Dow v. Dow , 36 Me. 211 ( 1853 )

Howard, J. —

The demandant is entitled to dower, unless her claim is barred by her acceptance of the provision made for her in the will of her husband. It is provided by the Revised Statutes, (c. 95, § 13,) that where such provision is made, the widow shall elect whether to accept it or claim her dower; but she “ shall not be entitled to both, unless it appears by the will, that the testator so intended.”

The personal property of the husband was bequeathed to his wife, the demandant; and in the same clause of the will is a further provision for her benefit, in the language following : — “ It is also my will and pleasure that my said wife should have the sole management and control, and receive all the rents and profits of all my real estate at the time of my decease, excepting what is herein bequeathed, so long as she shall remain my widow, or until our youngest surviving child shall be of lawful age ; but in case of her decease or intermarriage before that period, it is my wish that said real estate may be placed under the care and direction of such guardian of my minor children, as may be appointed by the Judge of Probate for the time being. It is, however, to be distinctly understood, that it is not my wish or intention, in any event, to deprive my said wife of the right of dower in any of my said estate, (except as above excepted,) which she would be legally entitled to, were I to die intestate.” The testator then provided in the next clause of his will, that when the youngest surviving child should become of age, all his “ estate then remaining, excepting the dower as aforesaid, and that, at the decease of my said wife, should be equally divided” between the surviving children named, including the tenant, in the same manner as property would be divided by law, among the heirs of an intestate estate.

By a codicil, the testator revoked and altered his will, “ so far as to give full force and effect to the several devises and bequests herein mentioned, and so far as the provisions made in my said will may be inconsistent with the provisions made in this codicil.” He then revoked the bequests and legacies to the tenant, and one other child, provided in the will, and devised by codicil to the tenant, specifically, the premises in which dower is now demanded ; and made additional bequests and devises to his wife, and other alterations in the disposition of his property, not material to the present inquiry.

There is no conflict between the will and codicil in respect to the demandant’s claim ; they may be construed and stand together. It is apparent that the testator intended, that his widow should not be barred of her claim of dower, in his lands not devised. He used the word bequeath in several parts of the will, not in its primary legal acceptation, but as synonymous with devise, as is shown by the context, and in that sense it must be interpreted, in giving a construction to the instrument. Wigram on Wills, 11. The terms “ dower in any of my said estate, except as above excepted,” refer to the exception of the realty devised. The word dower, both technically, and in popular acceptation, has reference to real estate exclusively. Perkins v. Little, 1 Maine, 148; Brockett v. Leighton, 7 Maine, 383. The definition of dower is the same at common law. But it is also apparent, that he intended that his widow should not be endowed of such portions of his lands as he chose to devise to others, if she accepted the provision made for her in the- will. Or, in other words, and within the purview of the statute, in respect to such lands, it does not appear by the will that the testator plainly intended, that his widow should be entitled to dower, after having elected to accept of such provision as he had made for her in lieu of dower, and she is therefore barred by statute.

The tenant, consequently, holds the premises devised to him, discharged of all claim of dower by the demandant, and a nonsuit must be entered.