to her election unless it clearly appears from the will that the provision made for her was intended as a substitute for that to which she was entitled by law. The intention need not be declared in express words, however, but may be implied if the claim for dower is plainly inconsistent with the will.85

§ 820. The Same Subject.

Although the widow's right to dower is favored by the law, yet the right to both dower and a testamentary gift in her favor must yield to the intention of the testator whether expressly stated or clearly implied. In a case of reasonable doubt the widow will be held entitled to both; but when the intention of the testator is clearly to the contrary, she will be put to her election. This intention must appear from the face of the will, read in the light of existing facts.30 Such intention is not by

devise of the will "be so repugnant to the claim of dower that they can not stand together."

In Vernon v. Vernon, 53 N. Y. 357, 361, it was declared that dower is not barred "unless the claim of dower is inconsistent with some other disposition of or arrangement made by the testator in respect to his property, thereby showing an intention to substitute the testamentary gift for the provision which the law makes for her." The court then repeated with apparent approval the following declaration of Lord Redesdale, in Birmingham v. Kirwan, 2 Schoales & L. 444, 452: "The result of all of the cases of implied intention seems to be that

the instrument must contain some provision inconsistent with the assertion of a right to demand a third of the lands to be set out by metes and bounds."

A manifest incompatibility must exist whenever the will contains provisions so inconsistent with the right of dower that if the widow had the benefit of both, it would defeat the intention of the testator.-Matter of Gorden, 172 N. Y. 25, 92 Am. St. Rep. 689, 64 N. E. 753.

35 Savage v. Burnham, 17 N. Y. 561, 577.

86 Adsit v. Adsit, 2 Johns. Ch. 448, 451. In this case there was no express provision excluding the widow from her dower, and Chan

the mere fact, standing alone, that the testator limits a devise to his wife for life, or as long as she remains his widow, and at her death, or on her marriage, the estate to be equally divided between the testator's heirs. In such a case it is held that the widow's election to take under the will does not defeat her right of dower.37

§ 821. The Same Subject: No Absolute Rule.

No general rule can be laid down by which it can be absolutely declared what particular provisions of a will necessarily imply an intention on the part of the testator to exclude his widow from her right of dower, but each case must be determined for itself upon a consideration of the terms used in the will. It has been said that the statutory right of dower is beyond the control of or dis

position by the husband; that it is a legal right, and that a devise in favor of the widow can not be held to be in lieu of dower unless expressly so declared or manifestly repugnant to such claim.88

In an early leading case the devise was as follows: "I give my dear wife and my two children all my estates whatsoever, to be equally divided among them, whether real or personal." The testator afterward specified the property devised. It was held that this disposition was totally inconsistent with the claim of dower, it being said: "The, testator directing all his real and personal

38 Hair v. Goldsmith, 22 S. C. 566, by a divided court.

Under a statute enacting that a conveyance or devise by way of "jointure" may bar the wife's dower, the word "jointure" is construed to mean such an estate as may be conveyed or devised to the wife in lieu of dower; and that to operate as a satisfaction of dower, it must have been so intended by the husband.-Ky. Genl. Stats., ch. 52, art. 4, § 6; Pepper v. Thomas, 85 Ky. 539, 4 S. W. 297.

Homestead. While a husband and father can not deprive his widow and minor children of their homestead right, the provisions of his wil might be so clearly expressed to be in lieu of homestead that his widow would be compelled to choose which she would take, and by electing to take the former, renounce the latter. But "the intent to exclude the widow from her legal right must clearly appear; if it be doubtful, she is not

Dower and homestead are for the same general object, and both are highly favored in the law. The former may be, but the latter can not be, defeated by the husband's sole deed. A widow's right of dower becomes a present vested estate on the decease of the husband and does not depend on the contingency of the dower being assigned or set out. It is consummate by the husband's death. In this respect homestead and dower stand alike.-Grant v. Parham, 15 Vt. 649; Gorham v. Daniels, 23 Vt. 600; Dummerston v. Newfane, 37 Vt. 9.

estate to be divided equally, the same quality is intended to take place in the division of the real as of the personal estate, which can not be if the widow takes out of it her dower and then a third of the remaining twothirds.39 This rule has been approved, although at variance with the principle that a testator is not presumed to have intended to dispose of property which he did not own.41

40

On the other hand, inasmuch as the testator is presumed not to have intended to dispose of a larger interest in the subject of devise than was properly his own, a widow who accepts a provision under her husband's will is not required to relinquish her dower, unless, either from express statement or necessary inference, the provision for her is clearly intended to be in lieu of dower, or the terms in which the lands have been devised are clearly and manifestly repugnant to the assertion of her dower right in them.12 Some decisions, however, have

39 Sir William Grant, M. R., in Chalmers v. Storil, 2 Ves. & B.

222.

