
    WASHINGTON COUNTY,
    April Term, 1798.
    Joseph Creacraft and wife v. Benjamin Wions.
    
      Kennedy vs. Nedrow, Dall. 415.
    
      CREACRAFT, having married the widow of Jabez Baldwin, sued for her dower of one third of 399 acres of land. A satisfaction and acceptance under the will was set up as a bar to this claim.
    By his will, dated 10th September, 1778, Jabez Baldwin .gave to his wife, now the wife of Creacraft, one third part of all his moveable estate, together with the use of one third of his lands, while she remained his widow, and also one cow over and above her thirds; and gave all the rest of his estate to his children.
    Annexed to the will, and of the same date, was a note signed by his wife, stating that she voluntarily agreed to the above will. And, on 4th March, 1791, her then husband Joseph Creacraft gave a receipt, to Caleb Baldwin, one of the executors, for a cow over her third part, agreeably to the will of Jabez Baldwin.
    It was proved, by the person who drew the will, that J. Baldwin and his wife talked together about the will, and that he drew it according to their directions; that he told J. Baldwin, that this was no more than the law would give her; that J. Baldwin then desired him to put in a cow besides the thirds; that she declared herself well satisfied, and, after his death, desired the executors to prove the will, and said, though she knew file could have her thirds, she did not want more than her husband had given her, nor to hurt the children; for her mother had done so and got a great estate, and ruined the children; and that, when the property was appraised, she chose and took a cow, as the one given her by will, and declared herself satisfied.
    
      Jabez Baldwin left eight children, and a personal estate of 2951.
    
    Campbell, for the plaintiffs.
    Whether the devise was intended to be in lieu of dower, must be ascertained from the will itself, and not from parole testimony. Dower is not barred by a collateral recompence, which will not be presumed to be in lieu of dower, but a benevolence.
    
      
      Ambler. 464, 682, 730.
    4 Co. 1. Hargr. Co. Lit. 36. b.n. 6, 7. 1 Eq. Ca. Ab. 218-9. 1 Bro. Parl. Ca. 538. 1 Bro. Parl. Ca. 591.—2 Atk. 427.-3 Atk. 8, 436. 2 Wms. 616. 7.-1 Vern. 356.-2 Vern. 365.-Dall. 415. Ambl. 464, 682, 730.
    Note.—There were three suits against three tenants. One had been tried before; there was a verdict for the defendant, and a motion for a new trial, postponed for the trial of this. It was recommended to remove the third into the Supreme court. This was done; and, in the mean time, no judgment was given, on either of the verdicts.
    
      
      Brackenridge, for the defendant.
    All the circumstances taken together shew a clear intention of the testator, that the devise should be in lieu of dower. It is not necessary, that this intention be expressed, if it be sufficiently implied. The devise has been accepted as a satisfaction, and is a complete bar to a claim of dower.
   President.

It is perhaps not so difficult to guess what the intention of the testator was, as to decide, that this intention is sufficiently expressed in the will, whence only it can be collected.

If this devise was intended in lieu of dower, the widow of Jabez Baldwin has been very little favoured by the will. All that she has got by the will, she would have got without it, except one cow; and, for that, her estate, which would have been during her life, is restrained to her widowhood, and determined by her marriage.

If a devise be given in lieu of dower, the widow may elect either, but cannot have both; and if she accept one, she is barred of the other.

But, unless it appear from the will, that the devise was in lieu of dower, the devise shall be considered as a benevolence; and the widow shall have both it and her dower.

But it is not necessary, that it should appear from express words of the will, that the devise is in lieu of dower; it is enough, that this intention be implied, and seem necessary to give effect to the will.

If the legacy and devise be instead of dower, the widow is barred by her acceptance; but if together with dower, she is not barred.

There is no express declaration in this will, that the devise and legacy should be in lieu of dower; and, unless this intention be implied, the plaintiffs must recover.

The only ground for such an implication in the will seems to be this, that, except the legacy and devise, all the rest of his estate is given to his children, and so nothing is left for dower,

The jury found a verdict for the defendant.

4 St. L. 155.

The act of assembly, of 4th April, 1797, has settled it, in future, that a devise shall be in lieu of dower, unless otherwise declared.  