Samuel Woodward died seized in fee of a house and lot, and of a farm containing one hundred and twenty acres, with a stone house, barn, c., erected thereon, having made his last will and testament by which, (after directing the payment of his debts, and giving to his wife certain articles of furniture,) he devised as follows: — "and further my will is, that my executors set apart the sum of three thousand dollars out of my estate, the interest of which they or either of them are to receive and pay over to my said wife annually and every year during the period of time that she remains my widow. Item, I give and bequeath to my two half-sisters, Lydia and Esther Woodward, (children of my step-mother, Hannah Woodward,) to be equally divided between them, my undivided one equal fifth part of one thousand dollars, being the sum allotted by agreement to my said step-mother out of my father's estate, to create her annuity. Item, I give and bequeath to Eliza Toner, (who has been living in my family some time past,) the sum of one hundred dollars. Item, and I do hereby direct that as soon as practicable after my decease, the remainder of my household goods of every description, stock and farming utensils, c., together with all my real estate, be sold by my executors for the highest and best price that can be obtained; and I do authorize and empower them to convey to the purchaser or purchasers of said real estate, a good and sufficient fee simple title or titles, being of equal tenor with those by which I now hold the same; and all the proceeds arising from said sale both personal and real, with other moneys remaining either on hand or owing me at the time of my decease, to be equally divided amongst my four daughters, namely: Margaret Ivinsey, Sarah Bailey, Sussanna Smedley and Rachel Chandler, and in case either of my said daughters depart this life prior to my decease, then and in such case, the share of them so dying shall descend to their children in equal portions." The testator left a personal estate exceeding $3,000, after the payment of all debts and legacies, except the bequest to his wife of the interest of $3,000, during widowhood. The complainants were the residuary *Page 460 legatees and executor of S. "Woodward. The defendant claimed both the legacies bequeathed to her by the will, and also her dower in the testator's real estate.
The question submitted to the chancellor was, whether these bequests were in equity a bar to the dower, so as to put the widow to her election. The chancellor dismissed the bill, with costs, on the ground that the said bequests were not a bar to the dower, and refused to compel the widow to elect between them and the dower. Whereupon an appeal was prayed and granted.
Chandler, for the appellant. — Chancery will compel an election between a devise or bequest and dower wherever — 1st. It appears expressly that the devise was designed to be in lieu of the dower. 3d. Where from the will it is to be ascertained by a fair construction, that is was the intention of the testator that the devise, c., was to be in lieu of dower. This may be made out by implication. And wherever there is a decided inconsistency or repugnancy between the devise and the claim of dower, the dower will be defeated. (1 Fonb.Eq. 316, note of Am. Ed.) This principle is in conformity with a still more general principle of law and equity, that whoever claims a benefit under an instrument shall carry it out in all its parts, and give effect to its general purpose. (2 Mad. Chan. 49.) It is not necessary that the testator should declare the devise to be a substitute for dower; "but it will be enough if such appear from the whole will to have been the intention of the testator. (2 Vern. 581, Noyes vs. M or daunt; 2 Eq. Ca. Ah. 353; 8 Vin. Ab. 366; Amb. 730; Cruise Dig. tit.Dower 210; tit. Devise 21; 1 Brown's Ch. Ca. 292, 445.) The provision of the will directing the executor to sell all the estate, personal and real, must be defeated if this claim of dower is sustained. That claim will require a life estate in one-third of the real estate to be set off to the widow; and will prevent the sale and conveyance of it. For the will requires a good and sufficient fee simple title to be given to all the land: The executors cannot perform this will if the widow stands in the way with her dower, nor can she set up a claim to dower without resisting the will. A conveyance subject to dower would not give a fee simple title according to the will. A covenant to make a good and sufficient deed conveying the legal title, requires a conveyance clear of dower and all other incumbrances. (10 Johns,Rep. 266-9.)
This will goes further: after directing the sale and conveyance of the fee simple title, it directs that the title or titles conveyed shall be of *Page 461 equal "tenor" with those by which the testator held the land. These words were regarded below as restraining the previous directions; hut we think it clear that they were added merely by the unskilfulness of the writer, with a view to express the same purpose of the testator before expressed, by way of alteration or amplification. The sentence itself is awkward and ungramniatical. But according to the rules of criticism, the burden of a sentence is to be looked for in the beginning of it rather than in the end, as all men naturally present the most prominent matter first in the structure of language. Words used by an illiterate testator are to be taken in their popular signification. If these words are construed to restrain and qualify the previous direction to sell and convey in fee simple, they reduce the direction to an impossibility. For it would require the conveyance to be strictly such as it then was, a fee simple subject to an inchoate right of dower, which might or might not become perfect by the death of the husband before the wife. The tenure by which the land was then held, was not that of a perfect dower interest, and so long as the testator "held" the land, there never could be any perfect title to dower. Then how can the will, under this construction, be effectuated by a sale and conveyance of the land, subject to a perfect right of dower? No power can. authorize them to convey subject to just such a right as the widow had when the will was made, for no such right exists in law or fact, or can exist, because the contingency which then hung over the right of dower has been resolved by death, and the tenure of the land, if it is still subject to dower, is changed. The construction of the court must be such as to avoid this impossibility, which the testator could not have contemplated; and fix itself on the plain direction to sell and convey in fee simple.
