It is perhaps not so difficult to guess what the intention of the testator was, as to decide, that this intention is sufficiently expressed in the will, whence only it can be collected.
If this devise was intended in lieu of dower, the widow of Jabez Baldwin has been very little favoured by the will. All that she has got by the will, she would have got without it, except one cow; and, for that, her estate, which would have been during her life, is restrained to her widowhood, and determined by her marriage.
If a devise be given in lieu of dower, the widow may elect either, but cannot have both; and if she accept one, she is barred of the other.
But, unless it appear from the will, that the devise was in lieu of dower, the devise shall be considered as a benevolence; and the widow shall have both it and her dower.
But it is not necessary, that it should appear from express words of the will, that the devise is in lieu of dower; it is enough, that this intention be implied, and seem necessary to give effect to the will.
If the legacy and devise be instead of dower, the widow is barred by her acceptance; but if together with dower, she is not barred.
There is no express declaration in this will, that the devise and legacy should be in lieu of dower; and, unless this intention be implied, the plaintiffs must recover.
The only ground for such an implication in the will seems to be this, that, except the legacy and devise, all the rest of his estate is given to his children, and so nothing is left for dower,
The jury found a verdict for the defendant.
4 St. L. 155. The act of assembly, of 4th April, 1797, has settled it, in future, that a devise shall be in lieu of dower, unless otherwise declared.