Page:United States Reports, Volume 1.djvu/428

Rh 

1789.

“ The queftion for the opinion of the Court on this plea and cafe,

“is, Whether, upon the whole will, the devifes and bequefts there-

“ in contained, or any of them, to the faid Anne, the demandant, made,

“ are fufficient in law to bar the faid Anne from recovering her faid

“ dower?”

The caufe was argued at the laft term by Sergeant and Bradƒord, for the Defendant ; and Coxe and Lewis, for the Tenants: And now the  delivered the opinion of the Court to the following effect:

M‘KEAN, Chieƒ Juʃtice. – Two queftions have been made on this record, in the difcuffion of which, the law relating to the fubject has been exhaulted; The firʃt is, “ Whether the devifes to

“ the Demandant in the will of Richard Johnʃon, fhall be deemed

“ a fatisfaction of her dower?” And the ʃecond is, “ Whether by

“ the action of partition brought by the Demandant, wherein it

“ is acknowledged that the moiety, out of which dower is now

“ claimed, belonged to the Tenants, fhe is not ftopped from re-

“covering in this action?”

In delivering our opinion on this occafion, we fhall avoid a recapitulation of the arguments offered by the counfel on either fide; confining ourfelves to the queftions propofed, a brief ftatement of the reafons of our judgment, and a referrence to the books, on which we rely, as authorities to fupport it.

1. Dower is a legal, an equitable, and a moral right. Prec. in Chun. 244. It is favored in a high degree by law, and, next to life and liberty, held facred. ''Lill. Abr.'''666.G. Three incidents entitle a woman to dower; Marriage, felfin, and the death of the hufband. 1 Inʃt. 32. a.b. And a widow may be barred of dower by a jointure made in purfuance may, indeed, be made either before, or after, marriage ; but with this difference, that if it  is made before, the wife cannot wave it, and claim her dower at common law; which fhe can do, if the jointure is fubfequent to the marriage. No other fettlements, however, in lieu of jointures, are bars to a claim of dower ; nor, it muft be remembered, was a jointure itfelf any bar antecedent to the paffing of the ftatue of H.8. for, it is eftablifhed law, that a right, or title, of dower, cannot be barred by a collateral fatisfaction. Wood's Inʃt. 125. 1 Inʃt. 36. b. Nor, in fhort, by any thing but a plain and expreʃs intention  of the parties. ''Ibid. Finch. Rep.'' 368. 1 ''Chan. Ca.'' 181. 2Chan.Ca. 24, 2 Vent. 340. 4. Co. 1.2.

In the will before the Court, it is no where expreʃʃed, that the devifes to the Demandant fhall be in lieu of dower ; but, it is contended, that the intention of the teftator, collected from the words of the while will, appears to be, that the Defendant fhall be barred of her claim at common law ; that the devifes to her are of lands in fee ; and that thefe, being of four times the value of her dower, ought to be confidered as a recompenfe,or fatisfaction, for Rh