
    DODGE a. DODGE.
    
      Supreme Court, First District;
    
    
      General Term, June, 1860.
    Dowse.'—Election.—Intention of Testatoe.
    When it clearly appears by the will that the testator has distributed the residue of his property, after making provision for his widow, among his children, or other persons, in such proportion as he considered them entitled to, and that to allow the widow to take both the provision of the will and her dower out of the estate, would defeat, or materially lessen the allotments to all or any of the devisees or legatees,—the intention of the testator not to give her both the provision and dower out of his estate, is to be deemed plainly manifested, and the court should require the widow to elect.
    
    If a trust declared by the will is plainly inconsistent with any intention to allow the widow both her dower and other provision, she must be put to an election, even though the trust be void. 
    
    Appeal from judgment at special term on a trial by the court.
    This was an action to recover dower. The complaint, the material facts whereof sufficiently appear in the opinion, demanded judgment for a third part of the premises mentioned, and that the same be admeasured and set off to her, and for damages for its detention.
    On the trial of the action, at a special term, it was conceded that the plaintiff' had been duly paid the pecuniary allowance provided for her by the will. Judgment was given for the plaintiff, the court assigning the following reasons: “ There is no probability that the testator intended that the plaintiff should have both provisions. Tet as he has not said so in terms,.and there is no absolute incompatibility, she is entitled (under the authorities cited) to both, and is not obliged to elect.”
    From this judgment the defendants appealed.
    
      E. W. Dodge, for the appellants.
    I. From the whole plan of the will, it was manifestly the testator’s intention to grant the homestead and annuity in lien of dower. If the plaintiff preferred dower, she should have made her election within one year from his death. (2 Rev. Stat., 4th ed., 150, § 13.) The authorities which hold that the widow need not elect unless the testamentary provision is inconsistent with the claim of dower, are not supported by reason, and should not be followed. (Mills a. Mills, 28 Barb., 460 ; Lewis a. Smith, 5 Seld., 511.)
    II. Conceding the rule to be that the testator’s intention, if deduced from an inconsistency between the will and the claim, must be clear and manifest, the question then is, Will the widow’s dower disturb any of the provisions of the will? 1. It will subvert the annuity of $400 charged on the four houses in West Eleventh-street. 2. It will subvert the “ entire income” of the house Ho. 95 West Eleventh-street, which is given contingently to Josiah Dodge. . 3. The exercise of the power given to trustees to lease the real property, is inconsistent with the claim of dower.
    III. The' provisions in favor of the widow were intended for her support, and in lieu of dower. Having accepted them, equity will hold her to her election.
    
