delivered the opinion of the Court:
There are two questions presented for our determination as arising under the will of Charles E. Starkweather, the first and the main one being whether the one-eighth interest in the estate became a vested interest in Mrs. Starkweather, so that she made a valid disposition thereof by her will.
It is insisted on the part of the appellants, they being the two youngest children, and the three charitable institutions to whom the one-eighth of the estate given to Mrs. Starkweather was devised over by the seventh clause of the will in case she should not elect to take the same in lieu of dower, that the election she did make was prematurely made and therefore void, so that no interest vested in her, and the devise over to them took effect.
The testator devised to his wife one-eighth of his estate, “provided she then (that is when the youngest child attains twenty-one years of age) elects to receive the same in lieu of dower in my estate; ” and it is contended that this was a devise upon a condition precedent not only that she should elect, but that she should elect at the specified time, to take it in lieu of dower ; that a condition precedent must take place before an estate can vest; that it must be strictly performed, and that the election here could be made only at the time fixed by the testator, that is, when the youngest child attained his majority.
The point of difference that here arises is, whether it was the intention of the testator to make it a condition precedent to the vesting of this estate, that the election to take it in lieu of dower should be made at, and not before, this particular time.
The testator, having in view the protection of his wife’s interest, and to guard against an indiscreet election, might have made it a condition precedent that she should not exercise her right of election before a specified time. But the will discloses no such motive on the part of the testator. The great purpose of the will was, as appears, to keep the property together under the management of the executors, they p.aying over the rents and profits to the wife and children until the youngest child became of age, when the property was to be divided and the devisees take their respective shares. So far as concerned this purpose, the election to take under the provisions of the will, in lieu of dower, might as well be made before as at that particular time.
To make it a condition precedent to the vesting of the estate that this election should be made at, and not before; the time in question, wmuld not appear to subserve any purpose of the will, or to accord with any expressed intent of the testator.
The words in the fourth clause of the will giving the eighth of the estate to Mrs. Starkweather, “provided she then elects to receive the same in lieu of dower,” lend some countenance to the idea of a condition precedent, but it is removed by the immediately succeeding proviso in the same sentence: “provided, however, that my wife is not required to elect whether she will take the eighth under this will in lieu of dower, until the time for partition of my estate under this my will.”
This language clearly implies that she may elect before that time, although she can not be compelled so to do; for, why provide that she should not be required to elect before that time if she had no right to elect until that time arrived ?
Under the statute the widow must make her election within one year after the probate of the will, whether she will take a devise under it or take her dower. Taking the whole clause together, its apparent meaning is that the widow may elect, at any time prior to the time for the final division of the estate, to accept the provisions of the will in lieu of dower, but shall not be required to do so, and that her election can not be postponed beyond that time. She must then elect, if she has not before elected; the election must be made by that time. For which there is good reason, as the time having come for the distribution of the estate, it would be important to knoAV whether it was to be disencumbered of doAver or not. But no reason is perceived Avhy the AvidoAv might not exercise her right of election as Avell before as at that particular time, and any such condition of the devise, that the exercise of such right could not take place before, but only at that time, would seem to be a merely arbitrary and frivolous one, the making of which should not be imputed to the testator in the absence of a clearly expressed intention to that effect.
We must adopt the contrary construction from that of the appellants, and hold that the election by Mrs. Starkweather, although made prior to the coming of age of the youngest child', to accept the provisions of the will in lieu of dower, was valid, and the eighth of her husband’s estate consequently vested in her and passed by her will to the legatees named therein.
The other question presented for determination is, whether Mrs. Starkweather’s right to one-third of the income of the estate determined with her life, or was she the absolute OAvner of such one-third until the majority of the youngest child, so that she had the power to dispose of it by will.
The paramount purpose in this Avill was, that the estate of the testator should be kept intact until the youngest child became of age. Even should his wife prefer to take her dower, the >vish of the testator is apparent that the entirety of his estate should not be broken in upon by any assignment of dower before the arrival of the time he had fixed upon for its division, as the fourth clause contemplates that as the time when dower should be assigned, if at all.
In furtherance of this leading purpose of the testator, as would seem, he directed that his AAÚfe should not be required to elect between the provisions of the will and dower until the time for the division of the estate, and in the meantime, to remo Am all inducement to ask for the assignment of doAAmr, he places her in as favorable a situation as if her dower Avere actually assigned to her, by giving her one-third of the net income of his estate. The direction in the third clause is, “to pay oner third thereof (the net income of the estate) to my wife till the majority of my youngest. child, which one-third is to be for her doAver in my estate.” It is to be marked that the testator does not stop AAÓth the words “to pay one-third thereof to my wife till the majority of my youngest child,” but adds, “which one-third is to be for her dower in my estate.”
The death of the wife before the majority of the youngest child was an event evidently not in the contemplation of the testator. This one-third of the net income seems to have been a temporary provision for the widow, designed to stand for and take the place of dower, for the time limited. It is expressed to be, “for her dower in my estate.” It is the measure of dower in extent of interest. Dower imports a life estate, and we regard the true construction to be that this was in the nature of a dower estate with its incident of duration ; and as her dower estate would have determined with her life, so this right to one-third of the income of the estate terminated at that time.
To this view, as respects dower, the appellant’s counsel oppose the objection that the word dower includes, under our statute, one-third of the personal estate forever, after the payment of debts, and therefore the term should not be taken to import a life estate any more than an absolute one.
We are not aware of any legal sanction for giving such scope to the term dower, save in the act to amend “An act concerning wills,” passed in 1847. It is there declared, “The word ‘ dower,’ as used in the 46th section of the 109th chapter of the Revised Statutes, entitled (Wills,’ shall be construed to include a saving to the widows of persons dying intestate, of one-third of the personal estate forever, after the payment of debts.” But even this definition would not include any personalty here, as it is not a case of intestacy.
We have no doubt the testator, in his use of the term, meant dower proper, and it is in that sense we have considered it.
The court below made a proforma.decree which, upon the first question, accords with the views we have expressed ; but upon the second question it adjudged that Mrs. Starkweather had an absolute and vested interest in one-third of the net income of the estate until the youngest child arrived at the age of twenty-one years, and that she made a valid disposition thereof by her will; as respects which last question, the decree is held to be erroneous, for which reason it is reversed in that respect, and the cause remanded for further proceedings in conformity with this opinion.
Decree reversed.