
    ELEANOR WHITE v. PETER WHITE.
    In Dower.
    Testator by his last will, orders that his wife shall have one room in his dwelling house, and a comfortable maintenance out of his real estate, during her natural life or widowhood; and gives to his two sons R. and P. all his lands and buildings, to be equally divided between them in quantity and quality.
    
      -Held that the provision thus made is in lieu of her dower, she not having within six months after probate of the will, expressed in writing, her dissent, to receive the estate devised to her in lieu of her dower.
    It is not necessary for a will to expressly declare that a devise to the wife shall be in lien of dower, if the intention appear therein, that it is to be so, and that the claim of dower would be inconsistent with the will, or so repugnant to its dispositions as to disturb and defeat them.
    A plea, that a devise to the wife was intended to be in lieu of dower, is good on demurrer, without stating that it was so expressed in the will.
    A room in a house, is part of the real estate, for recovering possession of which, ejectment is a legal remedy.
    A plea that demandant agreed to release her dower, is bad on demurrer. So is also a plea that she did release it, without averment of its being by deed, or making profert.
    So is a plea that demandant released her dower in a pari of a farm to one tenant in common, virtitie eajus, the share of the other tenant is released from her claim of dower.
    This case came before the Court on demurrers to the pleas filed by the tenant.
    The demandant filed the usual count in dower for the third part of one stable, barn, orchard, garden, messuage, house, one hundred acres of pasture land, one hundred acres of woodland, one hundred acres of meadow land and two hundred acres of arable land; to which the defendant pleaded five, several pleas.
    1st. Bequest in lieu of dower.
    ■ 2d. Devise of real estate, and no dissent filed by widow.
    3d. Release and discharge.
    4th. Release to Richard by means whereof Peter is released &c.
    5th. Agreement and release, same as in third plea.
    To the first and second pleas there are general demurrers.
    John L. White, the husband of the demandant bequeathed to her the property she brought with her, and also one room in his dwelling house &c. maintenance &c. his farm during widowhood ; and he devised and bequeathed the remainder of his property to his two sons, consisting of a large farm of rising three hundred acres, with his personal property.
    
      Ilartshorne, for demandant.
    This is manifestly not a bequest in lieu of dower; there is no expression in the will excluding her, and there is nothing tc justify his intention to do so.
    The claim of dower must be inconsistent with the will, or sc repugnant to its provisions as to disturb and defeat them. Stark v. Hunton 1 Sax. C. R. 225.
    The claim of dower will not interfere with the devise of the property she brought with her.
    Nor with the gift of one room in a large dwelling house, as the testator might have deemed it necessary to give her that in addition to the third part, from circumstances within his own knowledge — they are not inconsistent — they may both stand together.
    Nor is the claim inconsistent with the provision of maintenance on the farm, because he might have thought that one third of the proceeds of his farm_ (being principally woodland) would not comfortably support his widow after paying the expense of tillage. The woodland, she could make no use of except for fire-wood. She could enjoy all this property bequeathed and her dower likewise, without defeating the provisions of the will.
    It cannot be supposed that he intended to cut off his widow by the use of one room in his large dwelling house and a paltry maintenance on his valuable real estate.
    But if it be a bequest in lieu of dower, yet she has her election, and by bringing this action, she has elected to take her dower.
    To establish an election, it must appear that she intended to make her election and that she imderstood her rights.
    
    
      The demurrer does not admit that the bequest was in lieu of dower or that she so received it.
    
    She has never lived in the room and enjoyed the maintenance. If the Court should be of opinion that it is a bequest in lieu of dower, the demandant is to have the privilege of withdrawing her demurrer, and contesting the fact of an election.
    