Again: the direction is to sell the land for the highest and best price that can be obtained for the same. Now how can the highest and best price be obtained for this land by selling in fee simple unincumbered; or by selling it subject to a life estate in one-third? I do not lay much stress on this, but I think it of some consequence, as showing what was the intention of the testator; that a full and most advantageous sale was in his mind. The intention governs in case of wills, to the exclusion of all forms and rules applicable to other papers. This case must stand on its own circumstances; on the construction of the will in reference to what the testator meant.
Wales, for the appellee. — The title to dower is a claim paramount to any title under the will, and is highly favored. In order to exclude *Page 462 dower, the intention of the testator to do so must be plainly expressed in words, or be an implication as plain as if such, words had been used. The rules by which the intention of the testator may be inferred are well fixed by adjudged cases. Where the word "estate" is used, it may be restrained by the context to the personal estate. (7 Eng. Com. LawRep. 8.) In taking up this will we find the general subject about "which the testator was treating was personal property; all bequests; no reference to land. The bequest to the wife is a general pecuniary bequest during widowhood, and not for life; in restraint of marriage; a bounty out of his personal estate; and then a residuary bequest, still applying to personal estate, as implying a residue of that. Then comes the provision for the sale of his land.
The title to dower is so prominent in the view of a testator, as well so much favored in the law, as obviously to require the expression of an intention to defeat it where such is the intention. (3 Johns. Ch.Ca. 448; 4 ib. 9; 7 Cowen Rep. 287.) In all the cases it is contended that a devise of the land in fee simple to third persons, is not inconsistent with the right to dower in the widow; though a pecuniary bequest he also made to the widow. No devise to the wife, however great, will of itself be considered in lieu of dower. (1Dallas' Rep. 4.18; 1 Yeates' Rep. 424; 4 Kent'sCom. 57-8; 1 Eden's Chan. Rep. 57 to 66; 2 ib. 139, note.) An annuity charged on a mixed fund of real and personal estate is not a bar of dower.
To raise a case of election, the intention as manifested by the will must be clear and decisive, certain andmanifest (1 Powell on Devises, 442; 21 Law.Lib. 262.) In what part of this will is there that intention "clear, manifest and incontrovertible," "demonstrating" the intention of the testator to defeat his widow's dower? The bequest must be taken to be a benevolence and bounty. It is a pecuniary bequest not charged upon land: and the land is devised to third persons. The intention must be collected from the will itself, and not from any thing else; and must be collected on principles fixed by adjudged cases. These decide that neither a pecuniary bounty to the wife, nor a full devise of land to third persons, is to be held as defeating the widow of her dower. What is the effect of the order to sell? It must be taken as the intention was, to sell that which the testator could sell; and he could not sell it clear of dower. And he has further expressed his intention that the same title should be conveyed as he held himself, and that was subject to dower. Admitting *Page 463 that the matter is doubtful on the intention, the decision must be in favor of the dower.
Mr. J. A. Bayard replied.
The chancellor assigned the reasons of his decree.
JOHNS, JR., Chancellor. — The case below, and perhaps here, was whether there is such a conflict between the will of S. Woodward and the claim of his widow to dower as shall put her to an election to take the bequest to her in the will or the dower. In my view the bequest of a personal legacy to the wife and a direction to executors to sell the real estate, would not put the widow to her election any more than a direct devise of such land to a third person; after a pecuniary legacy to the wife. The question then is, whether the direction to convey a good and sufficient fee simple title to the purchaser can vary the case so as to put the widow to her election. To say so would be to give to the directions about conveyance a greater effect than the direction to sell; but the executors could convey no greater title than that which they were authorized by the will to sell. It seems to come back to the same question, whether the land is devised to be sold free from dower. On examining the cases I thought that this did not come within any of those where the widow was put to her election. Those cases are such where the assertion of the claim to dower would come into conflict with the possession of the land devised, and thus defeat the will. There is no such difficulty here. The testator directed a sale only of his real estate — a sale ofhis title. This can be carried out by a sale subject to dower, and the conveyance of a fee simple title may be made so far as the testator has ordered a sale to be made. It does not appear that the testator meant that his children should have the proceeds of sale of their mother's share in the real estate. And if the land shall be sold clear of dower, it is obviously the sale of a greater estate than the testator held at the date of the will, which it cannot be denied was subject to the wife's claim of dower. If on this will the widow can be put to her election, it will be difficult to find any case of a devise of land, after a legacy to the wife, that would not fall within the same principle.
