
    
      Elizabeth Braxton vs. W. J. Freeman.
    
    A devise by husband to wife of his whole estate, real and personal, during life or widowhood, does not, though accepted, bar the wife from demanding dower, in lands aliened by the husband during coverture.
    
      Before Fhost, J., at Barnwell, July, Extra Term, 1852.
    The report of his Honor, the presiding Judge, is as follows :
    
      “ The plaintiff demanded dower in a tract of land which the defendant claimed under a sale by her deceased husband.
    “ Among other defences, the defendant pleaded that the demandant had elected to take the provision made for her by her husband’s will, in lieu and satisfaction of dower. In support of this plea it was proved that the demandant’s husband had, by his will, given to her the whole of his estate, real and personal, during life or widowhood; and that soon after his death the executor had delivered to her all the personal estate, of which, as well as of the real estate, the demandant had had the possession and enjoyment for a period of seven years.
    
      “ It was contended that such provision did not bar the demandant’s claim of dower, because the same was not expressly declared by the will to be in lieu of dower.
    
      “ It was held that although when provision is made for a wife by will, by the gift of a part of the testator’s estate, it may not be construed as a provision in lieu of dower, unless it is expressly declared to be so; yet, that the gift of the whole of the husband’s estate to his wife necessarily implies that is in lieu of dower ; and that the acceptance of such provision bars the widow’s right of dower.”
    The demandant appealed, and now moved this Court to set aside the non-suit in this case, on the ground:
    Because the bequests of the will of the plaintiff's husband in favor of the plaintiff, are not in the said will expressed to be in lieu of dower, and it is therefore respectfully submitted that the plaintiff is not barred of her dower in the land in question, which had been aliened by the testator prior to the execution of the said will, nor is there any repugnancy, either technical or substantial, between the provisions of the said will and the right to demand dower in the said land.
    Bellinger, for the motion,
    cited Park on Dow. 214 ; 1 Dali.
    417; 4 Kent, 58 ; Smith vs. Kniskern, 4 Johns. Oh. 9 ; Adsit vs. Adsit, 2 Johns. Ch. 448; Riley’s Oh. 205-7; Pickett vs. Peay, 2 Tread. 746 ; Brown vs. Caldwell, Sp. Eq. 322 ; Wilson vs. Hayne, Chev. Eq. 37 ; Caston vs. Caston, 2 Rich. Eq. 1; Gordon vs. Stevens, 2 Hill Ch. 48.
    
      Owens, contra,
    cited Bailey vs. Boyce, 4 Strob. Eq. 84, 95.
   The opinion of' the Court was delivered by

Wabdlaw, J.

The gift made by a husband’s will to his wife, either for life or in fee, of every thing that he owned at his death, apart from a distinct manifestation of a contrary intention, would be construed a benevolence: — the acceptance of it would by necessity exclude her demand of dower in the lands contained in the gift, for she could not demand against herself (Shep. Touch. 328; Caston vs. Caston, 2 Rich. Eq. 2:) but it would affect her right of dower in other lands which the husband had aliened during coverture, no more than it would«affect her right in a chose in action or any other thing to which she was entitled independent of the husband’s will. (Cunningham vs. Shannon, Eq. Mss. H. 407; Hitchens vs. Hitchens, 2 Vern. 403; Adsit vs. Adsit, 2 Johns. Ch. 448; and other cases cited in the dissenting opinion of Chancellor Dargan, 4 Strob. Eq. 92, Bailey vs. Boyce.)

It has been suggested here, that the devise of the remainder after the wife’s life estate, would be diminished and disturbed by the damages which the defendant, husband’s vendee, would recover from the husband’s executors for the breach of warranty that would be made by the wife’s recovery of dower in the lands conveyed to the defendant: that thence arises an implication in the will that the provision therein made for the wife should be in lieu of dower : and that her acceptance of it has barred her present demand'. Admitting that there was a warranty, and that the remainder will be diminished as has been suggested, the result at last will be that the remainder will be less valuable than had been expected, — that the testator was worth less than the remainder-men had hoped. The dower disturbs just as a debt of the testator would do. As a devise to a creditor would not of itself prevent his taking both his debt and devise, so a devise to a wife does not, of itself, have any effect upon her dower, which is no more subject to the disposition of a testator than is his debt. The right to either debt or dower may be extinguished by the acceptance of something which has been given for the purpose of satisfying it: but such purpose, in a husband’s will, when it is urged against dower, must appear by express words or necessary implication.

Motion granted.

O’Neall, Withers and Whitner, JX, concurred.

Motion granted.  