    
      The 2d. plea presents a more difficult question, to wit: Whether this is such a devise of lands or real estate, as comes within the meaning and intention of the act of the legislature, II. L. 677. It is simply a bequest of one room (or the use of it,) in a large dwelling house, during widowhood.
    The maintenance on the farm is neither lands nor real estate. It must be something more than a mere interest in or lien upon lands; otherwise by giving her a certain rent, or legacy chargeable on lands, would bar her.
    It must be a devise of lands or real estate in the broadest signification of those terms, to bar the widow of her right, which she undoubtedly has at common law. This act must be construed strictly as it is in derogation of the common law, and against the widow’s claim of dower which is favored by the law.
    The plain question then recurs. Is the use of a single room in a house during widowhood, land or real estate within the meaning and intention of the act ?
    Land is a word of extensive signification and includes houses, messuages, &c. but not vice-versa, the term house will not include lands. 2 Bl. Com. 19.
    When land is built upon, the space occupied by the building changes its name into that of a messuage or house. It consists of two parts, the foundation and the structure, and one name, to wit: a house. Hill v. Grange, 1 Plow. 170. 1 Bos. & Pull. 53.
    By the term messuage, land will not pass. Nor is it included in the signification. A house not being land, the use of a room is not. The word real estate is unknown to the common law, and is of modern date. It is frequently used in our statutes, as synonymous with land, or perhaps with a still more extensive signification.
    Unless the devise comes within the strict letter and meaning of the act, the widow is entitled to dower. If any doubts arise, she is entitled, as the law favors the widow’s right.
    But even if this should be considered a devise within the act, yet it is apparent upon the face of the will, that this bequest of ithe use of one room, was not intended to be in lieu of dower, and if any thing was so intended, it was the maintenance out of the lands.
    The testator owned a large farm of rising three hundred and eighty acres and which he devised to his two Sons; it is therefore certain, that he did not intend that the use of one room,, should be in lieu of dower in this large estate.
    In the opinion of Chancellor Vroom, in the case of Caroline E. English v. Executors of Doctor James English, “ it is stated that Doctor James English gave to his wife, his household and kitchen furniture, library, gold watch and also one thousand two hundred and sixty dollars, in cash. He also gave to her, a house and lot in New Brunswick. He farther gave her the interest of six thousand dollars, to be received by her in lieu of dower.”
    The Chancellor says “ this case is not within the supplement of the act relative to dower. R. L, 677. That act provides for cases where lands or real estate are given to a wife for life or otherwise, and without expressing whether the devise is intended to be in lieu of dower or not. In this case, there is no question as to the intention of the testator. He gave to his wife real estate in New Brunswick, but it is clearly expressed in the will, that this devise was not intended to be in lieu of dower, or to interfere with any claim of dower she might make. The annuity was expressed to be in lieu of dower, and that alone. There is no ambiguity whatever on the face of the will. This does not impugn the construction given to the act, in Stark v. Hunton, Saxton’s R. 216; for there was no expression of the testator, that the land devised was not in lieu of dower, the act clearly applied; and the opinion of the Court as then expressed, is to be taken as referring to such cases only.”
    In the case just cited, the testator gave his wife lands and that too without saying whether those lands were given in lieu of dower, but in the after part of the will it appears to have been the intention of the testator, that those lands should not be in lieu of dower, or to interfere in any way with her claim.
    So in the present ease it is clearly the intention of the testator that the use of one room should not be in lieu of dower, or interfere with her claim, in any way. And it is still more manifestly his intention, when it is considered that he owned a large real estate which he divided between his two children.
    To the third and fifth pleas, (which are the same in substance) there are special demurrers filed. And the causes of demurrer are the same to both pleas, to wit: that the pleas do not show whether the releases, discharges, and agreements therein mentioned, were in writing or by parol. It should appear that the release &c. was in writing. Unless it is in writing, it is no discharge of her claim. How far, equity would interfere and decree a specific performance upon the state of facts set forth in the pleas, is a question which cannot arise here. There is the defendant’s remedy, if he has any.
    To the fourth plea there is also a special demurrer and the causes of demurrer are that the plea is not direct and positive but argumentative, because it states that the demandant released one Richard White, of all claim of dower &c. therefore she released the defendant of all claim &c.
    And also that the said plea is double, and presents two points to be tried ; first, whether there is a release to Richard White, and secondly, Whether that is a discharge to the defendant.
    Richard and Peter, are tenants in common, and not joint-tenants, a release therefore to Richard can be no discharge to Peter, in his moiety — they are each seized of a moiety, though undivided.
    The plea does not allege, nor is it pretended that she released to Richard any thing more than her right in his share. She could not release any more. Such a release would have been void.
    The law cited by the opposite counsel in GMtty does not apply to lands held by tenants in common, who each have a distinct moiety, waiting only the operation of law to set it off to him.
    Why can she not release her dower, to one tenant, and claim it against the other who refuses to buy of her ?
    Suppose her husband had been tenant-in common with another person, could she not have claimed her dower, in the undivided part ?
    Why then not bring her writ for dower in the undivided part here, in which she has not released ?
    A recovery may be had in ejectment in an undivided part, and why not in dower ?
    