The chief justice delivered the unanimous opinion of the court. The question in this case depends on the doctrine of election, the principles of which are well established. The only difficulty is in applying them to the facts of each particular *Page 464 case. No person is allowed to claim under a deed or will, without giving full effect to every thing contained in it, so far as such person is concerned. He cannot take under, and at the same time, in opposition to it. He cannot accept and reject the same instrument; because it is against equity and good conscience, that a person should hold and enjoy a gift or devise by virtue of a will, which he could not do without it; and at the same time defeat its provisions by asserting a paramount claim to that which, by the will, was intended for the benefit of others. He must, therefore, either wholly comply with the will, or wholly repudiate it and adhere to his paramount claim.
In regard to dower, it seems from all the cases to be an established rule, that a court of equity will not compel the widow to make her election, unless it be shown by the express words of the testator, that the devise or bequest was given in lieu or satisfaction of dower; or unless it appears, that such was the testator's intention, by clear and manifest implication arising from the fact that the claim of dower is plainly inconsistent with the devise or bequest, and so repugnant to the will as to defeat its provisions. If both claims can stand consistently together, the widow is entitled to both, although the claim under the will may be much greater in value than her dower.
In the present case, there is no express declaration in the will, excluding the defendant's right of dower, or indicating that the bequest and annuity were intended to be in lieu or satisfaction of it. Nor could the slightest implication of an intention to that effect exist, had the testator omitted that clause in the will, which authorizes the executors to convey to the purchaser of his real estate, a good and sufficient fee simple title. If we view the case without that clause, there is a total absence of every thing like an intention to bar the right of dower. It appears by the case stated, that in addition to his real estate, the testator's personal property at the time of his death, was more than sufficient, after the payment of debts and legacies, to set apart the sum of three thousand dollars for the purpose of raising the annuity to his wife during her widowhood. This provision then for her benefit, is wholly out of his personal estate; is not charged upon, and has no reference to his real estate. The annuity and bequest of household furniture, viewed by themselves, would be considered simply as the bounty or benevolence of the testator to his wife. There would be no inconsistency between them *Page 465 and her claim of dower; and no repugnance in that claim, to the mere sale itself, of the testator's real estate. The assertion of the right of dower could not impair or defeat the testator's direction to his executors,, simply to make such sale; and the fact, that the annuity., because given only during widowhood, is less beneficial than dower, would of itself, be a strong reason against the interference of a court of equity, So far then, the bequest, annuity, claim of dower, and sale of the real estate, would all consistently stand together.
But it is contended for the complainants, that the clause in the will authorizing the executors to convey to the purchaser or purchasers of the testator's real estate, a good and sufficient fee simple title,being of equal tenor with that by which he held the same, is defeated by the claim of dower, and therefore presents a case of election: that the words "good and sufficient fee simple title" mean the legal estate in fee simple, clear of all liens and incumbrances; and that such a title cannot be conveyed, if the land is to be subject to the incumbrance of dower: that by the clause referred to, the testator must have intended the purchaser of his real estate should hold it discharged from the dower; otherwise, the words contained in the clause must be rejected as useless; whereas, effect must be given if possible, to all the words of a will, and none are to be rejected, unless the intention of the testator, apparent from other parts of the will, requires it: that by the expression being of equal tenor, c., the testator must be understood as meaning the same title by which the lands came to, or were received by him; and, therefore, if conveyed by his executors subject to dower — as dower is no part of the title, and can only arise after his death — the title of the purchaser would not be of equal tenor with that by which the testator held his real estate.
