This is an appeal from the decision of the circuit court of Lancaster wherein a verdict passed for the plaintiffs and the court overruled a motion for a new trial. The question arises on the will of Isaac Evans, whether the widow, accepting the devises therein expressed to her, is thereby barred from recovering dower in the lands devised to her son Isaac.
The will is dated 29th of November 1781, and is in these words. [His Honor here referred to the material clauses of the will.]
A variety of cases, upon this subject, occur in the English books. At law it is fully agreed that when the husband devises generally to the wife, the same cannot be averred to be in sa*572tisfaction of dower, unless it be so expressed, (a) Courts of equity have relaxed this rule; and in some instances where there appeared an evident intention to bar the wife of dower, w}lere h would disappoint the will in case she took dower, and where the devises to the widow and her claim of dower would be inconsistent with each other, have put her to her election. I have heretofore in this court attempted to review the English cases on this subject, in the order of time in which the decisions took, place; and to shew that the principles of those decisions could not be reconciled. The late case of French v. Davies in 1795, 2 Ves.jr. 572. proceeds on the ground that a widow shall not be put to her election to take under the will of her husband, or her dower, except by express declaration or necessary inference from the inconsistency of her claim with the dispositions of the will. The same principle of decision was laid down by the master of the rolls in Strahan v. Sutton in 1796. 3 Ves.jr. 249.
Several cases of dower have occurred in this court and at nisi prius. In Kennedy v. Nedrow et al. (b) it was determined in bank, that dower cannot be barred by a collateral recompense, though under the terms of the will the widow took an annuity out of lands to which her claim of dower extended, and though she had brought partition for dividing lands under a devise in the will, in which it was acknowledged that the moiety of the premises out of which dower was claimed belonged to the tenants. In Hamilton v. Bucktvaher^ wherein judgment was entered for the tenant in December term 1798, dower was claimed in 294 acres of land in Lampeter township, Lancaster county. The tenant pleaded that John Patton, the former husband of the demandant, devised to her all his lands in Lam-peter township during her natural life of widowhood; but in case she married, then she was to leave the plantation, on receiving SOl. a horse and saddle, with her bed and bedclothes; and this was averred to be in lieu and satisfaction of dower. The majority of the court were of opinion, that they might in the construction of a will necessarily imply an intention not particularly specified in words, though not on arbitrary conjecture, even if founded on the highest degree of probability, (c) The widow could not possibly hold the lands under the will, *573and be endowed thereof at the same time. The devise to her of those lands during widowhood was a freehold interest deter-" minable on her own act only; (a) and such a devise might be pleaded in bar of dower, where the widow entered under the will, and afterwards intermarried. (b) She could not insist on continuing in possession after receiving SOI. and the specific legacies devised to her on leaving the premises. Her claim of dower therefore was utterly inconsistent with the express words of the will, and incompatible with the plain intention thereof. I have gone into the grounds of this decision more fully, as the defendant’s counsel have endeavoured to assimilate the two cases.
The case of Joseph Creacraft et uxor v. Wions, on the will of Jabez Baldwin (c) came before two of us in the county of Washington; and M'Cullaugh et uxor v. Grubb likewise in Lancaster county. The latter case resembles that before us in one particular, that the testator there had devised the residue of the personal estate and all his real estate to his widow, un’til his several sons arrived to their respective ages of 21 years. The different members of this court held that the widow was entitled to dower.
But it has been objected, that a clause in this will forms a material distinction between the two cases. The words are I give to my wife Ann during her widowhood the front “ room of the house wherein I now live, the small cellar under “ the kitchen, and the common use of the kitchen, oven, and “ drawwell, and the privilege of passing and repassing to and “ from every of the same.” To this it is a sufficient answer to say, that the house, kitchen, and premises, out of which these privileges are granted, do not stand on the lands devised to Isaac Evans the defendant in this suit; and it is immaterial at present to determine what operation this would have, as to the lands devised to William. But waiving this answer, there does not appear any incompatibility between this devise and the widow’s claim of dower. She was to educate and school the children until the sons attained their full age; and the profits of the lands during their minority were given to her for that purpose. It would be harsh indeed to ascribe to the testator the intention, that his widow after that time should remain de*574pendent on the bounty of her children, in a state of helpless penury. But suppose this to be the case, we may say with the master of the rolls in French v. Davies, “We are not now say - “ ing what the testator would have done, if he had recollected “ his wife’s dower. Privately we may almost be satisfied, if he “ had recollected it, he would have made a condition upon her. “ He has not done so expressly. Has he done it, so that we “ can, as judges, say it is impossible he could mean her to have “ both? We cannot upon this will say she has disappointed “ him.” Or, according to his language in Strahan v. Sutton, “ we must? suppose every testator meant to give all he had a “ right to give. The case is clearly decided, that a gift of an “ estate out of which the widow is dowable, does not prevent “ her from taking any other estate the testator has thought “ fit to give her.”
In fact this very question came before the late chief justice M-Kean and myself, in an ejectment commenced by the lessee of William Evans against the now plaintiff Webb, on a case stated at nisi prius at Lancaster in May 1794. We took time to advise thereon after the argument, and in January term 1795, delivered our opinion with our reasons, that the claim of Webb in right of his wife to her dower, was not inconsistent with or in contradiction of the will. I see no t-eason for altering the opinion which I then formed on due deliberation.
But my mind is not yet satisfied as to the manner of entering judgment on the verdict. The late mournful event has put it out of my power to examine the law, and consult the entries in such cases, as fully as I intended; and therefore the cause must be continued under advisement.*
Bsackenridge J. concurred.Cur. adv. vult.
At a subsequent day the demandants by their attorney released the damages found by the jury; and on motion, the court gave
Judgment for the demandants.
Co. Litt. 36. b. 4. Co. 4. a. Sro. Ab. devise.pi. 69.
1 Dali. 415.
3 T.R, 473.
<4 Co. 3. a. Co. Liu, 36. b.
Moor. 31. case 102.
Addison 350.
His Honour, at the close of his opinion, informed the bar, that the late Mr. Justice Smith had seen and concurred in it.