      J. F. Randolph, contra.
    The first plea alleges that the husband of the demandant, bequeathed to her — all this property she brought with her, when he married her — also that she should have one room, in his dwelling house, and a comfortable maintenance out of his real estate during her natural life, or widowhood — that testator died possessed and seized of said property which was forthwith taken possession of by demandant, and this plea avers that this bequest was in full satisfaction of demandant’s right of dower.
    To this plea, there is a general demurrer which of course admits the facts alleged and averred.
    lío express clause in a will is necessary to bar dower. Plaintiff’s counsel states correctly the rule of implication, as laid down in 1 Saxton Oh. R. 225. Chancellor Vroorn says — no express words are necessary. It is sufficient if there be a manifest and unequivocal intention — this is indisputably the doctrine, as contained in Saxton, also in 1 Cox Ch. R. 447. 1 Brown, Ch. R. 292, Villa Real’s Case. 2 Bro. C. R. 448.—We agree as to the law but not as to its application to the case in hand. When testator gave the demandant, the personal property, with a part of his house with a living out of his real estate, it clearly shews his “ manifest and unequivocal intention,” that she should not have dower, out of the same house, real estate.
    A living out of his real estate is a charge upon all his real estate. And the claim for dower, is so inconsistent with the bequest of a part of the house, and this charge, that it must disturb and defeat both. — For can the demandant be a devisee for life of one room in a house, and yet have the dower or third of that same room at the same time ? Or can she have a charge for a living, on the whole of the real estate, and yet have the one third of the same, by way of dower ?
    It cannot be so — the dower and the devise cannot exist together, she has the devise and is barred of the dower.
    The second plea alleges that the testator devised to the demandant, a part of his real estate viz. the said one room and a living out of his real estaté, for her life or widowhood — without expressing it to be in lieu of dower, and that she did not within six months from the time of probate filed in the Surrogate’s office, her dissent in writing.
    The act Rev. Laws, 677, sect. 1, uses the term “ land or real-estate for her life or otherwise.”
    
    
      The words “life or otherwise” comprehend any interest in lands or real estate; of course include an estate for life or widowhood. 1 Saxton, 225.
    The word “land” comprehends every thing of a permanent and substantial nature — and includes castles, houses, and other buildings, of course it includes parts of houses or rooms. And the word land includes house or its part, the term house or room of a house must necessarily include so much land as is necessary for its existence. But the legislature, have gone further and added the words “ or real estate.” 2 Bl. Com. 16 and 17.
    The word “ estate ” signifies that interest which a man has in property real or personal — and the term “real estate” comprehends any interest which a man has in lands, tenements, or hereditaments — a devise of a room, and a comfortable living out of testator’s real estate, creates not a chattel, but a real, a freehold, interest or estate.
    If the intention of the testator has any thing to do with the construction of the statute and the application of it to this case, it is perfectly manifest, that this devise to the widow, was intended to be in lieu of dower, .though not so expressed.
    Neither the size nor the value of the farm, is of importance, in this matter, but I believe, that the entiré bequest is worth more than the dower.
    If the bequest in this case, comes within the meaning of the words “ lands or real estate,” in the statute, then there can be no doubt that as the demandant neglected for six months, to file her dissent in writing, that she is now barred of dower.
    The case cited of English v. English Exrs. is not in point. There were in that case two different bequests, 1, the Louse and lot &c. without expressing it to be in lieu of dower, and 2, and the interest of six thousand dollars expressed to be in lieu of dower, — and the Chancellor in effect, decided that by expressing the personal bequest to be in lieu of dower, it was tantamount to expressing the devise of the house and lot not to be in lieu of dower, and so of course the statute did not apply.
    
