
    Hannah Fulton v. H. and M. Fulton.
    Dower. — A bequest of a personal legacy by the husband to the wife, does not bar her claims for dower in his realty.
    Appeal from the Probate Court of Kemper .county. Hon. W. G-. Gill, judge.
    The will of Samuel Eulton was proved in the Probate Court of Kemper county, at the October term, 1852.
    
      On the 9th clay of March, 1854, the appellant, the widow of • said Samuel Fulton, filed her petition in said court, for dower in his lands.
    The defence to the petition was:—
    1. That the second clause of the will of the said Samuel Fulton, contained a pecuniary bequest to the petitioner, which she had not renounced.
    2. That the intention of the testator, as expressed in the eleventh clause of his will, could not be carried out if the petitioner’s claim of dower was allowed.
    The second clause of the will of the testator was in the following words: “ I do give and bequeath to my beloved wife, Hannah Fulton, one thousand dollars; also one horse, with saddle and bridle, worth one hundred dollars; also one good feather bed, with good and sufficient furniture.”
    The eleventh clause of the will of the testator was as follows : “All the balance of my estate, both real and personal, to be equally divided between my aforenamed children, viz: David, John, Samuel, Hiram, Madison, William, Green G., and Elizabeth.”
    The court “ overruled and dismissed” the petition, “ upon the ground that the petitioner was barred by the statute.”
    The error assigned is: That the court erred in dismissing said petition.
    
      George L. Potter and J. S. Hamon, for appellants,
    Cited Hutch. Code, 620, §§ 45, 46, 48; lb. 621, § 1; Church v. Pull, 2 Denio, 430; 5 Hill, 206; 1 Bright, Hus. and Wife, 549, 550; Sandford v. Jackson, 10 Paige, 266; JEvans v. Webb, 1 Yeates, 424; Jackson v. Churchill, 7 Cow. 287; Adsit v. Adsit, 2 Johns. Ch. R. 450.
    
      Freeman and Dixon, for appellees,
    Cited Brisland v. duett, 11 S. & M. 168; James and Wife v. Poowan, 6 lb. 401; Hutch. Code, 622.
   Fisher, J.,

delivered the opinion of the court.

This was an application by tbe appellant to tbe Probate Court of Kemper county, for tbe allotment of dower in tbe lands of ber deceased husband. It appears that tbe petitioner received a legacy of personal estate under ber husband’s will, not having renounced tbe same; and tbe question for decision is, whether such legacy operates to defeat ber claim to dower in tbe real estate; no devise of any part of tbe same having been made to ber by tbe husband.

The'statute on this subject, in our opinion, does not admit of that construction. Tbe legacy of personal estate can only operate to bar tbe widow’s claim to dower, when it appears by tbe will itself, that such legacy is expressly given in lieu of dower. Hutch. Code, 620, §§ 45, 46, 4T, 48.

Decree reversed. Decree for dower to be entered in tbe court below; and cause remanded.  