40 Dickson v. Robinson, Jacob 503; Roberts v. Smith, 1 Sim. & St. 513; Reynolds v. Torin, 1 Russ. 129; Goodfellow v. Goodfellow, 18 Beav. 356; Thompson v. Burra, L. R. 16 Eq. 592, 602; Colgate's Exr. v. Colgate, 23 N. J. Eq. 372; Bailey v. Boyce, 4 Strob. Eq. (S. C.) 84.

Contra: A direction that the estate be equally divided between the doweress and others is not inconsistent with her right of dower. Konvalinka v. Schlegel, 39 Hun (N. Y.) 451; s. c., 104 N. Y. 125, 58 Am. Rep. 494, 9 N. E. 868.

41 See §§ 815, 816.

42 Kennedy v. Nedrow, 1 Dall. (U. S.) 415, 1 L. Ed. 202; Parker v. Sowerby, 4 De Gex, M. & G. 321; Ambler v. Norton, 4 Hen. & M. (Va.) 23; Lord v. Lord, 23 Conn. 327; Burkhalter v. Burkhalter, 88 Ind. 368; Estate of Gotzian, 34 Minn. 159, 57 Am. Rep. 43, 24 N. W. 920; Fulton v. Fulton, 30 Miss. 586; Norris v. Clark, 10 N. J. Eq. 51; Bull v. Church, 5 Hill (N. Y.) 206; Dodge v. Dodge, 31 Barb. (N. Y.) 413; Palmer v. Voorhis, 35 Barb. (N. Y.) 479; Savage v. Burnham, 17 N. Y. 561, 571; In re Frazer, 92 N. Y. 239; Shaw's Devisees v. Shaw's Admr., 2 Dana (32 Ky.) 342; Meech v.

reversed the presumption and held that a widow can not take both her dower and the benefits conferred by the will unless it was clearly so intended by the testator.1

§ 822. Gifts in Trust, of Life Estates, or of Income.

The right of dower carries with it the right of management and control by the widow during her life of the one-third allotted to her. A mere power of sale to be promptly exercised and for the purpose of distribution only, would not put the widow to her election. But if the testator devises the bulk of his property to trustees who have not only the power of sale, but also the power to reinvest the proceeds and to manage and control the property, merely paying the annual income to the widow, such a trust is incompatible with the widow's right to manage and control her dower allotment.45

Estate of Meech, 37 Vt. 414; Higginbotham v. Cornwell, 8 Gratt. (Va.) 83, 56 Am. Dec. 130; Tracey v. Shumate, 22 W. Va. 474-499.

See §§ 815, 816.

43 Ragsdale v. Parrish, 74 Ind. 191; Wilson v. Moore, 86 Ind. 244; Allen v. Pray, 12 Me. (3 Fairf.) 138; Reed v. Dickerman, 12 Pick. (29 Mass.) 146, 149; Mass. Gen. Stats., ch. 29, § 24; Staigg v. Atkinson, 144 Mass. 564, 12 N. E. 354.

44 Gibson v. Gibson, 1 Drew. 42; Bending v. Bending, 3 Kay & J. 257; Ellis v. Lewis, 3 Hare 310, 213; Colgate's Exr. v. Colgate, 23 N. J. Eq. 372, 379; Konvalinka v. Schlegel, 104 N. Y. 125, 130, 58 Am. Rep. 494, 9 N. E. 868.

Compare: Vernon v. Vernon, 53 N. Y. 352.

45 Asche v. Asche, 113 N. Y. 232, 21 N. E. 70.

When a testator devises all his real property, constituting the bulk of his estate, to trustees until his youngest child, about one year old, shall become of age and directs that one-third of the net income, after paying expenses, including insurance and repairs, be paid to the widow, and the other two-thirds expended for the support and education of his children, and, upon the expiration of the trust, one-third to be conveyed to the widow during her life or widowhood, and the other twothirds to his children, there is a manifest incompatibility between the provisions of the will and a claim of dower. By allowing the