Page:United States Reports, Volume 1.djvu/429

418 

1789.

it. But in the words of the whole will, we can difcover no expreʃs intention to that purpofe ; and, although an eftate for life, or even during widowhood (which is the fame as an eftate for life, fince it is in the wife's own power to make it fuch; and thefe, by the biz, are the loweft eftates that will operate in bar of dower, either in a jointure, or will) may be given with the view, and operate to bar a widow's claim at common law; yet, i muft appear to be fo intended by the words of the will, and not inferred from its filence, and eftate in fee fimple, although ten times more valuable than her dower, will be, oƒ itʃelƒ, a  bar of dower; but, it will be confidered as a benevolence, and fhe is entitled to both. 2''Freem. Rep.'' 242. ''Prec. in Chan.'' 133.

Nor, in fuch a cafe, will equity interpofe againft the wife ; for, I cannot find any inftances in which relief upon this fubject, has been given, but in the following:– 1ft, Where the implication, that the fhall not have both the devife is entirely inconʃiʃtent with the claim of dower ; and 3dly, Where it would prevent the whole will from taking effect ; that is, where the claim of dower would overturn the will in toto. 3 Atk. 437.

In fhort, the authorities are numerous and explicit that dower cannot be barred by a collateral recompence ; that the devife of any thing to a wife, cannot be averred to be in bar of dower, becaufe a will imports a confideration in itfelf ; and that the devife, without other matter, is to be taken as a benevolence,  and the devifee deemed a purchaʃor. 4CO. 3.4.9. Mod. 152. 2Vern. 365.2 Freem.Rep. 242. ''Prec. in Chan.''133. 2Will. 624.3Atk.8.436. 1 ''Ld. Raym.'' 436. 1 Lukw. 734. Brook (tit. Dower) pl. 69. Dyer 248. 1 ''Brown. Chan. Rep.'' 292. To which may be added two decifions in this Court, ''Blackƒord et ux. vs. Kennedy, in 1769 : And Kennedy et ux. (the prefent Demandant) vs. Wiʃlar,'' in 1779.

The Court,therefore, unanimoufly think, that the devifes to the Demandant, in the will of Richard Johnʃon, cannot be deemed a fatisfaction or bar of dower in this action.

2. The ʃecond queftion, enquires, whether the Demandant is barred in this action, by the recovery in the action of partition? And, in fupport of the affirmative, the counfel for the tenants have cited 1Roll.Abr. 862. pl. 4. 864. pl. 8. Co.Litt. 27. a.

Dower is an excreʃcent intereft taken out of the inheritance for a time, which being elapfed, the intereft falls again to the owner of the inheritance. But the inftitution of the action of partition became neceffary to appropriate moiety of the 500 acres of land to each of the devifees, not merely for life, but forever; for, the judgment is, that the partition fhould remain firm and ftable forever. If, then, any other perfon than the Demandant, had a right of dower in the whole of the 500 acres, although fuch perfon could not have been made a party in the partition, the partition might