Hovey v. Hovey , 61 N.H. 599 ( 1882 )

While, by the common law, dower was so highly rated in the catalogue of social rights as to be placed in the scale of importance with liberty and life (Park Dow. 2, 1 Scrib. Dow. 21), and although favor has always been bestowed upon this ancient and humane provision for the sustenance of the widow and the nurture and education of her children, yet if by the will of her husband "something is offered to her instead of dower, and the alternative is fairly presented to her mind, she will be bound by her choice, and her acceptance of such other thing is rightly held to be a surrender and release of her alternative right of dower." Ladd, J., in Brown v. Brown, 55 N.H. 107. Nevertheless, the mere acceptance of a testamentary provision in her favor will not deprive a widow of dower in the estate of her deceased husband unless he so intended; but when the intent appears from the will itself, or it is proved by other competent evidence that the provision was intended to be in lieu of dower, she must elect which she will take.

From an examination of this will, in connection with the statement of facts, we are of opinion that the bequests to the appellee were intended by the testator to be in satisfaction of her right of dower in his estate, and that enough appears in the will itself to put her to an election; and we are also of opinion that the fact that she acted under the will, and had the use and benefit of all the real estate, as well as the farming tools and stock thereon, for more than nine years before making any claim to dower, is sufficient to estop her now to deny an election to take under the will. Her conduct in thus receiving and enjoying for so long a period the valuable and profitable gifts conferred by the will, and to which she was not otherwise entitled, may well be regarded as an election to abide by the will, which precludes her from claiming dower; and to hold differently would be to give her an unconscionable advantage, which no rule of law or equity can sanction. See Bradfords v. Kents, 43 Pa. St. 474; Craig v. Walthall, 14 Grat. 518; Stark v. Hunton, 1 N. J. Eq. 216; Thompson v. Hoop, 6 Ohio St. 480; Big. Estoppel (2d ed.) 503. The appeal is sustained.

Degree of probate court reversed.

All concurred.