After a careful examination of this will, we cannot give to the words on which so much stress is laid, and on which the whole argument for the complainants is founded, the force and meaning contended for. We admit, that upon a contract for the sale of lands, where the vendor agrees with the purchaser, to make a good and sufficient deed in law to vest himwith the title, as was the case in Jones vs.Gardner, (10 Johns. Rep. 266,) relied on, by the complainants' counsel, or to convey a good and sufficient title infee simple; such agreement may very properly, according to the evident intention of the parties, be construed as a covenant to convey the legal estate in fee, free and clear of all valid liens and incumbrances. In Jones vs. Gardner, the court considered that the deed of the plaintiff and wife *Page 466 tendered by him to the defendant, was not a compliance on the part of the plaintiff with his covenant; because the deed did not embrace the whole of the land agreed to be conveyed; and because the wife of the plaintiff had not executed it with the solemnities required by law: that in this respect, the deed was imperfect, and did not fulfil the contract, inasmuch as the title to be vested in the defendant, meant the legal estate in fee, free and clear of all valid claims, liens and incumbrances; and, therefore, that the claim of dower being an incumbrance on the land and not barred by the deed, was inconsistent with the title agreed to be conveyed.
With all respect for this authority, and however conclusive we might deem it, if the present case depended on the construction of a covenant to convey lands for a full and adequate consideration, we cannot attribute the same import and signification to the words used in this will, as was given to them in the case referred to, unless it appears to have been the intention of the testator to use them in the same sense, and attach to them the same meaning. The counsel for the complainants admit, that if the testator had omitted the clause respecting the conveyance, and simply directed his real estate to be sold, the sale would be subject to the claim of dower, and no inconsistency could arise between them. This is apparent. But whether the clause in question were omitted or not, the effect, in our opinion, is the same. If the mere direction to sell, does not put the defendant to her election, it is not perceived how the authority to convey the title is to do so. In either case, no other or greater estate or title can be conveyed, than that which the testator held when he made his will. Suppose then, the clause to be omitted. The express power to sell impliedly confers all incidental powers proper and necessary to carry into effect the power expressly given. Among the implied powers, is the authority to execute a good and sufficient deed to convey what is sold; for without such deed conveying the testator's title, the sale is incomplete. Under the implied authority to make a deed, what title would the executors convey? Precisely — the same which the testator held in the property he had a right to sell; but not a title which was not his, but paramount to any that could be claimed under his will. The deed then, to be executed by the executors to the purchaser, would purport to convey a good and sufficient title in fee simple in the testator's real estate, such as he had and held at the time of making his will; that is, subject to his wife's right of dower. *Page 467
But viewing the case with the clause as it stands in the will, expressly giving the executors the authority to convey, can any other or greater title be conveyed than, without the clause? The language of the testator is this: "And I do authorise and cmpower them" (his executors.) "to convey to the purchaser or purchasers of said realestate a good and sufficient fee simple title or titles, being of equaltenor with those by which I now hold the same." Does the testator by these words show a plain, manifest intention that the good and sufficient fee simple title to be conveyed, shall be free and clear from his wife's claim of dower? Or does he not rather express directly the reverse? By a fee simple title being of equal tenor, c., is to be understood a title of the same purport, or the same in substance, or the same in effect, with that by which the testator held his real estate at the time he made his will. What was his title at that time? No other than a title in fee simple subject to his wife's inchoate right of dower; and consequently it was only such title his executors were authorized to convey. It seems to us, that no other meaning can be attached to the testator's words; and therefore that with or without the clause in question, the real estate, upon a sale by the executors, must be conveyed subject to the defendant's right of dower.
But admitting, according to the construction of the complainants' counsel, that the words "a good and sufficient fee simpletitle," when used either in a deed or will, import a title free and clear of all liens and incumbrances; the result is not varied; because, those words are qualified and restricted by the words immediately following, to wit: "being of equal tenor, c.;" plainly showing that the testator intended such title as he held at the time of making the will. What else could have been his intention? If he meant that his real estate should be conveyed free and clear of dower, he would have used only the former words and omitted the latter. But it is more probable, if the design to bar his wife's dower, was the leading or prevailing idea influencing his mind in the disposition of his real estate, that such design would have been shown by an express declaration, that his real estate should be sold free of dower, or that he intended the annuity to be in lieu, or satisfaction of it. The complainants' case then cannot be sustained, unless the words "beingof equal tenor, c." be rejected as useless or superfluous: which is forbidden by that cardinal rule of construction, that effect must be given, if possible, to all the words of a will. But further. Supposing the construction of the clause in the will, on which the whole of the complainants' case is *Page 468 founded, is doubtful and uncertain; then it follows, that a sufficiently clear case is not presented for the interposition of a court of equity to compel the defendant to make her election: that this is not a case where the intention of the testator, as manifested by the will, isclear and decisive; or where — to use the language of lord Alvanly in French vs. Davies (2 Vcs. jr. 572,) — "it is clear, plain and incontrovertible, that the testator could not possibly give what he has given, consistently with the defendants' claim of dower."
The opinion of this court is, that the present is not a case of election; and, therefore, that the decree of the chancellor be affirmed, and the complainants pay the costs.