Lasher v. Lasher , 13 Barb. 106 ( 1852 )

By the Court, Willard, P. J.

The pecuniary provision, made by George Lasher by his last will, in favor of his wife, the plaintiff, was not stated in the will to be in lieu of doWer. It was to continue, moreover, so long only as she remained his widow, and it was charged with the furnishing a home for his two daughters, so long as they remained single.

When the testamentary disposition in favor of the wife is not expressed to be in lieu of dower she is not put to her election, unless the terms and provisions of the will be totally inconsistent with her claim. (See 2 R. S. 714, § 13. Church v. Bull and wife, 2 Denio, 430. S. C. in Supreme Court, 5 Hill, 206. Sanford v. Jackson, 10 Paige, 266. Cruise's Digest, title 6, ch. 4.) The presumption is that the bequest was intended as a bounty, unless the contrary appears, expressly, or by necessary implication. The claim of dower is always favored; and it must prevail where the testamentary provision is of shorter continuance than the estate in dower, and charged with a bur-then. The devise to the defendant was of the bulk of the testator’s estate, and was apparently ample to fulfill all the intentions of the will, after deducting the dower of the plaintiff. Her acceptance of dower, therefore, did not deprive her of the support provided for in the will.

The testator devised to the defendant one hundred acres of his home lot and fifteen acres of wood land, in fee, and charged him with the payment of one hundred and fifty dollars to each of his three sisters, being $450. The will then proceeds thus: “ I also will and order that my said wife Catherine be well and sufficiently supported and maintained by my son Elias out of the property bequeathed to him, so long as she may remain my widow.” It is insisted by the defendant that as the term bequeath is only applicable to a testamentary disposition of personal estate, and as none such is mentioned in the will, the defendant takes nothing under the will which is chargeable with the support of the plaintiff. Although the word “ devise" is the appropriate term, in a will, to pass real estate, and bequeath, the term applicable to gifts of personal property, yet a strict adherence to technical words is not necessary to give effect to any species of disposition. In Doe v. Tofield, (11 East, 246,) the testator’s real estate was held to pass, under a will bequeathing his personal estate; it being manifest, from the whole scope of the instrument, that a disposition of his real estate was intended; and see to the same effect Roe v. Patterson, (16 East, 221.) Technical words are indeed presumed to be used in their legal sense, unless the context contains a clear indication to the contrary. (Lane v. Lord Stanhope, 6 D. & E. 352, per Lord Kenyon.) And to the same effect are the observations of Lord Alvanley in Thellusson v. Woodford, 4 Ves. 329.) Where the intention of the testator is plain, it will be allowed to control the legal operation of words, however technical. (Jesson v. Wright, 2 Bligh, 1. 2 Will. Ex. 710.) It is perfectly manifest that the testator intended to charge the support of his wife upon the property devised to his son Elias. This intention should not be defeated, because in referring to the real estate, devised to him, he designates it as “property bequeathed ” to him. The testator clearly intended to provide a support for his wife. He had devised to his son an ample estate able to bear the'’charge, and had bequeathed to him nothing. By the construction insisted on by the defendant, the whole provision for the wife will be defeated, and the defendant receive the bulk of the estate exonerated from the charge. This would be unjust. The word legacy may apply to real estate, if the intent so require. (2 Hilliard, 529, § 55.) The defendant, having accepted the devise to himself, became charged with the support of the plaintiff. It is admitted by the pleadings that on the death of the testator he entered upon and was possessed of the lands devised to him.

The acceptance of the lands devised charged with the plaintiff’s support, was a sufficient consideration to raise a promise to pay for that support. The value of the support during the period covered by this, action was proved. Ho question on that point is raised by the bill of exceptions. The former suit was for the support of the plaintiff, for a period previous to the time for which the present action was brought, and therefore formed no bar to the present action. It was not like the case of Fish v. Folley, (6 Hill, 54.) There was an express covenant, the breach of which entitled the covenantee to damages equivalent to the rights secured by it. But here is a charge of support, continuing in its own nature, during the lifetime of the plaintiff, which could not be estimated in a single suit.

There is nothing in the language of the will which indicates that the plaintiff was to he supported in the house on the premises ; nor did it appear that the expense of the support in the family of her son in law was any greater than if she had kept house. The ease differs from Pool v. Pool, (1 Hill, 580,) which was a covenant to keep and maintain certain children, which the court thought from all the surrounding facts, meant to keep and maintain them as members of the defendant’s family. One of the children voluntarily went away, and did not return, and it was held that the covenantee could not sustain an action to recover the value of the support. There was no evidence that the defendant offered to support the plaintiff, in his own house, or elsewhere.

[Warren General Term, May 3, 1852.

Willard, Hand and Cady, Justices.]

The record of the former suit was introduced by the plaintiff without objection at the time. The remark of the learned judge, that the record was evidence of the defendant’s entry under the will, and of the defendant’s promise, was entirely immaterial, inasmuch as the defendant’s entry under the will stands admitted by the pleadings, and the law raises the promise, to support the plaintiff, from the acceptance of the devise.

On the whole, I perceive no error in the ruling at the circuit.

New trial denied.