dissenting. As I cannot concur in the conclusion reached by the majority of the court, I will proceed to state, as briefly as practicable, the reasons for my dissent. But two questions are raised by this appeal. 1st. Whether the provision made in the will of Peter Hair for his widow, the petitioner, is such as, if accepted, will exclude her claim for dower. 2nd. If not, whether the paper signed by the petitioner, which will be hereinafter set forth, operates as a bar or release of her right of dower.
For a proper understanding of these questions, a brief statement of the facts will be necessary. Peter Hair being seized and possessed of two tracts of land — one containing 167 acres, and the other 194 acres — departed this life on September 26, 1882, having first duly made his last will and testament, by which he disposed of his estate as follows: To his wife, the petitioner, he gives four-tenths of all his real estate for life, and after her death he gives the same in fee to his daughter, Mrs. Hattie S. Manly; to the children of his son, J. S. Hair, he gives three-tenths of his real estate; and the remaining three-tenths to the children of his daughter, Mrs. N. C. Goldsmith, the wife of Wm. Goldsmith, with a provision that the portions which may go to his married granddaughters shall be settled to their sole and separate use. He then makes several specific bequests, viz., to his grandson, Peter Hair, his gold watch and chain; and to his grandson, Peter H. Goldsmith, his shot-gun and two fine pistols. *576To the children, of his daughter, Mrs. Goldsmith, he bequeaths whatever maybe due to him by their father, Wm. Goldsmith; and to his daughter, Mrs. Hattie S. Manly, he gives all the residue of his estate. The will also provides for three persons designated therein to make a division of his real estate, in the proportions previously directed, amongst the several devisees named. And by a codicil to his will, he provides for the payment of $500 to the person Avho shall administer on his estate in lieu of all commissions and expenses, saying that his son-in-law, Wm. Goldsmith, had signified his willingness to become the administrator upon these terms.
It seems that J. S. Hair and Mrs. Goldsmith were the children of a former marriage of the testator, and that Mrs. Manly was the only child of the marriage Avith the petitioner. Wm. Goldsmith, having qualified as administrator Avith the Avill annexed, procured from the petitioner on October 26, 1882, just one month after the death of the testator, her signature to the following paper, Avhich is relied upon as, and which Avas held by the Circuit judge to be, a. release of her right of dower in all the real estate of the testator, of which he died seized, viz.:
“I hereby acknotvledge 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 the deceased, devised to me under the will 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, of which he died seized and possessed. Witness my hand and seal this 26th day of October, A. D. 1882.” (Signed) “R. C. Hair. (Seal.)” “In presence of (signed) A. J. Kilgore, M. O. Kilgore.”
Under this state of facts, the questions above stated will be considered.
First, as to Avhether the terms of the will are such as put the AvidoAY to her election of dower, or of the portion devised to her by the will. It is conceded that the rule is well settled that in order to put the widow to her election, the testator must, either in express terms or by clear and necessary implication, declare his intention that she shall not have both. It is quite certain that there is no such intention declared in express terms by the *577testator in this case, and the only inquiry, therefore, is whether such intention is clearly and necessarily implied from the terms which have been used. When it is considered how easy it would have been for the testator to have expressed his intention in terms, that the provision made for the wife was intended to be in lieu of dower, which, of course, it must be assumed that he knew she had the right to claim, and when it is remembered that dower is an estate which vests in the wife immediately upon the death of the husband, over which the husband can exercise no control, either by will or otherwise, it must be conceded that when a husband makes a devise of his real estate, or any portion thereof, the presumption always is that such deviséis made subject to the widow’s right of dower therein, and hence the burden is upon those who seek to deprive her of such right, to show that the terms of the will are such as necessarily imply that the intention was that she should not take both her dower and the provision made for her in the will. As is said by Dargan, Oh., in his Circuit decree, in Cunningham v. Shannon (4 Rich. Eq., 140), which was adopted, on this point, by the Court of Appeals: “Dower is a right which, inchoate during the coverture, becomes absolutely vested in the wife as an estate on the death of her husband, and is as much beyond his control or power of disposition as her own inheritance. It not being his to give, every devise which he makes of the land upon which the right of dower attaches is presumed to be given subject to the legal estate, unless the contrary appears on the face of the will, in express words, or by the strongest kind of implication.”
It does not appear to me that the respondents have succeeded in showing that the terms of the will under consideration necessarily imply that the testator intended that the provision made for his widow should be in lieu of her claim of dower. So far as I have been able to discover, the authorities do not establish any rule by which it can be absolutely declared what particular provisions of a will necessarily imply an intention to exclude the claim of dower, but that each case must be determined for itself, upon a consideration of the terms used in the will presented for construction. It certainly cannot be said that such an intention is to be implied from the fact that if the claim of dower is allowed, the *578provisions made for other objects of the testator’s bounty will be reduced in amount, for that would be the result in every case, and the necessary consequence would be that dower would be excluded in every case. The case of Bailey v. Boyce (4 Strob. Eq., 84), which, though decided by only two chancellors against one, less than a majority of the full court, ought properly to be considered as authority, may be regarded as establishing the doctrine that where a testator by his will divides his estate equally between his widow and his only daughter, such a provision must be regarded as necessarily implying an intention on his part to exclude the widow’s claim of dower, upon the ground that such a claim, if allowed, would defeat the scheme of his will.
