dissenting. As I cannot concur in the conclusion reached by Mr. Justice McGowan, I propose to state, very briefly, the grounds of my dissent. Assuming, as he says, that in each case the question is one of intent, and that each case, as it arises, is to be determined by its own *535circumstances, I am unable to discover anything in this will which manifests an intent to make the provision for the widow a substitute for her legal right of dower. If such had been the intent, it would have been very easy to say so. The addition of four words—“in lien of dower”—would have been quite sufficient for the purpose. But there are no such words, and none of like import, in this Avill; and, in the absence of any express declaration of such an intent, the only question is, whether it is necessarily implied in what the testator has said, for that, as I understand it, is the well settled rule. Such an intent cannot be implied from the fact, that the devisees take as tenants in common, as in Bailey v. Boyce, 4 Strob. Eq., 84, and Hair v. Goldsmith, 22 S. C., 566, for the beneficiaries here do not so take. Nor can it be implied from the directions to the executors to sell, as is shown by the cases of French v. Davies, 2 Ves., 572; Adsit v. Adsit, 2 Johns. Ch., 448; Gordon v. Stevens, 2 Hill Ch., 46. It most certainly cannot be implied from the fact, that the allowance of dower would reduce the value of the provision made for the other beneficiaries, for that happens in every case. Whilden v. Whilden, Riley Ch., 208 ; Braxton v. Freeman, 6 Rich., 35; Sumerel v. Sumerel, 34 S. C., 89. Nor can it be implied from the fact, that to allow the dower would disturb the equality provided for in the will, as in Callaham v. Robinson, 30 S. C., 249, for the obvious reason, that equality was not contemplated or provided for in this will. For, while it is true that the testator does direct that the proceeds of sales and collections, required by the second clause of the will, shall be divided into two equal parts, yet one of those portions is given to David Bannister, or his sons, absolutely, while the other portion is not given to the widow, but the same is to be held by the executors, managed and controlled by them, with a direction to pay over the annual income thereof to the widow duriny her life, and upon her death, that half is given to the sons of David Bannister absolutely. In addition to this restricted provision for the widoAV, testator gives her all of his household and kitchen furniture. So that the practical result is that the widow is left without a particle of property Avhich she can call her own, and over which she can exercise *536any dominion or control, except the paltry bequest, out of an estate estimated to be worth twelve thousand dollars, of the household and kitchen furniture. It seems to me clear, therefore, that the idea of equality in the provisions made for his beneficiaries was not present to the mind of the testator, in making his will.
But in addition to this, as I understand it, one of the main objects in securing to the widow the right of dower, is to provide her with a home; yet here, under the construction given to this will, the widow is not only deprived of her home, but is left without a spot of ground which she can claim as her abiding place eveu for life, and the property which is only given to her absolutely is the household aud kitchen furniture, without any house or kitchen in which it can be used. I cannot think that the testator intended any such result; but, on the contrary, knowing, as he must be presumed to know, that he had no power to dispose of his wife’s dower, his intention was that she should retain that right, in addition to the provision made for her in his will, and that when he directed his executors to sell all of Ms real estate, he meant what he said, and did not mean that they should sell what he had no legal right to dispose of, the wife’s estate of dower. As is said by Dargan, Ch., in his Circuit decree, in Cunningham v. Shannon, 4 Rich. Eq., at page 140, which upon this point was affirmed 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 beyoud 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.”
Judgment affirmed.