dissenting. Not being able to concur in the conclusion reached by the majority of the court in these cases, I propose to state as briefly as practicable the reasons for my dissent.
According to all the text-writers, as well as the cases upon the subject, dower is a highly favored right, which, inchoate during coverture, becomes a vested estate in the wife immediately upon the death of her husband, over which he has no more control than he has over the wife’s estate of inheritance, or any other separate estate to which she may be entitled. Hence, when a husband undertakes to devise his real estate, it must be presumed that such devise is made subject to his wife’s right of dower, as it would be absurd to presume that he intended to dispose of that over which he has no control. But while these principles are universally recognized, the law also recognizes the power of the husband, by proper provisions for that purpose in his will, to put his wdfe to her election, whether she will take the provision made for her in the will, or insist upon her legal right of dower; and if, in such a case, she elects to take the provision made for her in the will, she loses her right of dower, not by any act of her husband, but only by reason of her voluntary surrender of such right. This is upon the principle that the provision in the will is regarded as made upon the condition that she will surrender her right of dower, and she is not permitted to accept the provision without complying with the condition.
It is, however, well settled that to put a wife to her election it must appear on the face of the will, either in express terms or by necessary implication, that the testator intended to annex as a condition to the provision made for the wife that she should surrender her right of dower. As is said by Lord Redesdale in *257Birmingham v. Kirwan, 2 Scho. & Lef., at page 452 : “It is, however, to be collected from all the authorities, that as the right to dower is, in itself, a clear legal right, an intent to exclude that right by voluntary gift must be demonstrated, either by express words or by clear and manifest implication. If there be anything ambiguous or doubtful, if the court cannot say that it was clearly the intention to exclude, then the averment that the gift was made in lieu of dower cannot be supported; and to make a case of election that is necessary, for a gift is to be taken as pure until a condition appears. This I take to be the ground of all the decisions.”
So in Gordon v. Stevens (2 Hill Ch., 46), Johnson, J., after affirming the rule thus laid down by Lord Redesdale, adds : “and this implication must arise from some provision in the will inconsistent with the assertion of the elaim.” In Cunningham v. Shannon (4 Rich. Eq., at page 140), Dargan, Ch., in his Circuit decree, which, upon this point, was affirmed by the Court of Appeals, says that every devise which a testator makes of land,, upon which the right of dower attaches, “is presumed to be given subject to the legal estate (of dower), unless the contrary appears, on the face of the will in express words, or by the strongest kind, of implication.” To the same effect see Adsit v. Adsit (2 Johns. Ch., 448), where Chancellor Kent reviews the authorities. See, also, the dissenting opinion of Dargan, Ch., in Bailey v. Boyce (4 Strob. Eq., 92), which, of course, is not referred to as authority, but simply because it presents a more thorough review of the authorities than I have been able to find in any other case.
Now, to apply these well settled and, as I understand it, undisputed principles to the case under consideration. Inasmuch as it is quite certain that there are no express words in the will indicating the testator’s intention that the provision made for his wife should be in lieu of her claim of dower, the real inquiry is. whether such intention must necessarily be implied from the provisions of the will, read as a whole — for that is the proper mode of. ascertaining the intention of a testator. So far as I have been able to discover, the cases do not furnish us with any general rule upon this subject, but each case must be governed by *258the particular provisions of the will which is under consideration. The cases, however, on the one hand, do furnish us with instances in which certain provisions have been held insufficient to afford a necessary implication of an intention to put the wife to her election ; while, on the other hand, there are cases which furnish instances in which particular provisions have been held to afford such a necessary implication.
As illustrations of the first class may be mentioned the case of Gordon v. Stevens (2 Hill Ch., 46), where the claim of dower was allowed, notwithstanding it was insisted, in one of the grounds of appeal, that the allowance of such claim would defeat the equality which would otherwise exist between the provisions made for the widow and the children; and where it was held that a devise of lands to trustees to sell, or with directions to the executors to sell, would not defeat the claim of dower, as such devise is understood to pass the real estate subject to the claim of dower. So, also, the case of Adsit v. Adsit, supra, as to the effect of a devise with directions to the executors to sell, where Chancellor Kent uses this strong language: “All the cases, however irreconcilable they may be in other respects, agree in this, that a devise of the lands to trustees to sell, or a direction to the executors to sell,- is understood to pass the estate subject to dower,” and in that case the - claim of dower was allowed, notwithstanding such a devise, as well as the provision made for thé wife by the will. So, too, the case of French v. Davies (2 Ves., 572), where a devise to the wife and others to sell was held insufficient to put the wife to her election.
As illustrations of the second class, may be mentioned the case of Bailey v. Boyce (4 Strob. Eq., 84),.where a testator gave to his -wife and an only daughter each one moiety of all his estate, both real and personal, and it was held that the claim of dower should be rejected as inconsistent with the provisions of the will, and conflicting with the evident intention of the testator to make an equal partition of his property. So, also, the case of Hair v. Goldsmith (22 S. C., 566), where a testator devised four-tenths of all his real estate to his wife for life, with remainder to her daughter, three-tenths to the children of his son, and the remaining three-tenths to the children of another daughter, and it was *259held that this provision for the wife was inconsistent with her claim of dower. It will be'observed that in both of the cases last cited, the dévi.ses were of undivided fractional portions of testator’s real estate, and not devises of separate and distinct parcels of land, and hence, the land devised passed to the devisees as co-tenants, each being seized per my and per tout of the entire premises ; and, therefore, the widow’s seizure by virtue of the devise, extending over every part of the land, was inconsistent with her claim of dower. It seems to me, that it is upon this principle alone that these two cases can be made consistent with the numerous authorities cited in the cases above referred to. This principle, however, cannot be applied in the present case, for here the devisees do not take as co-tenants, but, on the contrary, separate and distinct tracts of land are devised to each, and none of the devisees has any interest or share, by the terms of the will, in the tracts devised to the others.
