The opinion of the court was delivered by
Mr. Chiee Justice Simpson.Peter Plair, late of Green-ville County, died on September 26, 1882, leaving of force a last will and testament. At the time of his death he was seized and possessed of certain real estate situate in Newberry County. Of this real estate, he devised four-tenths to his wife, the plaintiff, for life, with remainder in fee to his daughter, Hattie S. Manly, three-tenths to the children of his son, John Hair, and three-tenths to the children of his daughter, Mrs. Goldsmith. His son-in law, William Goldsmith, administered with the will annexed.
On October 26, 1882, just a month after the death of testator, the plaintiff executed a receipt, of which the following is a copy: “I hereby acknowledge that I have received from William Goldsmith, administrator with the will annexed of the estate of Peter Hair, deceased, the four-tenths of the real estate of said deceased devised to me under the will of the said deceased, and of which he died seized and possessed.' Witness my hand and seal this 26th of October, A. D. 1882. (Signed) R. C. Hair. (Seal.) In presence of (signed) A. J. Kilgore, M. O. Kilgore.” On the same day, at the solicitation and request of her friend, A. J. Kilgore (-who, it seems, told her that it would be carrying out his uncle’s will), she signed a paper, of which the following is a copy, which was presented to her by the said Kilgore: “I hereby acknowledge that I have received from William Goldsmith, administrator with the will annexed of the estate of Peter Hair, deceased, the four-tenths of the real estate of said deceased for and during my natural life; and I hereby accept the same in lieu of all claim of dower in the real estate of said deceased and of which he died seized and possessed. Witness my hand and seal this 26th of October, 1882. (Signed) R. C. Hair. (Seal.) In the presence of (signed) A. J. Kilgore, M. C. Kilgore.”
*568Some time the next year, i. e., 1888 (the precise time is not stated in the “Case,” nor are there any dates to the initiation papers), she filed a petition in the Court of Probate for Newberry County, demanding dower in the said real estate. The defendants, some of whom were minors, answered (the minors by guardian ad litem), denying her right to dower both under the terms of the will and because of the receipts above mentioned which they setup in bar. The probate judge, after taking testimony and hearing argument, held that while the terms of the will did not exclude her from the claim of dower, yet having expressly accepted the devise thereunder in bar of dower in the lands devised to the other devisees, she ivas precluded from now claiming it. He therefore dismissed the petition, with costs and disbursements against the plaintiff.
From this decree of the probate judge an appeal ivas taken to the Court of Common Pleas, which came up before his honor, Judge Pressley, who, holding that the second instrument above was based upon a valuable consideration and in the nature of a family settlement, decided that the plea of mistake could not avail, and he adjudged that the appeal should be dismissed with costs to the defendants, with directions that his judgment be certified to the court below.
The case is now before us upon appeal by both plaintiff and defendants. The defendants contend that the judgment below may be sustained on the ground that the devise to the plaintiff in the will was intended to be in lieu and bar of dower; and that the plaintiff having elected to -take the devise, and having received it, she was now barred, and that the Circuit judge should have so held. The plaintiff, contesting this proposition of the defendants, has excepted to the ruling of his honor, Judge Presslejg in that he erred in holding that the second receipt above was a bar to the claim of dower — the plaintiff alleging that said receipt was without consideration; that the release therein was to no one; that it was executed before the dower had been laid off; that the plaintiff' did not understand her rights at the time, but one month having elapsed since the death of her husband and before she had an opportunity to consult her attorneys, and be*569cause her friend, A. J. Kilgore, had advised that she could not claim the devise and the dower both.
It has been often said that the right to dower is a highly-favored claim, and under the influence of this principle the courts have been slow to defeat such a claim. It is not meant, however, by this that the allowance of dower is dependent upon the favor or kind disposition of the courts merely. On the contrary, this right is as much governed by established rules and principles as any other. The difficulty arises when these rules and principles come to be practically applied to the facts of a special case. For instance, it has been well established that when a widow of a deceased testator has been bequeathed or devised a legacy or devise in the will, this does not affect her right to dowrnr in the lands of her deceased husband unless such claim is in opposition to the declared intentions of the testator, or is in such manifest repugnancy to the will that the two cannot stand together.
These are plain enough as general rules, but when the question is presented whether the provisions of a certain will are manifestly repugnant to the claim of dower, neither the text-books nor the decided cases afford any positive and definite test. And after full examination of these authorities, it will be seen that the question at last must depend upon the intention of the testator, to be ascertained by the ordinary rules of construction and interpretation, and especially whether the devise and dower are repugnant, each case turning upon its own facts and circumstances.
■ Now, what is precisely the character of the case at bar? The testator died seized and possessed of considerable real estate. He left surviving him his widow, two children, and several grandchildren, the children of a deceased daughter. In his will he devised four-tenths of this real estate to his widow for life, with remainder to his and her daughter, FI. S. Manly, in fee, three-tenths to the children of his son, John Hair, and the remaining three-tenths to his grandchildren, the children of Mrs. Goldsmith, deceased. There is no express declaration in the will that the devise to his wife was in lieu and bar of dower; the question then is presented, did the testator intend this devise as such bar? This must be determined by the fact whether the two are so *570manifestly repugnant that they cannot stand together. This being determined, the intention of the testator is reached and must govern.
