CHAP. III. Such could not have been the testator's intent by reason of the inequality between the two interests, yet that objection in applica- was held to be immaterial.b Election considered tion to dower. Inconsistency of disposition with wife's claim to dower will raise a case of election. If the disposition made by a testator of his property is directly inconsistent with his wife's claim to dower thereout, having by the words he has used clearly meant the subject of devise, and not what might in contemplation of law be his interest in that property, and she is a party interested, she will be put to her election. As where a testator gave to his wife and two children all his estates whatsoever, whether real or personal, to be equally divided amongst them, and particularly specified the subject matter of disposition; the question being whether the wife ought to be put to her election as to her right of dower, the Master of the Rolls observed, that whether she took under the will an absolute interest, or for life only, it was a case of election, the claim of dower being entirely inconsistent with the disposition of the will:- that the testator directing all his real and personal estate to be equally divided, the same equality was intended to take place as well in the division of the real as of the personal estate, which could not be if the widow first took out of it her dower, and then a third of the remaining two thirds: and that the testator, by describing his English estates, excluded the ambiguity which Lord Thurlow in Foster v. Cook imputed to the words "my estate," as not necessarily extending to the wife's dower. d To the foregoing cases falling under the present head of inquiry, may be added the two following ones of recent adjudication, as further exemplifying the doctrine be fore us. A testator devised all his real and personal estate to trustees, upon trust, as to certain freehold messuages in P., for his wife during her life, if she so long continued his b Boynton v. Boynton, 1 Bro. C. C. 445. с Infra, page 259. a Chalmers v. Storil, 2 Ves. & Bea. 222.; and see Roberts v. Smith, 1 Sim. & Stu. 513. decided upon the same principle. Election tion to widow, and to pay her an annuity of 100%. out of the pro- CHAP. III. fits and income of his real and personal estate during such considered her widowhood; and upon further trust to pay his daughter in applicaN. an annuity of 100l. for life, and permit her to use oc- dower. cupy and enjoy his freehold messuage, &c. at B. for life; and made a residuary disposition in favor of any child his wife might be enceinte with at the time of his decease, and his five daughters, as tenants in common in fee: on the question whether the testator's widow was entitled to dower, and also to the provision made for her by his will, his Honor the Vice-Chancellor thought the testator had shown a plain intent that the trustees should take an interest in the house provided for his daughter, which would exclude the wife's dower, observing, that the testator directed the trustees to permit his daughter to use occupy and enjoy a certain freehold house for her life: - that he thought the testator contemplated for his daughter the personal use occupation and enjoyment of the house, which was inconsistent with the widow's right to dower out of that house: that the gift to the daughter was by a direction to the trustees to permit her to use occupy and enjoy the house, and the direction would be in vain unless he had previously given such an estate to the trustees, as would enable them to secure by their permission such occupation and enjoyment: - that the house was part of a general devise to the trustees of all his real estate; and the testator had not given the house to the trustees free from the widow's dower, unless he had so given his whole real Again, where a testator devised to trustees a farm containing about 136 acres during the minority of his daughter the defendant, upon trust to carry on the business thereof, or let the same upon lease; and upon her attaining twenty-one made a devise of the same to her in strict settlement: and by the same will devised eighteen acres of land to his wife for life, remainder to the defendant in fee, CHAP. III and also bequeathed to his wife several specific and pecu Election in applica tion to dower. considered niary legacies: the question being whether the widow was entitled to dower out of the farm given to the trustees during the minority of the daughter, the Vice-Chancellor decided her not to be so, conceiving that the testator's intention that his trustees should, for the benefit of his daughter, have authority to continue his benefit in the entire farm must be disappointed if the widow could have assigned to her a third part of the land. And he held the case to be within the principle of Miall v. Brain. & Where widow will not be put to an elec tion between dower and III. In what cases a widow will not be compelled to elect between her dower and a collateral satisfaction, but be permitted to enjoy both. Although a court of equity will not permit a widow, a collateral taking beneficial interests under her husband's will, to have satisfaction. her dower also out of his estates, when the same would be subversive of the dispositions contained in such will; but