This case is relied upon as conclusive of the question now under consideration, for it is argued that the scheme of Hair’s will was to divide his estate equally amongst the several objects of his bounty, and therefore that the doctrine established in Bailey v. Boyce should control here. But was equality the scheme of the will under consideration ? It appears to me clear that it was not. On the contrary, out of all the various persons mentioned in the will as objects of the testator’s bounty, only two of them (considering the children of J. S. Hair as one and the children of Mrs. Goldsmith as another) are given equal portions. To say nothing of the small specific bequests to the two grandsons who bore the testator’s name, we find that the amount due to the testator by Wm. Goldsmith is given to his children, and the whole residue of the estate is given to Mrs. Manly. What was the amount of the indebtedness of Goldsmith to the testator, or what would be the probable value of the residue, does not appear, and we have no means of determining.
Even as to the real estate, I see no warrant for saying that the testator designed an equal distribution of his estate. The figures certainly do not show it, except as has been stated, as to the provision made for the two sets of grandchildren; and the suggestion that the share of Mrs. Manly was increased by one-tenth, because the enjoyment by her of her share was to be postponed until her mother’s death, must be based entirely upon conjecture, as there is nothing in the terms of the will to warrant such a suggestion. The testator having burdened the whole of the por*579tion intended for his daughter with the life estate of the widow, it does not seem unreasonable that the portions intended for his grandchildren should be likewise burdened with the dower or life estate of the widow to the extent of only one-third; and this may possibly have been the reason why the portion which the daughter was ultimately to have was enlarged one-tenth; but this, too, is mere conjecture.
I have not deemed it necessary to cite the several authorities in support of the views herein advanced, as they may be found in the case of Cunningham v. Shannon, supra, though they are more fully collected and more elaborately considered in the dissenting opinion of Dargan, Ch., in Bailey v. Boyce, supra. It seems to me, therefore, that it does not appear from the terms of Peter Hair’s will that the provision therein made for his widow was intended to be in lieu of her claim of dower. He has not said so, and there is nothing in the will from which such an intention is clearly and necessarily inferrible. The provision is not so large a proportion of his estate as would excite the belief that it must have been intended to be in lieu of dower. Indeed, as we are not informed as to the value of his personal estate, it is impossible for us to say what proportion is given to the widow, and the burden is on those who resist the claim of dower. It only exceeds by a very small fraction, one-fifteenth, the value of the dower in the real estate. The allowance of dower would not destroy the scheme of the will or defeat any of its provisions. The only effect would be to lessen the value of the portions given to the devisees, and that certainly is not sufficient to defeat the claim of dower. Braxton v. Freeman, 6 Rich., 35.
The testator having no right to dispose of that portion of the real estate covered by the claim of dower, could only give three-tenths of his own estate subject to his disposition to his grandchildren, and not three-tenths of that which he had no right to dispose of. When he says, “I give three-tenths of my real estate to the children of Mrs. Goldsmith,” he must, in the absen.ce of anything showing a contrary intention, be regarded as meaning only three-tenths of that of which he had the right to dispose, and not as intending to include also three-tenths of that of which he did not have the right to dispose. Hence the-allowance of-the *580claim of dower is not necessarily inconsistent with the devise of three-tenths of his real estate to the children of Mrs. Goldsmith.
The next inquiry is as to the effect of the paper signed by the petitioner, a copy of which has hereinbefore been set out. The judge of probate having found that there was no sufficient evidence to show that her signature was improperly obtained, and the Circuit judge having concurred in this finding, there is no ground upon which it can be successfully assailed as not binding on the petitioner. It will be necessary, therefore, to consider its legal effect. It will be observed that as the paper was executed after the death of the petitioner’s husband, and after her estate of dower had become vested, it cannot be regarded as a renunciation of an inchoate right of dower; but if it can have the effect attributed to it, it must be as the conveyance of an estate either by way of deed or by estoppel. It certainly cannot be regarded as a legal conveyance, for there is no grantee named, and there are no conveying words used. It does not even amount to such an informal conveyance or agreement to convey as would be given effect in equity. There is no consideration expressed in it, and none given, so far -as I can see, from the evidence. The allegation that it was given to enable Wm. Goldsmith, as administrator, to settle up the estate, as well as in consideration of love and affection to the grandchildren of her deceased husband, has not only no support in the testimony, but is directly contradicted in the testimony of Mrs. Hair.
Nor do I see any foundation for the idea that it was in the nature of a “family settlement.” The other parties surrendered nothing, and it does not even appear that any controversy had arisen calling for such a settlement. The position that the paper was executed in order to enable the petitioner to obtain immediate possession of the portion devised to her for life cannot be sustained, for there is not only no evidence that such was the consideration moving her to sign the paper, but as matter of law she was entitled to such possession. The paper amounted to nothing more than a naked declaration by the petitioner that she accepted something which she was clearly entitled to, in lieu of something else to which, in my judgment, she was equally entitled. The other parties gave up nothing, and the most that *581can be made of it is that she gave up something to which she was clearly entitled in consideration of receiving something else to which she had as good a right before as she would have after the surrender. I do not think it needs any argument or authority to show that a court of equity would never enforce such a one-sided agreement.
Nor do I think that the paper can be regarded as estopping her from asserting her claim of dower, for it does not appear that the parties claiming the benefit of such estoppel were induced by her execution of the paper to do, or omit to do, any act, or in any wise changed their position by the doing or omission of which they have sustained or might sustain any prejudice.
These views, thus hastily thrown out amidst the pressure of other official duties, compel me to withhold my concurrence in the view taken by the majority of the court.
Judgment affirmed.