      Geo. T. Strong and Marshall S. Bidwell, for the respondents.
    I. The widow’s right of dower is an absolute legal right, founded on the highest consideration (7 Pet., 393; 1 Bay., 232 ; Co. Lit., 9, b ; 8 Paige, 328, 5 Hill, 207 ; S. C., in error, 2 Den., 430 ; 1 Sandf. Ch. R., 324); and the burden is on the defendants to show clearly that she has deprived herself of her right. (10 Paige, 269.)
    II. The question then is, is there such an irreconcilable inconsistency'between her dower and the provisions of the will, that effect cannot be given to both? “It should be clear, plain, and incontrovertable, that the testator could not possibly -have given what he has given consistently with her claim of dower.” (French a. Lewis, 2 Ves. Jr., 578, cited 1 Pow. on Dev., by Jarm., 454, note; 5 Law Lib. N. S ; see also Fuller a. Yates, 8 Paige, 325; Sanford a. Jackson, 10 Ib., 266; Jackson a. Church-hill, 7 Cow., 287; Bull a. Church, 5 Hill, 206 ; 2 Den., 430 ; Havens a. Havens, 1 Sandf. Ch. R., 324; Lewis a. Smith, 5 Seld., 502 ; Lasher a. Lasher, 13 Barb, 106; Seldon a. Bliss, 4 Seld, 35 ; Harrington a. Hughes, 1 Paige, 569 ; Gibson a. Gibson, 17 Eng. Law & Eq. R., 349 ; 2 Story's Eq. J., § 1088 ; 4 Kent's Com., 58.) The gift of an annuity and its charge on lands do not interfere with her right of dower; for the personalty is not exonerated, and, therefore, is the primary fund. (Town a. Lord Rens, 18 Ves., 132; Tait a. Lord Northwick, 4 Ib., 816 ; Lupton a. Lupton, 2 Johns. Ch., 614; Livingston a. Newkirk, 3 Ib., 312, 319 ; Seaver a. Lewis, 14 Mass., 83 ; and see Smith a. Kinskern, 4 Johns. Ch., 9; Wood a. Wood, 5 Paige, 596, 599 ; Fuller a. Yates, 8 Paige, 321.) Even if the annuity were a mere rent-charge, she would, nevertheless, be entitled to dower. (Holditch a. Holditch, 2 Yo. & Col. Ch., 18, 21, 22; Foster a. Cook, 3 B. C. C., 347; Dawson a. Bell, 1 Kern., 761: Hanson a. Hanson, Ib., 767.) The devise of the houses in llth-street is in terms subject to incumbrances, and her dower is an incumbrance. (Jones a. Gordon, 10 Johns., 266 ; 4 Mass., 630 ; 22 Puck., 447 ; 2 Greenl., 22 ; 3 Ves., 253.) A gift to trustees to receive the rents and profits is not necessarily inconsistent with the right of dower. (Lawrence a. Lawrence, 2 Frem., 234; 1 B. P. C., 591; 3 Ib., 484, and see cases above cited.)
    III. The dictum in Savage a. Burnham (17 N. Y. R., 561, 577, 578), is not an authority. The widow in that case died before the case was decided at special term ; there was no party to represent her, the question was not raised below, nor discussed in the Court of Appeals, nor passed on in its judgment.
    IV. The case of Mills a. Mills (28 Barb., 460), is decisive of this case.
    V. If the widow were put to her election, the law allows her a reasonable time to make it, after she ascertains, by a judicial construction, what her rights are (4 Kent's Com., 57 ; Adsit a. Adsit, 2 Johns. Ch., 451; Hone a. Van Schaick, 7 Paige, 222, 223), and she is, therefore, not yet barred, under any view of the will.
    
      
       In addition to the cases cited on the argument and in the opinion of the court, the reader may consult the following upon this subject:—Ellicott a. Mosier (3 Seld., 201); Swaine a. Perine (5 Johns. Ch., 482) ; Jones a. Powell (6 Ib., 194) ; Larrabe a. Van Alstyne (1 Johns., 307); Van Orden a. Van Orden (10 Ib., 30); Rath-bone a. Dyckman (3 Paige, 9) ; Hawley a. James (5 Ib., 318) ; Irving a. DeKay (9 Ib., 521).
    
    
      
       But it might be otherwise if the provision for the wife depended on the validity Of the trust from which the testator’s intention is inferred. (See Hone a. Van Schaick, 7 Paige, 221 ; Howland a. Heckscher, 3 Sandf. Ch., 519.)
    
   By the Court.—Mullen, J.

The only question presented by the appeal in this case is, whether, under the provisions of the will of Josiah Dodge, deceased, the widow is compelled to elect between the provision made for her by the will, and her dower, or whether she is entitled to both the provision and the dower?

The will devises to the wife, during her life, the use of the homestead at Troy, in Cheshire county, Hew Hampshire, except such part as he bequeathed to his son. He further bequeathed to her an annuity of $400 during life, payable semiannually in sums of $200 each—the first payment to be made in six months from his decease. This annuity was charged upon the testator’s real estate, situate in West Eleventh-street, in the city of Hew York. That real estate was disposed of as follows : Lots Ho. 89 and 93 to his daughter, Mrs. Flagg; and to his son, Ho. 91. It was further provided by said will that said lots should be holden to pay their respective shares of said annuity, in proportion to their assessed valuation in the public inventory of property. It was also provided that said Josiah should never possess the right to sell said premises, but they shall be held by a competent trustee, to be appointed by the Probate Court, which said trust shall cease at the death of said Josiah, and that said Josiah shall not receive any income from the rents or profits of said premises, unless he shall become the head of a family, in which case the entire annual income shall accrue to him; or if Josiah remain single at the age of forty years and upwards, and become infirm or unable to support himself, the trustee is directed to grant him an annuity of $100 for his support. It was farther provided by said will that, as there are certain incumbrances upon the Eleventh-street property, the proceeds and profits of said estate, after the necessary current expenses are paid therefrom, shall be appropriated as far as necessary, and are made liable to pay said annuity.