on the other hand will compel her to elect between the conflicting interests: yet if her taking dower would not operate to overturn the will in toto, and the gift to her is not said to be in recompence or satisfaction of dower, she may enjoy as well the interests communicated by the will, as her dower. Two early instances have been adduced by Mr. Swanston", wherein a court of equity has interfered to restrain a widow from enforcing her legal claim to dower, when the same was inconsistent with the intention either express or implied in an instrument conferring benefits in lieu of dower. A provision But the case of Lawrence v. Lawrence', which underwent wife, with great consideration, is usually referred to as having established the principle, that a general provision made by a husband for his wife will not be sufficient to raise a case of of election. election, unless he has expressly declared such provision to be in lieu of dower, or must necessarily be presumed to have so intended. And it moreover proves, that the cir made for a out more, will not raise a case f Butcher and Wife v. Kemp, h 1 Swanst. 398. in note; and see supra, page 248. i 3 Bro. P.C. [ed. Toml.] 483. cumstance of the gift being more valuable than the dower CHAP. III. will not alter the case. a Election considered tion to The case and several judicial decisions it underwent in applicawere as follows: A., being seised of certain manors and dower. estates worth about the yearly value of 550l., devised a manor and mansion-house and lands of the yearly value of 130%. to his wife during widowhood; and also made à further provision for her, by directing, that after the determination of two years of a term of twenty-four limited to trustees, they should permit her to receive the rents of a farm included therein of 60l. per annum; and after five years of the same term were elapsed, should permit her to receive the rents of another farm included therein of 90%. per annum for the remainder of the said term, so long as she continued a widow; and he also bequeathed to her several pecuniary legacies. In 1698, shortly after the testator's death, the widow recovered judgment in a writ of dower for a third part of the lands not devised to her, and the same was set out. In 1699, Lord Chancellor Somers, on a bill brought by the first remainder-man, decreed a perpetual injunction against the widow to stay further proceedings upon the judgment obtained by her. This decree was reversed by Lord Keeper Wright in 1702, and the widow continued in the enjoyment as well of the lands devised to her, as those assigned for her dower. In 1712, a bill was brought by a subsequent remainderman to be relieved against the judgment obtained in dower; whereupon Lord Chancellor Cowper in 1715 declared, that as to the dower, it being a point of right, and so doubtful in its nature that the Court had been of different opinions therein, and the determination in 1702 having remained ever since unquestioned, he did not think fit to make any variation from what was then determined as to that point. Finally, Lord Cowper's decree was carried before the House of Lords in 1717, when the same was affirmed.j j And see Ld. Raymond, 458.; Lutw. 734.; 2 Vern.363.; 1 Eq. Ca. Ab.218.; 2ibid. 386.388.; 2 Freem. 234.; 8 Vin. Ab. 361.; 9 Vin. Ab. CHAP. III. considered And where a testator devised certain lands to his wife, without mentioning the same to be in satisfaction of herin applica- dower; and devised the residue to his executors until his debts were paid: the Lord Keeper decreed the devise to be no recompence in bar of dower, but a voluntary gift. tion to dower. Money se cured to wife by bond after marriage will not of itself put her to an election between that interest and her dower. Parol evidence where not admissible to raise a case of election. Devise of k And where a testator devised lands to his wife for life, and others to the plaintiff in fee; and the lands devised to the wife were of greater value than her dower, but were not expressed to be in satisfaction thereof; and she brought dower against the plaintiff, and recovered, against which judgment he brought his bill to be relieved: Lord Chancellor Parker said, the point had been already determined by the House of Lords, and that there was no relief in equity in such case, and dismissed the bill.' Also where a husband gave a bond in the penalty of 1,000l. for securing 500l. to his wife in case she survived; the same was held to be no bar of her dower: and though parol evidence was tendered of her acknowledgment that it should be so, yet the same was not permitted to be read, being within the statute of frauds " and perjuries.' m n Again, where a testator devised an annuity of 50l. to his wife for life, payable out of his freehold and copyhold estates, with a clause of entry and distress; and subject thereto, devised the same estates to his three children : Lord Hardwicke held the wife to be entitled both to her dower and the annuity.° The last-mentioned case, and that of Pearson v. Pearson P, t will be observed are inconsistent with those of Arnold v. annuity to Kempstead, Villa Real v. Lord Galway', and Jones v. Collier, but were nevertheless followed by Lord Thurlow in Foster v. Cook. wife, without more, will not raise a case of election. t |