I am unable to discover anything in the terms of this will which necessarily implies that the testator intended to put his wife to her election. Such an intention cannot be implied from the fact that the devisees take as co-tenants, for such is not the fact. It cannot be implied from the directions to the executors to sell, as is seen by the cases of Gordon v. Stevens, Adsit v. Adsit, and French v. Davies, above referred to. It certainly cannot be implied from the fact that the allowance of dower would reduce the value of the devises to the other devisees, for that happens in every case; and I think the assertion may be safely ventured, that not a single case can be found in which that fact has been regarded as sufficient, but, on the contrary, such an idea has been distinctly repudiated in many cases. Whilden v. Whilden, Riley Ch., 208; Braxton v. Freeman, 6 Rich., 35. In fact, every case in which dower has been allowed, in addition to the provision of the will, necessarily repudiates such an idea.
And, finally, it certainly cannot be implied in this case, from the fact that to allow the dower would disturb the equality provided for in the will, for the simple reason that no such equality is there provided for. So far as I can discover, there is not a word or phrase in the will which warrants the inference that the testator intended to make an equal division amongst his wife and *260children or grandchildren. He simply gives to her certain specific property, and certain other specific property to his children and grandchildren, without the slightest intimation as to what he regarded the value of such devises or bequests. Even the number of acres of the several tracts of land devised to the several beneficiaries is not equal, and there is nothing whatever to show that the idea of equality was present in the testator’s mind at the time he was making his primary dispositions. But when he comes to dispose of the remainders after the life estates created, the intention of equality was not only entertained, but plainly expressed — showing that when testator intended equality, he took care to so express his intentions.
The idea, therefore, that the testator intended to make the provision for his wife equal to those made for the other objects of his bounty, most certainly cannot be derived from the terms of the will; and if it have any foundation at all, it must rest upon extraneous evidence. Assuming, for the purposes of this case only, that such evidence would be competent, let us inquire into the nature of the evidence adduced. So far as the record submitted to us shows, the only evidence submitted on this point was what is called in the decree of the judge of probate, “the appraise bill of testator’s estate,” in which the value of the two tracts of land devised to the wife during life or widowhood is set down at $1,422 00
The value of the 3 tracts to Mrs. Robinson at 1,388 00
The value of the tract to children of John at 1,345 00
By what authority these appraisers undertook to put a valuation upon the real estate of the testator, it is difficult to conceive. The will did not direct any such valuation, and their authority, under the statute, was confined to an appraisement of the personal estate. Their act, therefore, in making this valuation of the real estate was clearly unofficial, and must be regarded as simply the estimate of private individuals, and as such “the appraise bill” was clearly incompetent evidence in this case for any purpose. It seems to me, therefore, that upon this ground, even if there were no other, the judgment below should be reversed.
It is said, however, that the judge of probate does not appear to have rested his decision upon this evidence; and hence, I sup*261pose, even if the evidence was incompetent, it was immaterial and did not affect the result. With all deference, it seems to me this is a mistake. The decree of the judge of probate is set out in the “Case,” and in that decree he says this “appraise bill” was in evidence, and, upon the valuations of the several tracts therein found, he proceeds to make a calculation for the purpose of showing that to allow the widow dower, in addition to the provision made for her in the will, would give her great advantages over the other devisees. What influence this may have had in inducing the conclusion to which the judge of probate arrived, I shall not undertake to conjecture. I find it in his decree apparently as one of the reasons for his conclusion, and feel bound so to regard it. What view the Circuit Judge took of this matter does not appear, as he simply affirmed the decree of the judge of probate in a short order, without alluding to this question — basing his conclusion upon the case of Hair v. Goldsmith, supra.
But even if this testimony should be regarded as competent, it seems to me that, so far from showing that the testator intended equality amongst the objects of his bounty, it shows exactly the reverse. What was the value of the testator’s personal estate does not appear, nor is the value of the personalty bequeathed to the widow shown by any evidence whatever. The judge of probate says in his decree: “As to the personal property, although there is no valuation placed upon it, yet it is apparently true that the bequest to petitioner is worth more than the share she would have received provided testator had died intestate, his debts being first paid.” If there was no valuation placed upon the personal property, it is difficult to conceive how it could appear that the bequest to the widow was of greater value than her share would have been if her husband had died intestate, especially as the record furnishes no intimation even as to the amount of testator’s debts. But waiving this, and taking the valuation of the real estate as set down in the “appraise bill,” there is no equality either in the number of acres or in their value. But when, in addition to this, it is seen that, by the terms of the will, the tracts of land devised to the widow are only given to her during widowhood, and that she acquires by such devise an absolute estate in only one-third thereof, or about one-ninth of the entire value of *262the real estate, it would seem to be conclusive that the idea of equality was not in the mind of the testator.
It seems to me, therefore, that in no view of the case can the petitioner be deprived of her right of dower by the provision made for her in the will; and that the result of this decision, from which I have ventured, with great deference, to dissent, will be to establish .the rule, that whenever a husband, by his will, makes provision for his wife, this, if accepted, will exclude her right of dower.
Judgment affirmed.