
    Dorcas Hall vs. Thomas Hall, et al., ex’rs.
    Parol evidence is inadmissible to show, that a provision in the will for the widow was intended to be in lien and bar of dower.
    Testator bequeathed to his wife certain articles of personalty and “ all the rest of the property she brought when I married herand he directed that “the rest of my property, real and personal, be sold and equally divided between my four children:” — He Id, that the provision for the wife was not in lieu of dower.
    BEFORE EARLE, J., AT FAIRFIELD, SPRING TERM, 1832.
    The report of his Honor, the presiding Judge, is as follows :
    
      “ This was a suit brought for dower by the plaintiff as widow of John Hall, the defendant’s testator. The marriage seizin and death of her husband were admitted. The defence relied on was, that a provision had been made by the testator for the widow in lieu of dower, which she had accepted, and this was pleaded in bar. The clause of the will is in these words: ‘ I give and bequeath to my beloved wife, Dorcas, one negro girl named Eliza, two beds and furniture, and all the rest of the property she brought when I married her; also, her share of money coming from the estate of William 'Glad-din, dee’d, and three hundred dollars to be paid by my executors. It is my will that the rest of my property, real and personal, be sold, and equally divided between my four children.” On the construction of the will itself I held that the provision made for the plaintiff was not in lieu of dower, and that it did not sustain the plea in bar. It was admitted that she had accepted the provision, and that the property is in her possession. Parol evidence was then offered to show that the legacy was intended to bar the plaintiff’s claim of dower, and that it was accepted by her with the knowledge of such intention. After argument, although I entertained doubts, I admitted the evidence; and John Hall, Sen’r, one, of the subscribing witnesses, deposed, that when the will was in the act of being written, the wife, now plaintiff, was called on and consulted. Two modes of providing for her were suggested by the deceased: one was to give her an equal share with the children ; the other to make the provision afterwards inserted in the will. She said if her husband would give her that property which is now specified in the will, she would be satisfied, and would never try to get one cent more from the children, and she would give her bond to that effect. The clause was accordingly inserted in the will as it now stands. A codicil was afterwards added giving her something more, He does not remember that the word dower was expressly mentioned, but the discussion was concerning the whole estate, real and personal, and what portion of the whole should be provided for her. The testator lived six or seven months after the execution of the will, but accumulated no property of value. He made a small crop of cotton, and four negroes that had run away, were brought in before his death. They were spoken of at the time, and it was stated that if they came in, the child’s part would be more valuable. She preferred the other provision. The cause went to the jury on that evidence, not as affording proof of any agreement on the part of the wife that could be binding on her, for perhaps she was incompetent to make any such, but as shewing the intention of the testator in making the provision under consideration. And I submitted the question to the jury whether the testator intended the provision made in the will to be in lieu and bar of dower, and whether it had been accepted after-wards by her with a knowledge of such intention ? And they were instructed that if they were satisfied from the evidence that such was the intention of the testator, and she knew it when she accepted the property bequeathed her; that then she had made her election, and she ought to be bound by it; and they should find for the defendant, otherwise for the plaintiff or demandant. The jury found for the defendants, and I thought they were warranted in their verdict by the evidence.
    The plaintiff appealed on the grounds :
    1. Because the Circuit Court -erred in permitting parol evidence to show that the testator made provision in his will for demandant in lieu or bar of dower, or that she accepted the 'sainé in lieu or bar of dower.
    2. Because the Court erred in charging the jury that they might infer from the facts testified to by John Hall, Senr., that the provision of the will was made in lieu or bar of dower, and that demandant agreed to receive the same in bar or lieu of dower.
    8. Because the verdict was contrary to law and evidence.
    
      Pearson and Pott, for appellant.
    
      Clarice and McDowell, contra.
   The opinion of the Court was delivered by

O’Neall, J.

The Circuit Court permitted parol evidence to be given, to show, that the provision in the will for the widow of the testator, was intended to be in lieu and in bar of dower, and the question first necessary to be decided, is, whether that evidence was admissible ?

The general rule seems to be very clear “ that parol evidence is not admissible to show the intention of the testator against the construction upon the face of the will.” Cambridge vs. Rous, 8 Ves. 22. The intention of the testator is to be collected from the whole will, and the words which he has used. It may be that in some cases, it is necessary to look out of tbe will, and take tbe words used in reference to bis situation or property, to obtain tbeir true meaning. But beyond tbis, construction cannot be aided by parol.

In Lawrence vs. Dodwell, 1 Lord Raymond, 438, tbe plea was that tbe testator devised his land in A. to bis widow for life, and that she bad entered upon it: and it was averred that it was devised to her in satisfaction of dower : judgment was given for tbe demandant, “ because the averment being of matter out of tbe will, and not contained in it, ought not to be allowed.”

If the averment of tbe fact in tbe plea was bad, it follows that evidence to prove it must be necessarily inadmissible.

In Ambler and wife vs. Norton, 4 Henning & Munford, 23, it was held that any estate conveyed by deed or will for a wife’s jointure in lieu of dower, though not so expressed, may be averred to have been so intended, and parol or other evidence dehors the deed or will is admissible, as to the relative situation of the parties, and circumstances of the testator, from which such intention may be inferred. That decision, however, was predicated upon the Act of the Legislature of Virginia, wherein it is enacted, “That if any estate be conveyed by deed or will, either expressly or by averment, for the jointure of the wife in lieu of dower, to take effect, and continue as in the Act is expressed, such conveyance shall bar her dower,” &c. It would be a sufficient answer to the authority of this case to say, that we have no such statutory regulation in this State. But on looking into the case, it will be seen that Judge Tucker maintains, and I think most successfully, that a mere devise of lands, slaves, and money, cannot be averred, even under the statute of Virginia, to be a satisfaction of the widow’s dower, for the reason that no evidence out of the will can be admitted to shew that it was so intended. Judges Roane and Fleming admit the English rule to be as stated by Judge Tucker, and rest their decision upon the construction of the Act of Virginia, and therefore sustained the plea which averred the devise to have been in satisfaction of the demandant’s dower. That case, however, would not sustain the admissibility of the evidence in this case; it only goes to establish the rule that parol evidence dehors the deed or will is admissible, as to the relative situation of the parties, and circumstances of the testator; and to this extent I should be willing to admit the soundness of the rule. As an illustration of my view of it, I put the following case : if a testator owns but one tract of land, and he devises to his wife an estate for life, in one-half of it, and she claims her dower in the other half, then I apprehend .that it might be shown by parol that he owned no other land, and that consequently the estate devised to her, being out of the very land of which she was dowable, and more than her dower, was a satisfaction. The evidence in this case was of conversations between the testator and his wife at the time the will was prepared, and were clearly inadmissible as “ parol discourses out of the will, which are of no signification,” “for it must be entirely in writing.”

We concur in opinion with the presiding Judge upon the next question, that upon a construction of the will itself, the bequest to the widow is not in lieu of her dower; there is nothing in the will which declares it to be in lieu and in bar of her dower; and unless it had been so expressed, or was necessarily to be implied from the nature of the estate devised, or the situation of the parties, we cannot hold that she is barred. Couch vs. Stratton, 4 Ves. 391.

The motion for a new trial is granted.

JOHNSON and Harper, JJ., concurred.

Motion granted.  