It must be remembered in considering this question, first, that dower is a right to which a widow becomes entitled on the death of her husband, not by any gift, contract, or indulgence of her husband, but by operation of law, which is fixed at his death, and over which he has no control, and cannot defeat. Second. That while this is true, yet the husband may bequeath and devise his entire estate to whomsoever he pleases, and upon such conditions as he may choose. There is nothing, therefore, illegal in his annexing, either expressly or by implication, a condition to a bequest or devise to his widow, that she shall surrender her claim to dower. In such case the widow is put to her election, and if she accepts the devise or bequest, she loses her dower, not by the act of her husband, but by her own voluntary choice and surrender. So that although the right to dower is favored by all the courts, yet it is no violation of this principle to hold that she cannot claim it, and also another right which Avas given her on the condition that she should surrender her doAver.
Now, is the devise to the plaintiff in the Avill in question so manifestly repugnant to her claim of dower as to show that it could not have been the intention of the testator that the two should stand together? At the death of the testator he was seized in fee of the real estate mentioned, subject to a life estate' of his widow in one-third thereof as her dower, which inchoate before his death became consummated and vested by his death. The will directed that this real estate should be divided into three parts : one, four-tenths; the remainder into two, three-tenths each: and the persons to make this division were nominated therein, and it was evidently contemplated by the testator that this division should be made as early as the condition of the estate would allow. The testator left tAvo surviving children and the children of a deceased daughter. The scheme of the will Avas evidently to make an equal division among these, the children of his son, John Hair, representing one share, and the children of Mrs. Goldsmith, deceased, representing their mother in one share; and inasmuch as the share of his daughter, H. S. *571Manly, was to be encumbered with the life estate of her mother, he gave to her four-tenths, which was one-tenth more than he gave to the other two.
Now, would it not be manifestly against this scheme if the widow was allowed to come in and claim a life estate in each of the three-tenths, in addition to a life estate in the four-tenths, which is directly devised to her ? How could a claim of this kind be practically enforced without breaking up the entire scheme? The land was in two tracts, one containing 1(17 acres, and the other 194 acres, in all 361 acres. Divide this into three portions — one, four-tenths; the other two, three-tenths each, and we have one, 144J, and two, 108J. Set apart to the widow for life the 144-|- acre tract under the will, and give her one-third for life in each of the other two as dower, and the scheme of the division directed in the will is destroyed; and especially if the widow’s dower in the two three-tenths should be assigned to her out of one of them — and who could say that it should not ?
The share of H. S. Manly was subjected to a life estate therein of her mother, and therefore the testator gave her four-tenths, which was one-tenth more than the shares of the others; but after making this difference so as, no doubt, to make the shares as nearly equal as possible, he could have hardly intended that the shares of the others should also be subject to a life estate of his widow to the extent of one-third each as dower, because this would have destroyed the equality among his children, and not only so, but would have postponed the division and enjoyment of the devises until the death of his widow, when the dower would fall in — which would manifestly contravene his intent. The testator evidently intended that the whole of his lands of which he was seized should ultimately belong to his children and grandchildren, in equal parts, and he desired an immediate division, but he knew that his wife was entitled to a life estate in one-third as dower, which, if she claimed in the whole, would defeat an immediate division. He therefore gave her a life estate in four-tenths, which was a little more than her dower in the whole, and then to make her daughter, Mrs. Manly, about equal with the others, he gave her this four-tenths at the terrni*572nation of her mother’s life estate. For the widow now to claim the four-tenths for life and dower too in the remainder, we think would be manifestly repugnant to the scheme of the will.
In our case of Bailey v. Boyce (4 Strob. Eq., 84), the general principle which should control in cases of this kind is laid down as herein above; and it is sustained by many cases, both English and our own, cited in the opinion of the court and the Circuit opinion of Chancellor Dargan, as also in his elabórale dissenting opinion. The difference, however, in the court was not so much as to the general principle, but in its application to the facts of that case. It was conceded that in all such cases the intention of the testator was the controlling factor, and that this intention was to be reached by the fact whether or not the devise and the claim of dower were manifestly repugnant.
Now, the widow has accepted the provision made for her in the will. True, this acceptance seems to have been brought about in some haste, one short month only having intervened between it and the death of her husband, but neither the probate judge nor the Circuit judge have found as matter.of fact that she was in any way imposed upon in. executing this receipt and in accepting the devise. The receipt has not been impeached by any direct proceeding. Nor does it appear that any advantage was taken of her through the persuasion or misrepresentation of any of the parties. The only testimony upon that subject is her own, in which she states that she did not understand the true condition of the estate, and that she would not have accepted if time had been given her to consider and to consult with her attorneys. Whose fault was it that deprived her of time and opportunity for consultation ? Her own, as far as we can see. Besides, from the view which we have taken, inasmuch as she could not have claimed both the devise and the dower, even if she had taken time, she no doubt would have still accepted the devise, as by that she gets a life estate in four-tenths, which is greater than would have been her dower. So that she has not shown or claimed that she has been injured by a hasty acceptance.
The acceptance, then, being inconsistent with the claim of dower, and this being sufficient to sustain the judgment below, it is unnecessary to discuss the effect of the second receipt, in Ayhich *573she released all claim to dower, because whether or not that receipt is obnoxious to the objections interposed by the plaintiff can make no difference. As the case is one of election and the plaintiff having elected as evidenced by her taking possession of the property devised to her, and executing the first receipt, she cannot claim both under and against the will.
It is the judgment of this court that the judgment of the Circuit Court be affirmed.