The objection, which rested upon the supposed release by the widow, seems to be abandoned in the argument, since in that the two other points only are pressed. But lest there should be any misconception, and as one or two other causes are made to depend upon this one, the point may be disjoosed of. To this objection to her claim, it is answered, on the other side, that the certificate of acknowledgment is insufficient, inasmuch as the justice does not certify to a personal knowledge of her, nor to her identity being proved, nor that the contents were made known to her. Viewed as a release, it admits of a serious doubt, whether it is valid, for the want of a releasee or grantee. Perhaps the only light in which it could be made available, would be to regard it (if possible) as a power to execute the deed for the wife, and relinquish her dower. But the view of this paper, which absorbs the others, is, that Augustus Cornell did make any conveyance under this power. He made none till after William had conveyed to him; and then he made that to Edwin, in his own right, and *557not by virtue of the power. So stands the case, and Charlotte, the plaintiff, did not execute that deed from her husband to Augustus, so that there is no release of her interest.
Another point made by the defendant is, that the plaintiff holds the fee simple title by the conveyance from. Edwin, and that this merges the claim for dower, and that, therefore, the claim for the latter is inconsistent. The error in this point is, in assuming that she has a title through Edwin, and the defendant is guilty of the inconsistency of setting up against her, a title which, he says, has no validity against him. He would estop her, because she took a title from Edwin. He says, she cannot deny the validity of that title. Undoubtedly, her dower would be merged, if she had the fee simple; and, in that case, she would have no need to claim dower, and she would not be here asking it. But the fact is, that she took no title from Edwin, for he had none, 'William having none when he conveyed to Augustus. The defendant’s purchase, under the judgment, took it away. And we should be very reluctant to decide that, because she undertook to obtain, and thought she was obtaining, a title from Edwin, she is estopped from saying it is no title; or, in other words, that she cannot claim her dower, when that proves to be invalid, and no title. As the law of dower then stood, the widow was. not to be cut off but by her own voluntary act, and certainly, her supposition that she was obtaining the fee, is not to be construed as a relinquishment of dower, when she fails of the fee.
The other objection made by the defendant to the plaintiff’s recovery, rests upon the provisions made for the widow, by the will of her husband. He states the general principle to be, that dower is barred by a testamentary devise accepted. He states the rule in the following terms : “In deciding the question, whether a devise bars dower or not, in any particular case, courts will examine, first, to see if the will directly expresses such to be the intent of the devisor in making the devise; and secondly, if there is no declaration of such intent, whether such iptent can be fairly in*558ferred to have existed, from the inconsistency of supporting both estates.” This, although not quite accurate, will do for this case. Chancellor Kent (4 Comm. 58, 3d ed.), says, that, when there is no express declaration, the intention must be deduced, by clear and manifest implication, from the will, founded on the fact that the claim of dower would be inconsistent with the will, or so repugnant to its dispositions, as to disturb and defeat them. This seems to be the result of the cases; and he cites the following authorities: French v. Davies, 2 Ves. 572; Strahan v. Sutton, 3 Ib. 249; Kennedy v. Nedrow, 1 Dal. 415; Adsit v. Adsit, 2 Johns. C. 448; Jackson v. Churchill, 7 Cow. 287; Pickett v. Peary, 2 Const. 746; Evans v. Webb, 1 Yeates, 424; Perkins v. Little, 1 Greenl. 150; Dickson v. Robinson, 1 Jacob, 503. To which may be added, Cauffman v. Cauffman, 17 S. & R. 16; Duncan v. Duncan, 2 Yeates, 305; Reed v. Dickerman, 12 Pick. 151; Hamilton v. Buckwalter, 2 Yeates, 389; Church v. Ball, 2 Denio, 430; Beardsley v. Beardsley, 5 Barb. 324; Willis v. Watson, 4 Scam. 65. This inconsistency means an incompatibility. The claim of dower must defeat, or interrupt, or disappoint, some provision of the will.
But so far is the claim in this cause, from disappointing or interfering with the will, that it perfectly harmonizes with it; it goes to the same end. The will intends to give her all the estate; and if there be anything which the testator cannot give her by his will, but which she is entitled to as dower, there is certainly no inconsistency with the will, in her claiming it. Nor is there any inconsistency with the condition, that she remains a widow, and that if she does not, she shall be restricted to her dower interest. That condition not complied with, would leave her even more free, if possible, to claim for dower. Iiam does not take under the will, but, in effect, against it, and he is not disturbed by her taking under it. There would be an inconsistency in claiming the same property, both by the will and by dower right. But she does not claim the interest in these lots, by virtue of the will. By the devise, the husband gives her all he has remaining. She then comes and claims her dower *559right in some other property, which hád formerly been taken from him by judicial sale, her right iu which she had not released. There is no inconsistency in this — no conflict.
The agreed facts do not show, that the widow holds any other property than the interest in the lots which were sold under execution. The case is left blind on this matter. But the argument of plaintiff assumes or admits, that she does, and we have considered it under that supposition. The provision of section 1407 of the Code has no application.
Finally, even if the plaintiff had claimed this property under the will, it is presumed that she could not be barred by its provisions, when the result shows that there is no title iu her husband. The whole doctrine, upon which the defendant bases himself, in relation to the will, assumes that there is a title in the testator. But if this fails, she is remitted to her right of dower. 2 Bouv. Inst. 248; Kidney v. Coussnaked, 12 Ves. 143; Larrabee et ux. v. Vanalstyne, 1 Johns. 307, cited in 7 Cow. 289, and the cases before cited.
The judgment of the District Court is reversed, and a writ of procedendo is awarded.