tion is that any provision in the will is matter of bounty, and was not intended to be in lieu of dower, unless so expressed, or there is some clear implication to that effect.52 And although there be a devise to the widow of greater value than her dower, it carries no presumption that it is intended in lieu of dower.53 23. It has been held in this state that a legacy,54 or a charge for support,55 or any provision for the wife in the will, that is not absolutely inconsistent with the claim of dower, will not make a case calling upon the widow for an election.56 In this last case it was held, that a devise of the whole estate to the widow for life, with remainder to others, was not a provision in lieu of dower, but that the widow might take one third of the estate, as dowress, and the remainder as devisee. And the claim of dower is not barred in such case by the foreclosure of a mortgage executed by the husband alone, during coverture, and a sale under the decree, notwithstanding the widow was made a party to the bill, and it was alleged she claimed some interest in the premises. 24. But if the widow accept of anything whatever in lieu of dower, she is thereby barred, and this may be pleaded, either at law or in equity.57 But to have this effect it must appear to have been the manifest intention of the testator that it should be received in lieu of dower.58 25. The widow's relinquishment of dower is viewed as a valuable acquisition to the estate, and therefore the equivalent Lasher v. Lasher, 13 Barb. 106; Leonard v. Steele, 4 id. 20. 53 Havens v. Havens, 1 Sanf. Ch. 324; Mills v. Mills, 28 Barb. 454. Adsit v. Adsit, 2 Johns. Ch. 448. Smith v. Kinskern, 4 Johns. Ch. 9. Lewis v. Smith, 5 Seld. 502; S. P. 4 Kent, Comm. 58; Adsit v. Adsit, 2 Johns. Ch. 448; Wood v. Wood, 5 Paige, 596; Fuller v. Yates, 8 Paige, 325; Sanford v. Jackson, 10 id. 266; Bull v. Church, 5 Hill, 206; Mills v. Mills, 28 Barb. 454. "Larrabee v. Van Alstyne, 1 Johns. 307; Jones v. Powell, 6 Johns. Ch. 194. Jackson v. Churchill, 7 Cowen, 287. must be paid in full, even where other legacies have to abate.59 And in such a case the widow is entitled to interest upon a legacy given in lieu of dower, from the death of the testator, it being regarded as an alimentary stipend. But a bequest will not operate to bar dower until accepted. vision in lieu of dower has not been fully paid will not defeat its effect, as a bar of dower, if it has been accepted as such. Part payment of a legacy in lieu of dower and the recovery of a judgment for the balance, will be an effectual bar. The widow is barred from the time of her election, as well at law as in equity.64 65 26. This question is carefully examined by Denio, Ch. J., in a late case in the New York Court of Appeals, and the following rules laid down. In order to raise a case for election under a will, a clear and decisive intention of the testator must be manifested by the will itself, to dispose of that which did not belong to him, and which might be claimed by a legatee. If his expressions will admit of being restricted to some interest in property belonging to or disposable by the testator, they will not be held to apply to that over which he had no disposing power. Hence, where the husband makes a general devise of dowable estate, it is not considered that he intended the devisor to have it exempt from the claim of dower, but the contrary, since the title to dower is a right paramount to that of the testator, and in such general devise an exception of such right is implied.66 50 Isenhart v. Brown, 1 Edw. 411. The same rule obtains in Massachusetts. Pollard v. Pollard, 1 Allen, 490; Hubbard v. Hubbard, 6 Met. 50. Pollard v. Pollard, 1 Allen, 490; Williamson v. Williamson, 6 Paige, 298, 305; ante, § 59, n. 13. Larrabee v. Van Alstyne, 1 Johns. 307. 62 Kennedy v. Mills, 13 Wend. 553. 63 Van Orden v. Van Orden, 10 Johns. 30. “ Van Orden v. Van Orden, 10 Johns. 30; Kennedy v. Mills, 13 Wend. 553. Havens v. Sackett, 15 N. Y. R. 365. "Adsit v. Adsit, 2 Johns. Ch. 448; Church v. Bull, 2 Denio, 430. And 27. The general principle of requiring a devisee or legatee to renounce every claim under the will, where he elects to hold against its provisions, must receive this qualification, as has often been held, both in this country and in England, that such renunciation does not extend beyond the particular portion of the will, with which the claim against the will is connected. If, therefore, the same person has a provision under the will, which is wholly independent of and disconnected with that which he elects to renounce, he may receive the benefit of it at the same time that he renounces one which is inconsistent with his legal rights, which he is not prepared to relinquish. As where a devise is made upon the condition of paying $300 to other persons, and the same devisee is made residuary legatee, he may renounce such conditional devise without refusing the benefit of the residuary bequest.67 28. The doctrine of election under wills is discussed considerably by Morton, J., in the case of Reed v. Dickerman,68 and where the widow's taking both the provisions of the will and her dower will materially derange the provisions made for others, it does appear by the will that such was not the intention of the testator, and she must make her election. Dodge v. Dodge, 31 Barb. 413. And where the wife's separate property, with