Paul S. Brown died on the 30th day of August, 1901, intestate as to the property involved in this action. On the 10th day of July
“ This agreement made and entered' into by and between Paul S. Brown of the town of Bloomfield, State of Hew Jersey, party of the first part, and Augusta Andree, of the City of Hew York, * "x" *" party of the second part, Witnesseth: That foirand in consideration of this agreement and certain sums of money to be paid to her by the said party of the first part , and other valuable considerations, the said party of the second part promises to marry the said party of the first part some day before July 15, 1901, and by mutual agreement 'become legal husband and wife. Certified by their signatures and seals and by two disinterested witnesses to same.
“ The said party of the second part; * in case of the death of said Paul S. Brown within- three years the said Augusta Andree shall be paid by the executors of the last will and testament of said. Paul S. Brown, three thousand Swedish crowns, but if he lives five years from the date of this agreement, she, the said'Augusta Andree, * * * shall- be paid five thousand Swedish crowns, or its equivalent in American money, and after his death she is to be paid forty dollars^ per month for her support until the division of tire estate, when she is to be paid in full as her ¡widow’s dower in full.”
What is the reasonable construction of this language used by Paul S. Brown in defining the rights of this woman, who at the age of thirty-seven years was about to enter into the marriage relation with him ? Clearly Mr. Brown used language with a fair degree of intelligence in defining his purpose. He evidently understood that at his age he had not many years to live, while his wife could reasonably expect to survive him for a number of years. Augusta A. Brown was comparatively young; she was a trained nurse and she was relinquishing her occupation for the purpose of caring for this old man, and she evidently demanded something more than
The statute provides- (Real Prop. Law [Laws of 1896, chap. 547J, § 178) that “ any pecuniary provision, made for the benefit of an intended wife and in lieu of dower, if assented to by her * * *, bars her right or claim of dower in all the lands of her husband,” but it must be made in lieu of dower; the parties have a right to provide for more than the dower, 'and this, it seems to ns, has been done in the contract under consideration. At least there is no language which compels the conclusion that it was the intention of the parties that the said defendant should be entitled to less than she would have been entitled to without ’ the contract. Dower is favored by the law, and while the right to both dower and the benefit of a testamentary provision must yield to the intent of the parties where such intent is stated or clearly implied, if there is reasonable doubt, the widow takes both (Matter of Gorden, 172 N. Y. 25, 28), and it cannot be said, in
The learned court below.finds it necessary to read into the language used by Mr. Brown a word of extensive meaning in order to reach "the result which we are called upon to review, and. we do not think the case is one where we are justified in supplying language. The words are not merely those of Mr."Brown, acting as a testator ; they are the words of a mutual contract — words selected by Mr. Brown—ánd "if he failed to use language Which will deprive the defendant of her dower rights, his heirs cannot be aided by the court. Under the statute the defendant is entitled to “ be endowed of the third part of all the lands whereof her husband was seized of an "estate of inheritance, at any time during the' marriage.” (Real.Prop. Law, § 170.) This is the lawful right1 of this defendant unless the right has been taken from her by this contract, and we have no authority to add anything to the language which the contracting parties have used to" bring about such á result. She had a- right to refuse to. marry Mr. Brown and to accept merely the rights of his widow ; she had a right to stipulate for something more, and a fair construction of the language chosen by Mr. Brown to express the agreement with this defendant does not justify holding that it was intended that the rights of the defendant should be cut down, but rather enlarged. We find nothing to warrant holding that the specific payments provided for out of the estate of Mr. Brown were intended to be in' lieu of dower.
McLaughlin, J., concurred; Patterson, P. J., and Houghton, J., dissented.
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So in record.— [Rep.