
    John D. Norris, sole executor of Noah Clark, deceased, vs. Elizabeth M. Clark and others.
    Dower is a legal right, which is favored both in law and equity. To debar the widow of this right, and put her to an election between her dower and a bequest in the will, there must be some express declaration of the testator excluding her from her right, or it must be clear, by implication, that such was his intention.
    In this case the words were, “I give, devise, and bequeath to mybalovod wife, Elizabeth M. Clark, six hundred dollars, at the end of six months after my decease, and my gold watch, which she carries, and the silver teaspoons, the two sets of window blinds in the back room, and the hal lamp, which she brought me at or after our marriage ; and her acceptance of the above gift shall for ever exclude her from any further demands on my estate.” It was insisted that the acceptance of tho gift excluded the widow from any further demand, only against the personal estate ; that the legacy was to be paid her by the executor, and that against that estate out of which the legacy was to be paid she was excluded from any further demands. It was held, that if the other parts of tho will gave no further indication of the testator’s intention, this construction might prevail. But as the testator had put both real and personal estate in the hands of the executor for disposition, and disposed of his whole estate, real and personal, through the executor, the person to pay the widow the legacy, and the disposition was inconsistent with the widow’s enjoyment of her legal right, it was the clear and manifest implication, from the whole will, that the testator did intend the gift to be in lieu of dower, and did not by the use of the word “ estate ” mean personal estate only.
    The bill was filed to compel Elizabeth M. Clark, the widow of Roah Clark, the complainant’s testator, to elect between her dower and a legacy in the will.
    Elizabeth M. Clark, by her answer, insists that she is entitled to the legacy as well as her dower.
    The will is as follows :
    “In the name of God, amen. I, Roah Clark, of the township of Springfield, in the county of Essex, and state of Rew Jersey, being in good health, sound mind, and disposing memory, for which I thank God, wTto has so favored me, and duly considering the mortality of my body, and knowing that it is appointed for man once to die, and the time when very uncertain, do make and publish this my last will and testament.
    First, of all. I give and recommend my soul into the hands of God, who gave it; my body I commit to the earth, to be buried in a christianlike and decent manner, at the discretion of my executor, and as touching such worldly estate wherewith it hath pleased God to bless me with in this life, I give and dispose of in the following manner.
    Second. I direct that all my just debts and funeral charges be paid.
    Third. I give, devise, and bequeath to my beloved wife, Elibabeth M. Clark, six hundred dollars, at the end of six months after my decease, and my gold watch, which she carries, and the silver teaspoons, the two sets of window blinds in the back room, and the hall lamp, which she brought me at or after our marriage; and her acceptance )f the above gift shall for ever exclude her from any further demands on my estate.
    Fourth. I give, devise, and bequeath to my eldest daughter, Mary P. Smith, the interest or dividend of twenty shares of my bank stock in Elizabeth State Rank, whom I hereby authorize to receive and receipt for the same, and no other person.
    Fifth. And at Mary P. Smith’s decease, I give and bequeath the interest or dividend of the above named twenty shares of bank stock to be equally divided between Elizabeth Stephens and Benjamin C. Crane, to be receipted for with their own hands, and no other person.
    Sixth. I give, devise, and bequeath to my grand daughter, Abigail O. Crane, the interest or dividend of seventeen shares of bank stock in the above said bank, to be receipted for with her own hand, and no other person; and if either Elizabeth C. Stephens, Abigail O. Crane, or Benjamin C. Crane should die not leaving a lawful heir, in that case their interest and benefit in my estate shall descend to the survivors or survivor of the longest liver. And at the death of my three grandchildren, Elizabeth C. Stevens, Abigail 0. Crane, and Benjamin C. Crane, I give, devise and bequeath the twenty shares of bank stock last mentioned to be equally divided amongst the lawful heirs, the children of the three that is then living at the decease of the last of the throe ; and if these should leave no lawful heirs, then and in that case I order that the twenty shares be divided as the surplus according to the last section of this my will.
    Seventh. I give, devise and bequeath two thousand dollars to my daughter, Elizabeth S. Morris.
    Eighth. I give, devise and bequeath to my daughter, Permelia C. Hedges, two thousand dollars.
    Hinth. I give, devise, and bequeath to my grand daughter, Mary Permelia Clark, of St. Francisville, if she should arrive at the age of eighteen years, five hundred dollars.
    Tenth. I give, devise, and bequeath to the Bible Society of Hew York one thousand dollars on the following condition: that the directors thereof shall furnish the whole value of that sum in Bibles, and by and under the direction of said society, the Bibles shall be sent, at their discretion, to any place or country where they shall net and afford the highest price; the amount and proceeds shall be returned, and remitted to the society again, which society shall again furnish its value in Bibles, and again send them to the best market, and so continue to furnish the worth of the proceeds until the world is furnished with Bibles, or until the whole sum is lost in deficiencies ; and said society shall be under obligations to report once a year the number of Bibles furnished and sold, and the state of the fund at the end of each year, through the Missionary Herald at their own yearly report, a copy of which shall be sent my executor.
    Eleventh. I order and direct the remainder of my obligations, my house and lands, to be converted, with the moveables, into money, and divided amongst my heirs, as follows: one-third part to he put out at interest, secured by bond and mortgage, the interest of which shall be paid to Abigail O. Crane and Elizabeth C. Stephens, during their lives; and if either should have lawful children, they shall receive the principal, with the uncollected interest that may remain; and one-third part to Rermelia C. Hedges, and one-third part to John D. Norris, for his services in settling my estate.
    Twelfth. I constitute and appoint John D. Norris my sole executor, whom I authorise to execute my will, and do all things pertaining to my estate. — In witness whereof, I have hereunto set my hand and seal, January fifth, one thousand eight hundred and forty-nine.”
    
