Horatio E. Alden, whose will is presented to be construed ly the court, after directing that certain necessary bills be paid, and giving his wife certain property outright, also gives to her an annuit3’ of one thousand dollars for her life time, the annuity to be paid from the earnings of his individual and partnership properties; and he declares that these gifts to his wife are to be in lieu of all allowances, dower, and distributive share to which she might be entitled out of his estate.
He then grants other annuities, their payment made subject to a prior pa3'inent of his wife’s annuity, and makes sundry bequests to take effect on the death of his wife. It appears, that he died seized of dowable real estate; that no child was left by him ; that the widow is now thiity-nine years old; and that the *305entire estate reduced to money, now in the hands of the trustee, the administration accounts having been finally settled, amounts to $11,707.61.
It is evident enough, that the annuity to the widow, to say nothing of the other annuities, cannot be obtained from the income and earnings of the estate. And the question of the case is, whether she is entitled to receive the amount each year, although it will be necessary to entrench upon the corpus of the estate to supply the deficiency. She correctly claims that the full annuity should be paid to her, as long as the estate lasts, upon the rule, which appears to be well established in the law, that, where a testamentary gift is made by husband to wife, in satisfaction of her waiver of dower in his estate, the gift has a preference over all other unpreferred legacies, and for the reason that the estate receives a valuable consideration for such gift. The principle is based upon the idea of contract between husband and wife. He dictates the terms and she accepts them. The estate gets her right of dower, and she receives the gift in the will in lieu of dower.
This is an old doctrine originating with Lord Cowper, in Burridge v. Brady, 1 P. Wms. 127, adopted by Lord Hardwicke, in Blower v. Morret, 2 Ves. Sr. 422, which has so extensively prevailed as never to have been dissented from, that we discover, either in the English or American cases. Its application was resisted by counsel in an early case (Davenhill v. Fletcher, Ambler, 244), where the gift to the wife greatly exceeded in amount the value of the dower, the argument being-placed on the great inadequacy of consideration, but the point was overruled, the answer to it being that the testator is the only and best judge of the price at which he is desirous to become the purchaser of the wife’s right. Hop. Leg. *432. The rule does not, however, apply, if the wife has no right of dower. Her right must be subsisting at the death of the testator. Otherwise, she is not a purchaser. In such case she pays no consideration. Same citation.
*306And the general rule does not prevail, if the will clearly disclose that the testator intended that the gift to his wife should not have a preference over other bequests. The burden will be on the executor to show from the terms of the will that a preference is forbidden. The presumption favors the widow’s claim. The intention of the testator, as found in the will, is a part of the contract made with the widow, and if she accepts the provisions of the will, she does so voluntarily, and abides the consequences.
The internal evidence of the will, in the present instance, does not repel but favors the widow’s contention. It discloses that the testator, having no child, had great affection for his wife, providing in different ways in his bequests for her protection. The evidence is conclusive that he believed his estate would easily bear all the burdens placed by him upon it. He must have assumed that the annuity to his wife would be needed by her, to sustain the equipments of house-keeping given her, including the support of horses and carriages provided for her use. He makes the payment of his wife’s annuity a prior claim to all other bequests. The very relation of husband and wife creates a strong presumption in her behalf, when we consider that, after the bounties to her are paid, distant relatives if .not strangers are provided for. We think that the will, as a whole, though not by express terms, by implication indicates. preference in the devises and bequests to the wife, and struggles to utter it.
There is a clause in the will, which if standing- alone, might seem to look in a contrary direction, and that is the declaration of the testator that the annuity is to be paid from the earnings of his individual and partnership property. We think the idea of the testator in this clause, was that he was enlarging"rather than limiting the funds out of which the annuity might be paid. He devotes.for the purpose the earnings of all his properties. He expresses no limitation or condition. The gift is unconditional and absolute, although, as is often the case, he overestimates the sources of supply which were to assure its pajunent. The sources indicated turning out to be insufficient, others must be taken to supply the deficiency. It is a demonstrative legacy, not lost *307because of the non-existence of the property specially pointed out as a means of satisfying it. A case very like this, strongly sustains this conclusion. Smith v. Fellows, 131 Mass. 20. The following additional references may be profitably consulted upon the general questions of the case. Heath v. Dendy, 1 Russ. 543 ; Wells v. Borwick, L. R. 17 Ch. Div. 798 ; Potter v. Brown,, 11 R. I. 232; McLean v. Robertson, 126 Mass. 537 ; Pom. Eq. Jur. § 1142, note and cases; Schoul. Ex. & Adms. § 490, and cases in note.
Parties to the bill ask for allowances for the expense of professional services and disbursements. Such expenses may be-thrown upon the estate, unless the petitioner discloses, a, frivolous or unnecessary case. Howland v. Green, 108 Mass. 283; Straw v. Societies, 67 Maine, 493. But such charges, should usually be moderate, for several reasons. Because there should not be strong temptation to multiply applications to the court for the exposition of wills; because representatives of' estates have not the same stimulus for their protection as living-owners have; and because, as a rule, such cases involve a peculiar kind of litigation which casts less responsibility than, usual upon counsel, and more upon the court.
The amount of expenses to be allowed in this case, to bo settled, by the judge who passes upon the form of a decree.
Bill sustained.
Walton, Virgin, Libbey, Poster and Haskell, JJ,..„ concurred.