1 Bro. R. 292. 32. A person devised to his wife an annuity of Villa Real 2001. a year, to be issuing out of his lands, with V. Galway, power of distress and entry; subject thereto, he de- note, Amb. vised his real estates to his daughter in strict settlement; and directed all his personal estate to be invested in land, and settled to the same uses. One of the questions in this case was, whether the wife was to take this annuity in satisfaction of her dower, or not. Two cases were cited; the first Pitts v. Snowden, where a man devised to his wife an annuity of 50%. a year, payable out of his freehold and copyhold estates, with a clause of entry and distress; and subject thereto, he gave his freehold estates to his three sisters. Lord Hardwicke decreed that the widow was entitled to dower, and also to the annuity. The second, Arnold v. Kemstead, where a testator gave some leaseholds to his wife for life, and also 107. a year during her life, or so long as she should continue a widow, out of the rents of his freehold estates, but without any clause of entry or distress; and devised all his freehold estates to his son. Lord Northington decreed that the widow must elect either her dower, or the annuity, but could not take both. Lord Camden.-The case now before the court is more exactly correspondent, in the form of the devise, to Pitts v. Snowden, than to the other case; for in these two cases there is an express clause of entry and distress, whereas there is no such power in Arnold v. Kemstead, and they more particularly resemble each other in another circumstance; as the annuity in both is charged upon other funds, not subject to dower, as well as upon the dowable estate; whereas in Arnold v. Kemstead the annuity is made to issue only out of the freehold estate, 682. c. 2. will; subject to dower. These two being alike in all their circumstances, I must admit that Pitts v. Snowden is an authority in point one way; Arnold v. Kempstead the other: The question upon this case is this: 1. Whether if a rent-charge is given to the widow, issuing out of the estate subject to dower, with power of distress, this devise shall operate as a bar, or satisfaction of dower. I am of opinion that it shall; because the claim of dower, 1. disappoints the and 2. is inconsistent with it. It is admitted vide Tit. 38. that every devisee must confirm the will in toto, if he claims any interest under it; and must consequently forfeit such interest, if he impeaches or interrupts any part of it. In this case the will is contradicted by the claim of dower, 1. Because it puts the trustees out of possession; for they cannot hold the whole, subject to the annuity and distress, without being in possession of the whole; nor can the annuitant, consistent with the will, take possession of any part, because her right accrues upon default of pay. ment. And though the present case gives the right of entry upon the whole, or any part, in more explicit terms than Pitts v. Snowden, yet the general power of entry, and distress, in Pitts v Snowden, is tantamount in this particular. The possession therefore of the trustees being coextensive with the annuities and the distress, it is not possible, in such a case, to make the land subject to the dower and the rent-charge at the same time; because, as annuitant, the widow must be out of possession of the whole; as dowress, she must be possessed of a part. Hence it follows, that where the testator gives the estate, subject to the annuity, as he doth in this case, he must be intended to give, subject to the annuity only; and the residue of the rents and profits being given to the devisee, must exclude all charges, except only the annuity. In this view of the matter, the widow, by the claim of dower, disappoints the will in the most essential part of the testator's plan, by reducing the interest of the devisee, and loading the estate with an additional burthen. 2. The claim of dower is inconsistent with the will in another light, as it will diminish the annuity itself; which is contrary to the very words of the will. The annuity is either given over and above the dower, or in satisfaction of it; he intended only one, or he intended both; if both, he intended both should be enjoyed in their full extent; the whole annuity, and the whole dower. Now, can the widow enjoy the annuity, as the will has given it, if she claims her dower? It is most clear that she cannot; for if she enters into a third, in right of her dower, she must sink so much of her annuity, as that third ought to bear in proportion: that is a violation of the will. And whether the annuity clashes with the dower, or the dower with the annuity, it is equally decisive; for she can never enjoy both, unless both can be reconciled to the will, nor is there any pretence to say that the whole annuity, by an équitable marshalment, shall be thrown upon the two remaining thirds, because that would in terms contradict the will, which charges the whole, and gives the power of distress upon the whole. This is sufficient to shew the testator's intention: it is an intention that does not stand upon a loose presumption, but from the mode of devising in the will itself; and then the case comes within the rule of Noys v. Mor- Tit. 38. c. 2. daunt, that no person shall dispute a will, who takes under it. This rule is universal, and without exception; and a dowress has no more right to be exempted from it than any other devisee. The cases of Lawrence ante, onere. v. Lawrence, Hitchin v. Hitchin, and Lemon v, Lemon, may be all admitted to be good law; the will in all these cases being consistent with the claim of dower. In all of them the dowable estate was devised generally; and as the testator had not expressed the wife's bequest to be in satisfaction, the Court would not presume it, and the estate passed, cura · There no violence was done to the will; and the wife took no more from the devisee, than the testator intended she should; nothing being declared to the contrary. But where the dowable estate is so divided, that the claim of dower makes a material change in the will itself, as it does here, the widow must be barred by necessary implication. For where is the difference between declaring that she shall not hold both, and devising so that she cannot hold both, without disturbing the will: therefore, if the claim of dower will disappoint the will, she is barred of her dower by necessary implication; which will, according to the doctrine of all the cases, be equivalent to an express implication. I will now say a word upon the case of Arnold v. Kempstead. There is no power of distress in that will, and yet I do not think it substantially within the reason of the other two cases; for the very gift of an annuity to the wife, out of the dowable estate, does, from the nature of the interest, throw her out of possession, and makes the claim of dower inconsistent with the will. I must not conclude without taking notice of a circumstance that may be urged against my opinion, as a proof of intention in the testator to give both dower and annuity to the wife; that is, that the annuity is made to issue out of more than the dowable estate; from whence it. may be argued that the testator enlarged the fund for payment, in order to leave sufficient for the satis faction of both the demands. I answer, first, that it is totally unknown whether he extended the charge and the remedy with that view; it is at most but a conjecture; and it may as reasonably be supposed that he meant only, by augmenting the security, to give an easier and safer remedy for recovering the annuity; as nothing is more common, where a rentcharge is granted, than to charge an estate of ten times the value for the payment of it: 2° that this supposed intention is rebutted by a declared intention to the contrary, manifested and expressed in the will itself. I wish these cases could have been reconciled, feeling in myself a modest unwillingness to sit in judgement upon two men greatly superior to myself in learning, as well as capacity: but that which in a private man would have been presumption, is an indispensable duty in a judge. The tax is imposed on me by my office, and I undertake it with more ease. of mind, knowing that there is a jurisdiction superior to us all, which is able to confirm or reverse my opinion, by a final decision. Decreed that the widow must make her election *. 33. There are however several modern cases, where a devise of an annuity to the wife, either entirely or partly charged on the estates out of which she is dowable, together with the gift of those estates to another, or a devise of them to trustees, has been held not to be in satisfaction of dower, but the widow has been allowed to have both t. * Vide Jones v. Collier, Amb. 750. Wake v. Wake, 3 Bro. R. 255 1 Ves. Jun. 335. Pearson v. Pearson, 1 Bro. R. 292. Boynton v. Boynton, 1 Bro. Rep. 445. + Vide Foster v. Cook, 3 Bro. R. 347. French v. Davies, 2 Ves. Jun. 572. Strahan v. Sutton, 3 Ves. 249. Greatorex v. Carey, 6 Ves. 615. |