other, is bequeathed by her husband to her with remainder over, she must elect. Reaves v. Garrett, 34 Ala. 558. She is not obliged to elect until the value of the estate bequeathed to her is known; and almost any act of hers before that is known will not be construed to operate as a binding election upon her. Id. See also Pemberton v. Pemberton, 29 Mo. R. 408; Wood v. Wood, 1 Met. (Ky.) 512. Ward v. Ward, 15 Pick. 511; Wilde, J., in Hapgood v. Houghton, 22 Pick. 480, 483, where the rule is thus expressed: "Where a man by his will gives a child or other person a legacy or portion in lieu and satisfaction of a particular thing, this shall not exclude him from another benefit, though it may happen to be contrary to the will; for the court will not construe it in lieu of everything else, when he has named a particular thing." See also Hyde v. Baldwin, 17 Pick. 308; East v. Cook, 2 Vesey, 30. 68 12 Pick. 146, 149. The same rule as to the time within which the widow must make her election, was further illustrated in the case of Delacy v. Vinal, 1 Met. 57. the rule in regard to gifts in lieu of dower declared to be, that to put the dowress to her election, it must either appear that the provision in the will for her benefit is made upon the express condition that it shall be in lieu of or in satisfaction of dower, or else it must clearly appear, from the will, that it was the intention of the testator that the widow should not have both the donation and the dower. The presumption of the English law is that it was intended as a gratuity, and not in satisfaction of the right of dower. But this presumption is reversed by the Massachusetts statute, and such provision in the will for the widow will be deemed to be in lieu of dower, unless it plainly appear that the testator intended it to be in addition to it. And the widow is presumed to accept of such provision under the will, unless she does some positive act, within a reasonable time, to show her election to have dower. And what is a reasonable time depends upon the facts of the particular case. But where the widow had acquiesced in the provisions of the will, occupying the real and disposing of the personal estate bestowed upon her by that instrument, it was held she was bound by such acquiescence, as an irrevocable election to accept the provisions of the will.68 29. And where a provision is made in the will of the husband, for his wife, in express terms, in satisfaction of all claim of dower on her part, upon the condition that she should educate and bring up the testator's granddaughter, the widow only surviving the testator seven days, was held presumptively to have accepted the provisions of the will, upon the ground that it was more beneficial to her; and the condition for the support and education of the granddaughter, being subsequent, will not divest her estate under the will, its performance being defeated by the act of God.69 "Merrill v. Emery, 10 Pick. 507, 510. This case has been sometimes quoted as carrying the doctrine of presumptions to the extreme verge, but it seems to us entirely sustainable, upon the ground that no other rule could have been ap 30. The widow is not excluded from claiming her share in the undisposed of personalty, under the statute of distributions, by reason of any provision in the will for her benefit, unless it be clearly expressed to be in satisfaction of all her claim upon the estate, or such appear, from the will itself, with such aids to its construction as are allowable, to have been the intention of the testator. And the fact that she is excluded by the will from all claim of dower, will not affect her claim to the personal estate.70 31. Upon a bequest of "one half my property," the estate consisting of mere personalty, the legatee takes one half the net amount, after payment of debts and expense of administration.71 32. The widow must make an election, whenever her taking dower would clearly interfere with provisions in her favor contained in the will. And her repeated declarations that she accepts and holds property bequeathed to her by her husband's will in full satisfaction of her interest in the estate, made with full knowledge of all the facts, and her refusal to receive more, amount to sufficient election.72 But if she take a legacy provided by the will to enable her to carry out the provisions of plied, with reasonable propriety, to the particular facts of the case, and the case must have been decided upon those facts alone, since there were no other. But we are not to infer from this decision that in every case the presumption of an election to hold under the will could be justified in the short period of seven days, where the provision was beneficial to the dowress, and she did not dissent from it. This case stands upon its peculiar facts, and is not much authority for any other not precisely similar. The American cases upon this subject are very numerous, and could not be here discussed. See Smith v. Guild, 34 Me. R. 443; Weeks v. Patten, 18 id. 42; Buist v. Dawes, 3 Rich. Eq. 281; Waters v. Howard, 1 Md. Ch. Dec. 112; Lewis v. Lewis, 33 Penn. St. 66; Fulton v. Moore, 25 Penn. St. 468; Hamblett v. Hamblett, 6 N. H. R. 333; George v. Bussing, 15 B. Mon. 558. "Ex parte Kempton, 23 Pick. 163. "Briggs v. Hosford, 22 Pick. 288; Nickerson v. Bowly, 8 Met. 424. 72 Dixon v. McCue, 14 Gratt. 540; Craig v. Walthall, id. 518. |