ofby the husband absolutely in his life or by will; 3. to enable the husband, by a simple declaration in a deed or will to give the right to dower.

We cannot therefore see any just cause for the abuse which this law has received. It is plain and specific in its terms, find has, as it purports, ameliorated the situation of widows.

There can be then no reason for giving it the restrained construction contended for.

Being of the opinion then, that when provision is made fora wife in a will, she is bound to take under the will, and not-against it, unless she dissent within six months, after the pro-, bate, it follows, that the complainant is not entitled to the. relief sought, inasmuch as she has not complied with the provision of the statute.

Before the stat, 3 & 4 Wm. 4, c. 105, a fine or recovery by the husband and wife was the only mode by which a right to dower which had already attached could be barred, though, by means of a simple form of conveyance, a husband might have prevented the right to dower from arising at all upon lands purchased by him. By the above mentioned statute, it is provided that no woman shall be entitled to dower out of lands absolutely disposed of by her husband either in his life or by will, and that his debts and engagements shall be valid and effectual as against the rights of the widow to dower. And further, that any declaration by the husband either by deed or will, that the dower of his wife shall be subjected to any restrictions, or that she shall not have dower, shall be effectual. It is also provided, that a simple devise of real estate to the wife by the husband shall, unless a contrary intention be expressed, operate in bar of her dower.

Most of these alterations, as indeed may be said of many others, which have recently been made in (he ¿higlish real property law, have long been established in the United States. An account of the various enactments and provisions in force in the different states respecting dower may be found in 4 Kent’s Commentaries, 34 — 72.” Penny Cyclopaedia, Art. Dower; 1 Chitty’s General Pr. 252.  