      A. C. M. Pennington, for complainant.
    
      W. K. McDonald, for defendant.
   The Chancellor.

The question is, was the legacy to the wife in lieu of dower ?

It is true dower is a legal right, which is favored both in law and equity. To debar the widow of this right, and put her to an election between her dower and. a bequest in the will, there must be some express declaration of the testator excluding her from her right, or it must be clear, by implication, that such was his intention. The authorities will be found in 2 Williams on Ex. 889, and the notes, and in 1 Rop. Husb. mid wife 577; 2 Rop. Leg. 530. See, also, Stark et al. v. Menton et al., Saxton 224. The rule, as laid down by Lord Redesdale in Birmingham v. Kirwan, 2 Scho & Lefr. 452, has been always recognized: It is to to be collected from all the cases, that as a right to dower is in itself a clear legal right, an intent to exclude that right by voluntary gift must be demonstrated, either by express words or by clear and manifest implication. If there be anything ambiguous or doubtful, if the court cannot say it was clearly the intention to exclude, then the averment that the gift was made in lieu of dower, cannot be supported; and to mate a case of election that is necessary, for a gift is to be taken as pure until a condition appear. This I take to be the ground of all the decisions.”

The principle upon which the court will act is well settled. The difficulty is in its application, and has given rise to conflicting decisions.

In this case the devise is, “ I give, devise, and bequeath to my beloved wife, Elizabeth M. Clark, six hundred dollars, at the end of six months after my decease, and my gold watch, which she carries, and the silver teaspoons, the two sets of window blinds in the back room, and the hall lamp which she brought me, at or after our marriage ; and her acceptance of the above gift shall for ever exclude her from any further demands on my estate.”

It is insisted that this does not amount to an express declaration excluding the right of dower, and that the acceptance of the gift excludes the widow from any further demand only against the personal estate; that the legacy is to be paid her by the executor, and that against that estate, out of which the legacy is to to paid, she is excluded from any further demands. If the other parts of the will gave no further indication of the testator’s intention, this construction might prevail. Although in the case of Boynton v. Boynton, 1 Brown’s Rep. 447, where the testator had given to his widow, in the event of her marrying again, one hundred pounds a year, as the full benefit she was to derive from his estate, the Lord Chancellor said, “By these expressions, I rather think he intended his estate should be quite clear of her,” and he so decreed. And also in Warburton v. Warburton, 23 E. C. L. R. 416. But see Parker v. Sowerby, 27 E. C. L. R. 154. But I think it appears, by clear and manifest implication from the whole will, that the testator did intend the gift to be in lieu of dower, and did not, by the use of the word “ estate,” mean personal estate only.

In the first place, he puts his whole estate, both real and personal, in the hands of his executor for disposi tion; and the whole will shows that, by the use of the word estate, he means both real and personal estate. There can be nothing, then, in the idea that the executor has control only of the fund out of which the legacy is to be paid, and that the estate in the hands of the executor should be regarded as different and distinct from that out of which the widow has her dower.

In the next place, the testator disposes of his whole estate, real and personal. He disposes of it through the executor, the person to pay the widow the legacy; and the disposition is inconsistent with the widow’s enjoyment of her legal right. The testator directs his house and lands, which it is admitted is all the real estate of which he died seized, -to be converted into money, and the money divided as therein directed.

To allow the claim of dower would disappoint the will. The disposition of the testator’s property is such as to leave no fund for her claim of both. Vallareal v. Lord Galway, Ambler 683. I think it is clear that the testator intended his executor should sell only his real estate free from emeumbrcmce. If such was his intention, he intended that the gift to his wife should bar her of her dower. In the case of Herbert and others v. Wren and others, 7 Cranch 379, Marshall, C. J., says, The clause, too, directing the residue of his estate to be sold for the payment of debts, is indicative of an expectation that the property stood discharged of dower, and is a complete disposition of his whole estate. The testator appears to have considered himself as at liberty to arrange his property without any regard to the encumbrance of dower.” But in the case of Gibson v. Gibson, 17 E. L. & E. R. 352, the Vice Chan eellor did not give much weight to a like clause in the will, as a question of the widow’s right to her dower.

If it is proper to consider the relative value between the legacy and the dower, there is nothing in it repugnant to this construction. The legacy is about the value of the dower, as would appear from the pleadings. I think there is something, too, in the fact that the widow has no other demand against the estate than her right of dower. This is admitted by the answer.. As the legacy was for ever to exclude her from any further demand on the estate, what demand did the testator refer to, if not the demand of dower?

The widow must make her election.

Cited in Freeland v. Mandeville, 1 Stew. 563, 564.  