JOHN KINSEY et al., complainants below, app't. vs. MARY WOODWARD, defendant below, resp't.

JOHN KINSEY et al., complainants below, app’t. vs. MARY WOODWARD, defendant below, resp’t. A bequest of personal property to the wife, with a devise that the real estate shall be sold and a fee simple title or titles conveyed, being of equal “tenor” with those by which the testator held the same, is not such a devise as will defeat the widow’s claim of dower, or put her to an election. Appeal from the Court of Chancery, New Castle county. Samuel Woodward, died seized in fee of'a house and lot, and of a farm containing one hundred and twenty acres, with a stone house, barn, &c., erected thereon, having made his last will and testament by which, (after directing the payment of his debts, and giving to his wife certain articles of furniture,) .he devised as follows: — “and further my will is, that my executors set apart the sum of three thousand dollars out of my estate, the interest of which they or either of them- are to receive and pay over to my said wife annually and every year during the period of time that she remains my widow. Item, I give and bequeath to my two half-sisters, Lydia and Esther Wood-kvard, (children of mj step-mother, Hannah Woodward,) to be equally divided between them, my undivided one equal fifth part of one thousand dollars, being the sum allotted by agreement to my said step-mother out of my father’s estate, to create her annuity. Item, |l give and bequeath to Eliza Toner, (who has been living in my ’amily some time past,) the sum of one hundred dollars. Item, and do hereby direct that -as soon as practicable after my decease, the remainder of my household goods of every description, stock and arming utensils, &c., together with all my real estate, be sold by my xecutors for the highest and best price that can be obtained; and I o authorize and empower them to convey'to the purchaser or pur-hasers of Said real estate, a good and sufficient fee simple title or itles, being of equal tenor with those by which I now hold the same; nd all the proceeds arising from said sale both personal and real, ith other moneys remaining either on hand or owing me at the time f my decease, to be equally divided amongst my four daughters, hamely: Margaret Kinsey, Sarah Bailey, Susanna Smedley and Rachel Chandler, and in case either of my said daughters depart this jife prior to my decease, then and in such case, the share of them so lying shall descend to their children in equal portions.” The testa- or left a personal estate exceeding $3,000, after the payment of all ebts and legacies, except the bequest to his wife of the interest of |!3,000, during widowhood. The complainants were the residuary legatees and executor of S. Woodward. The defendant claimed both the legacies bequeathed to her by the will, and also her dower in the testator’s real estate. The question submitted to the chancellor was, whether these bequests were in equity a bar to the dower, so as to put the widow to her election. The chancello!' dismissed the bill, with costs, on the ground that the said bequests were not a bar to the dower, and i'e fused to compel the widow to elect between them and the dower. Whereupon an appeal was prayed and granted. Chandler, for the appellant. Chancery will compel an election between a devise or bequest and dower wherever — 1st. It appears expressly that the devise was designed to be in lieu of the dower. 2d. Where from the will it is to be ascertained by a fair construe-) tion, that is was the intention of the testator that the devise, &c.: was to be in lieu of dower. This may be made out by implication, And wherever there is a decided inconsistency or repugnancy be, tween the devise and the claim of dower, the dower will be defeated.| (1 Font. Eq. 316, note of Am. Ed.) This principle is in conformit; with a still more general principle of law and equity, that whoeveij claims a benefit under an instrument shall carry it out in all its parts, and give effect to its general purpose. (2 Mad. Chan. 49.) It i; not necessary that the testator should declare the devise to be a sub stitute for dower; but it will be enough if such appear from the whol will to have been the intention of the testator. (2 Vern. 581, Noye.