      Stark et. al. v. Hunton and al. is in point as to the present case — a devise during widowhood. 1 Saxton 216.
    The third plea sets up a release or discharge of dower, for the consideration therein expressed, and the fifth plea, alleges an agreement between the demandant and defendant and iiis colevisee, and one, Sarah White, who had a lien for her living on the whole of testator’s real estate — by this mutual agreement, Sarah White was to live exclusively with the defendant, daring her life, which she in fact did do, and the demandant to live with Richard the co-devisee during her life; and the defendant’s half of the described premises, to be discharged from all claim of the demandant. It is also alleged that demandant in pursuance of said agreement, lived with Richard, a certain time and then released to him in writing.
    To these pleas, there are general demurrers and also special ones, because it is not stated, said discharge and agreement were in writing.
    The object of their demurrers is to raise before the Court, the question, whether under the statute of frauds and perjuries, a widow’s right of dower or as devisee, may be discharged by parol release or agreement.
    The right is such an interest as comes within the statute, but where the agreement has been executed, or only part performed, the case is taken out of the statute. 1 Comyn on Contract, p. 81 and cases — Roberts on Frauds, 153.
    In this case there was an entire performance of the consideration and agreement on the part of the defendant, and a partial! performance by the demandant; and to permit her now to avoid the release and agreement, would be to enable her to do an act of injustice and fraud against defendant.
    It is stated in the fifth plea that the demandant after the part performance of the agreement, released in writing to Richard— whether that is a sufficient agreement in writing to answer the requirements of the statute as to the defendant’s part, is submitted, to the Court.
    The fourth plea alleges that the locus in quo was devised jointly to the defendant and his brother Richard, and that defendant is in-possession of the whole; that demandant has released Richard’s-half, by writing, and now seeks dower of defendant. The demandant demurs first generally, a second specially.
    The first cause of special demurrer is that the plea is not direct and positive but argumentative, because it states the release to Richard to be a release of the whole property. If that is the legal effeet of the release, then the plea is good as to this matter, if not it is but surplusage.
    A release to one of several joint obligors, discharges the whole. Chitty on Contracts, 296.
    The second cause of special demurrer is that the plea is double, presenting two points, the release to Richard — and whether that discharges the defendant.
    If this be double, so would be any collateral agreement or matter set up by way of discharge. The demurrer admits the release, the Court will decide its effect. A plea is not double, though it groups many facts, if the object be to bring the whole to a single point.
    The plea alleges that the demandant cannot recover, because the locus is the undivided moiety of a farm devised jointly to defendant and Richard, to which Richard, she had released, the whole property being yet undivided and in possession of defendant, each fact is essential to the other, and all present a complete ground of defence, as is contended.
    Having released her dower in an undivided part, how can she bring her writ for dower in the residue?
   The opinion of the Court, was delivered by

Fobd, J.

This is an action for dower in a hundred acres of land; the count is in the usual form ; the tenant pleads five pleas in bar; the demandant demurs to each plea, and thus its sufficiency is put in issue, to the court. It appears that the husband in his will, made the following provision for his wife.

“ I give and bequeath to my beloved wife Eleanor White, all the property that she had or brought with her when I married her, and I further order that she shall have one room in my dwelling house, and a comfortable maintenance out of my real estate, during her natural life or widowhood. And I give and bequeath unto my two sons, Richard White and Peter White, all my lands and buildings, to be equally divided between them in quantity and quality; and I further order that my son Richard White, shall have my wagon and horses, and I also give to my son Peter White, my other wagon, and one yoke of oxen, yoke or vokes.”

The tenant avers in his first plea, that after the death of the husband, the widow accepted of the bequests made to her in the will; it further avers that those bequests were made to her in lieu and satisfaction of her dower. It is observable that in the will, they are not expressed to be in. lieu of her dower, and the demandant alleges a reason, why they were intended not to be so; that the estate consisted principally in wood-land, from which she could obtain nothing beside fuel; and knowing that one third of the residue, after deducting for labor and tillage, could not supply the exigencies of her condition, her husband superadded these bequests in his will, without expressing the slightest intention that they should be in lieu of her dower.