These are all the provisions of the will in relation to the Eleventh-street property.

It seems that the testator died possessed of a considerable amount of personal property, and seized of other real estate in Hew York and Hew Hampshire. He gave portions of the real estate out of the city of Yew York to each of his children, and to some of them shares of his personal estate.

Whether the division of his estate among his children was an equal one, neither the pleadings nor the evidence enable us to determine. It is enough for us to know that he was competent to understand the claims of the several members of his family upon his bounty, and he is to be presumed to have made such a division of his property as was right and just, in view of the situation and claims of his wife and children.

The right of the widow to dower in the lands of her husband, is superior to all other liens and claims upon it, not created by her act, or existing at the time of the marriage. The husband cannot, by any act of his, deprive her of this right. If he makes provision for her by his will, and does not declare that it shall be in lieu of dower, she is, as a general rule, entitled to both provision and dower. (Fuller a. Yates, 8 Paige, 325.)

Whether she is entitled to both, or is put to her election between the provision in the will and dower, is a question of intention on the part of the testator.

The intention to give'both is presumed, unless the other provisions of the will are such as to manifest an intention to put her to her election. (Lewis a. Smith, 5 Seld., 502.)

It has been held not to be enough that the other provisions of the will will be interfered with, but it must clearly appear that the testator would not have distributed his property in the manner in which it is distributed by the will, had he contemplated that the widow could have claimed, or been entitled to her dower in addition to the provision in the will.

When a testator makes a provision in his will for his widow, without declaring it to be in lieu of dower, and devises the residue of his property among other persons, it would seem to be an indication that he intended the division thus made should not be disturbed by his wife’s claiming dower out of the property thus distributed. But such a devise of the residue of the estate after making provision for the wife, has not been held such conclusive evidence of an intention to put the widow to her election, as to induce the courts to compel her to elect. Some more decisive evidence of intention has been required.

It seems to me, that when it clearly appears by the will that the testator has distributed the residue of his property, after making provision for his widow, among his children or other persons in such proportion as he considered them entitled to, and that to allow the widow to take both the provision of the will and her dower out of the estate, would defeat or materially lessen the allotments to all or any of the devisees or legatees— that the intention of the testator not to give her both the provision and dower out of his estate, is plainly manifested, and the court should require the widow to elect.

The rule that has heretofore prevailed, has in very many cases operated oppressively and unjustly on heirs and legatees, and mostifrequently in cases where either the dower or the provision of the will was amply sufficient for the wife, while giving her both, was ruinous to others entitled under the will.

In this case, it seems to me, that the provisions of the will in behalf of the children demonstrate, that it was not the intention of the testator to give the widow both dower and the provision. If she is entitled to the annuity, she takes it without diminution ; if she takes dower, she is entitled to one-third part of each house and lot on which that annuity is charged. The remaining two-thirds then must have charged upon them the whole of the share of such lot in payment of the annuity. If one-third of the annuity was extinguished with the assignment of the dower, in the Eleventh-street property, there would be less ground of complaint. But no such result is attainable. The whole annuity must be paid, and two-thirds of the property charged with it, must pay it.

Again, lot 95 West Eleventh-street is, by the will, given to a trustee in trust to receive the rents and profits-to be paid over under certain restrictions and limitations to Josiah during his life. It was intended as a provision for the support of himself and family, if he should have one ; and if the widow takes dower, one-third of the means of support thus provided, is taken away. Was such the intention of the testator ? It seems to me not.

The trust created, or intended to be created by the will for the benefit of Josiah, would be entirely inconsistent with the right of the widow to dower. But it is said that the trust is invalid, and is, therefore, to be considered as if no such provision was contained in the will. I do not agree to the conclusion. The controlling consideration in the construction of the wdll is the intention of the testator. And if the creation of the trust man ifests an intention inconsistent with the right of the wife to the provision and dower, it cannot change the intention, if the trust is subsequently declared illegal and void. The testator deemed it valid when he made it. It was one of the means which he adopted to give effect to his intention, and whether legal or illegal, the intention manifested by the provision should have effect.

Without occupying more time in discussing the question, I must declare my conclusion to be that-under the provisions of this will, the widow must be put to her election between the provision of the will and her dower. She cannot have both. 
      
       Present, Sutherland, Mullen, and Leonard, JJ.
     