I concur with the chief justice. It is true that the husband cannot defeat the wife’s dower by willing all his estate to others, but he may give her of his property what he pleases as a substitute for dower, which provision the wife may take instead of dower; and where the intention is manifest that the provision was given as a substitute, she cannot take the provision and at the same time dower. She may take one or the other, but not both. I think that in most cases where a husband makes provision for his wife by will, and makes no allusion to dower, he intends such provision to be her full share of his estate including dower. The widow of course is concluded when he says expressly that the provision is in lieu and bar of dower, but he often omits to say that in express terms and the question arises whether such was his intention. And upon that subject the rule is as stated in Gordon v. Stevens (2 Hill Ch., 48), “That as the right of dower is a clear legal right, an intent to exclude that right must be manifested by express words or by clear and manifest implication,” &c.
Taking this as the rule, it seems to me that such implication is manifest in this case. There could be no question about it if the •whole real estate had been given to the widow for life. Shaffer v. Shaffer, 16 S. C., 625. If one moiety of it had been given, that would have shown such intent by implication, Bailey v. Boyce, 4 Strob. Eq., 84. Then why should not the same result follow when four-tenths of it was given to her ? In the case last cited the testator gave to his wife, Eliza Henry, one-half of his estate, real and personal, and the other half to his daughter, Eliza Bailey, and the court held that the wife could not have dower because it would be “inconsistent with the provisions of *574the will and conflicting with the evident intent of the testator to make an equal partition of his property.” Upon what principle did that case proceed? Why, manifestly upon none other than this — that a certain proportion of his whole estate was given by the testator to his wife, and to take out .dower first, before ascertaining that proportion, would be inconsistent with the provisions of the will. As I understand it, this principle is entirely independent of what .the proportion may be, one-half, one-third, or four-tenths. In either case, taking out the dower first would equally defeat the intention of the testator.
It does not seem to me that this view is answered by saying that the husband could not give more than he had, and that the wife’s right of dower did not belong to him, and therefore he must be considered to have intended that the proportions named should be out of what remained after dower was assigned. That would certainly be a strained construction. The question is not one of power, but of intention, and, considering that the right to dower is in abeyance during the life of the husband, can it be doubted for an instant that the testator, when he spoke of his lands, meant the property itself of which he had the title and which, as understood in common parlance, ivas his, and was his to all intents and purposes, subject only to his wife’s inchoate right of dower ? He not only gave his lands to be divided in the proportions indicated, but he appointed three persons to make the division, and we cannot assume that he intended these gentlemen to divide, not his lands as stated, but two thirds interest in them after allowing the wife’s dower. I can have no doubt whatever that he meant all his lands, and that being his intention'it follows that to take dower out before making the division would defeat that intention and would, as said by the court in Bailey v. Boyce, supra, “be directly inconsistent with the provisions of the will.”
The view is, that the testator intended to dispose, by will, of his whole property, without regard to the wife’s inchoate right to dower, and giving to the wife a certain proportion of that property, implies an intention to exclude dower in it as unmistakably as if the whole of it had been given to her. I am aware that there was a long contest in the English courts, whether a wife ivas entitled to dower in lands upon Avhich her husband *575had charged an annuity in her favor. It seems to have been finally settled that such charge did not necessarily exclude the widow’s right to dower. But the question being merely as to the intention of the testator, that case is not identical with this, where the testator devises to the wife an arithmetical proportion of the land itself. I think the provisions of this will make a case of election; and that the widow cannot take under the will and against it at the same time. She may take the provision in the will or dower, but not both.
In this view, the paper signed by the widow, after her husband’s death, may be regarded as the expression of her election to take under the will.