It was holden in former times according to 1 Inst. 36 b, that “ a devise by will cannot be averred to be in satisfaction of dower, unless it be so expressed in the will; ” but modern decisions do not maintain this dictum ; they hold that the will of a man is his intention, and whenever that intention manifestly appears, though not directly expressed in words, it shall prevail; therefore that a devise may be averred to be in lieu of dower, without being so expressed in the will, if the testator manifestly intended it to be so. It was abundantly established in the case of Villa Real v. Galway, 1 Bro. Rep. 292, that a devisee cannot claim under a will, which is an affirmation of it, and also claim so contrary to it, as to overthrow or disturb the testator’s materia] provisions therein made. The cases to this effect, are collected in 4 Kent’s Com. 56, where he infers from them, with great clearness, the general rule thus, “ that a testamentary provision must be declared in express terms, to be 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.”

The same doctrine is recognized by Vroom Chan, in Stark v. Hunlon, 1 Sax. Ch. Rep. 225. Now if the demandant shall be allowed to recover dower in the real estate, it will disturb and prevent the testator’s own provisions from being carried into effect. He has provided for her a comfortable maintenance, and has made it a charge upon his whole real estate, so that it goes with the estate as a burthen, into the hands of his two sons, Richard and Peter, the devisees; they are to furnish the maintenance, and in consideration of it, they are to have the whole estate. Now if the widow takes one-third of it for her dower, and they obtain only two-thirds of it during her life-time, it wholly deranges the testator’s settlement, which was that they should have the whole estate, and be liable in respect of it, for the whole of her maintenance. The will can never be executed according to his intent, for the sons will have only two-thirds of what the testator intended ; and the uttermost for the widow, would be only two-thirds of the maintenance provided and intended for her. The testator’s settlement would be broken up, and some other would have to be substituted in the place of it. Either the widow must lose her whole maintenance, or it must be apportioned on the sons according to the proportional part of the lands they obtain. If she by an act of her own, takes one-third of the land away from the sons, does she not discharge them from any maintenance ? “ If a man having a rent charge, purchases part of the land out of which the'rent issues, the whole rent is thereby extinguished, because wilfully and by his own act, he has prevented the operation of the charge on the land, according to the original grant.” IAtt. sec. 222; Oilb. on Rents, 152. If so, her claim of Dower, contravenes the will, by defeating the very maintenance the testator has provided for her. If it. be said that dower accrues by operation of law, not by her own act, and therefore that the charge shall not be entirely lost, but apportioned on Richard and Peter, according to the estate they actually receive, even this will defeat the disposition made by the testator, according to which the sons were to have all the land, and to furnish the whole of the maintenance. But the possibility of an apportionment, is questionable. A sum of money is apportionable into certain parts, but how will it be done with the thing called a comfortable maintenance ? ” the expense for which, will vary with peace or war prices, with dearth or plentiful seasons, nay with her own personal condition, whether it be that of sound health, or that of decrepitude and helplessness. What wisdom could make a permanent apportionment, of two-thirds, of such an ever varying thing as comfortable maintenance? But even if it could possibly be done, it would entirely defeat the testator’s arrangement. Therefore the plea is manifestly right in the averment, that .the bequests in the will to the widow, were intended by the testator, to be to her in lieu of her dower. Judgment must be accordingly rendered oil this plea for the defendant; nevertheless the demandant will be allowed to withdraw her demurrer, and to traverse her acceptance of these bequests, pursuant to the agreement of the parties, if she shall deem it advisable to do so.

