Kinsey v. Woodward , 2 Del. Ch. 92 ( 1842 )

Johns, Jr., Chancellor.

Thequestion is, whether there is such a conflict between the will of S. Woodward and the claim of his widow to dower as shall put her to an election, to take the bequest to her in the will or the dower. In my view, the bequest of a personal legacy to the wife and a direction to executors to sell the real estate would not put the widow to her election, any more than a direct devise of'such land to a third person after a pecuniary legacy to the wife. The question, then, is, whether the direction to convey a good and sufficient fee simple title to the purchaser can vary the case, so as to put the widow to her election. To'say so would be to give to the directions about conveyance a greater effect than the direction to sell; but the executors could convey no greater title than that which they were authorized by the will to sell. It seems to come back to the same question, whether the land is devised to be sold free of dower. On examining the cases I,think that this does not come within any of those where the widow was put to her election. Those cases are such where the assertion of the claim to dower would come into conflict with the possession of the land devised, and thus defeat the will. There is no such difficulty here. The testator directed a sale only of his real estate—a sale of his title. This can be carried out by a sale subject to dower; and the conveyance of a fee simple title may be made, so far as the testator has ordered" a sale to be made. It does not appear that the testator meant that his children should have the proceeds of sale of their mother’s share in the real estate. And if the land shall be sold clear of dower, it is obviously the sale of a greater estate than the testator held at the date of the will, which it cannot be denied was subject to.the wife’s claim of dower. If on this will the widow can be put to her election, it will be difficult to find any case of a devise of land, after a legacy to the wife, that would not fall within the same principle.

Decree affirmed by the Court of Errors and Appeals, at the June Term 1842. 3. Harring R. 459.