The second pica avers, that the husband devised to the demandant, part of his real estate, to wit: a room in his dwelling house, and a comfortable maintenance out of his real estate; that he did not express whether such devise was to be in lieu of dower or not, that he devised overall his real estate; that the demandant survived him, that probate was made of his will; and that within six months after probate thereof, the demandant did not, in writing, express her dissent to receive the real estate so devised to her, in satisfaction and bar of her right of dower, as by the statute she was bound to do. To this plea, there is a demurrer admitting the plea to be true, that such devises were made to her, but denying that they conveyed to her, any real estate. The statute provides (Rev. Laws, 677, see. 1) that if a devise be made to the widow, of any real estate, whether for life or otherwise, it shall bar her right to dower in lands devised to others, unless she dissent in writing within six months after probate, to receive them in lieu of her dower. The demandant insists that the testator did not devise to her, any real estate, and that the plea shews none. The comfortable maintenance,” is denied to be cither land or real estate, within the meaning of the statute. And as to the room in the dwelling house, it is argued that the word house does not include any land, within its legal signification. In support of this position, we are referred to 2 III. Com. 19, where the author observes, that, by a grant of a aastle or messuage, and the like, nothing else will pass, except what falls with the utmost propriety under the term made use of. Now the author does not say that the land at the foundation of the castle does not properly tall under the term, or the grantee, could have by the grant only a castle in the air: he means that nothing more of land, than precisely what the castle covers, will pass by the word,castle or house, unless the word appurtenances, or some thing equivalent to it, is mentioned in the grant. The case of Hill v. Grant, 1 Plowd. 170, proves that the foundation of a house is in law considered a part of it; but even with that allowance, the passage in the commentaries has been considered too narrow, for it is laid down in 1 Inst. 5, that a grant of a castle, may convey a manor. But this is not the case of & grant; we are here considering a will, wherein the gift of a house may convey all the land within the curtilage. Carden v. Tuck, Cro. Eliz. 89; Doe v. Collins, 2 Ter. Rep. 498. On the same principle that a house is real estate, a room must likewise be so, in a house, as having its share in the foundation. If the widow should be put out of the room, may she not recover it in ejectment and have a writ of possession ? Ejectment will lie for “a chamber in the second story,” of a house, if a proper designation of the house be given; even “ de una rooma” has been holden good. Run. on Eject. 24, 25. Then this is a devise of real estate, from which the demandant did not dissent, either in the manner or within the time, required by the statute; her right of dower is therefore necessarily barred by law, and judgment on this plea, must be rendered for the defendant.

The third plea avers a consideration, for which the demand-ant agreed to release her dower; and the fifth plea avers that she did release it; not showing whether the agreement in the former plea, or the release in the latter, were in writing or by parol. For this reason there is a special demurrer to each. I am of opinion that neither of them is sufficient to bar the action, and that they must be set aside. An agreement to release dower, cannot operate as a release, until it be executed, it being only an agreement, which, if broken, may subject the demandant to an action on the case for damages; but cannot convey her title to land. Also, if the defendant pleads a release, he must shew that it is by deed, and make a profert of it in court, otherwise he deprives the adverse party of the right to see it and hear it read, and of the proper means of answering it.

The fourth plea avers that the premises consist of a farm, devised to the said Richard and Peter, equally to be divided between them, that the premises were in the sole possession of Peter, on a certain day, when, by a writing under her hand, the demandant released her claim of dower in said farm, on the part of the said Richard; ” by means whereof Richard’s portion of the said farm, then in the occupation of Peter, “and the said farm” be-leased and discharged from her claim of dower. The demand-ant demurs to this for duplicity, in that it first avers a release of dower in Richard’s moiety, and secondly, a release of it in the whole farm. But the allegation of duplicity is certainly a mistake; the plea presents only a single traversable fact, namely, a release of dower in Richard’s moiety ; the subsequent virtute cujus, only shews the operation and effect of it, in law, which cannot be traversed or put in issue to the country. Neither is the plea argumentative, as where one fact is stated, that another fact may be inferred from it. It is admissible to state a fact together with the operation in law. But there is a substantial objection to it, that a release of dower is pleaded without any profert of the deed. Moreover a release of dower in one moiety of a farm, will not operate in law, as a release of it in the other moiety; nor does a release of it to one tenant in common for his share, operate in law as a release of it to another tenant in common who has a different share. It has no analogy to releasing one of many joint and «everal obligors, where there exists but one debt, which becomes by a release to one, extinguished, as much as if he had paid it in money. Judgment must therefore be rendered, that this plea is insufficient to bar the action.

Horsblower, C. J. and Ryersost, J. concurred.

Judgment for the defendant on the first and second pleas, and for the demandant on the third, fourth and fifth pleas.

Cited in Keeler v. Tatnell, 3 Zab. 62; Van Arsdale v. Van Arsdale, 2 Dutch. 418-419; Colgate, Ex'r, v. Colgate, 8 C. E. Gr. 380.  