\ vs. Mordaunt; 2 Eq. Ca. Ab. 353; 8 Fin. Ab. 366; Amb. 730; Cruis< Dig. tit. Dower 210; tit. Devise 21; 1 Brown’s Ch. Ca. 292, 445.) Th provision of the will directing the executor to sell all the estate, per) sonal and real, must be defeated if this claim of dower is sustaine' That claim will require a life estate in one-third of the real estate t be set off to the widow; and will prevent the sale and conveyance it. For the will requires a good and sufficient fee simple title to b given to all the land. The executors cannot perform this will if th widow stands in the way with her dower, nor can she set up a clai: to dower without resisting the will. A conveyance subject to dow would not give a fee simple title according to the will. A covenarj to make a good and sufficient deed conveying the legal title, requin a conveyance clear of dow’er and all other incumbrances. (1 Johns, Rep. 286-9.) This will goes further: after directing the sale and conveyance the fee simple title, it directs that the title or titles conveyed shall be equal “tenor” with those by which the testator held the land. These, words were regarded below as restraining the previous directions; but we think it clear that they were added merely by the unskilfulness of the writer, with a view to express the same purpose of the testator before expressed, by way of alteration or amplification. The sentence itself is awkward and ungrammatical. But according to the rules of criticism, the burden of a sentence is to be looked for in the beginning of it rather than in the end, as all men naturally present the most prominent matter first in the structure of language. Words used by an illiterate testator are to be taken in their popular signification. If these words are construed to restrain and qualify the previous direction to sell and convey in fee simple, they reduce the direction to an impossibility. For it would require the conveyance to be strictly-such as it then was, a fee simple subject to an inchoate right of dower, which might or might not become perfect by the death of the husband before the wife. The tenure by which the and was then held, was not that of a perfect dower interest, and so ong as the testator “held” the land, there never could be any perfect .itle to dower. Then how can the will, under this construction, be sffectuated by a sale and conveyance of the land, subject to a perfect fight of dower? No power can authorize them to convey subject to ust such a right as the widow had when the will was made, for no ¡¡uch right exists in law or fact, or can exist, because the contingeny which then hung over the right of dower has been resolved by eath, and the tenure of the land, if it is still subject to dower, is 3ged. The construction of the court must be such as to avoid ¡his impossibility, which the testator could not have contemplated; nd fix itself on the plain direction to sell and convey in fee simple. Again: the direction is to sell the land for the highest and best rice that can be obtained for the same. Now how can the highest nd best price be obtained for this land by selling in fee simple unin-umbered; or by selling it subject to a life estate in one-third? I do ot lay much stress on this, but I think it of some consequence, as owing what was the intention of the testator; that a full and most dvantageous sale was in his mind. The intention governs in ase of wills, to the exclusion of all forms and rules applicable to Ither papers. This case must stand on its own circumstances; on e construction of the will in reference to what the testator meant. Wales, for the appellee. The title to dower is a claim paramount any title under the will, and is highly favored. In order to ex-elude dower, the intention of the testator to do so must be plainly expressed in words, or be an implication as plain as if such words had been used. The rules by which the intention of the testator may be inferred are well fixed by adjudged cases. Where the word “estate” is used, it may be restrained by the context to the personal estate. (7 Eng. Com. Laxo Rep. 8.) In taking up this will we find the general subject about which the testator was treating was personal property; all bequests; no reference to land. The bequest to the wife is a general pecuniary bequest during widowhood, and not for life; in restraint of marriage; a bounty out of his personal estate; and then a residuary bequest, still applying to personal estate, as implying a residue of that. Then comes the provision for the sale oí his land. The title to dower is so prominent in the view of a testator, as well so much favored in the law, as obviously to require the expression of an intention to defeat it where such is the intention. (3 Johns Ch. Ca. 448; 4 ib. 9; 7 Coicen Rep. 287.) In all the cases it is con tended that a devise of the land in fee simple to third persons, is no inconsistent with the right to dower in the widow; though a pecunia ry bequest he also made to the widow. No devise to the wife, how ever great, will of itself be considered in lieu of dower. (1 Dalla Rep. 418; 1 Yeates’ Rep. 424; 4 Kent's Com. 57-8; 1 Eden’s Char\ Rep. 57 to 66; 2 ib 139, note.) An annuity charged on a mixed fun of real and personal estate is not a bar of dower. To raise a case of election, the intention as manifested by the wi must be dear and decisive, certain and manifest (1 Poicell on D vises, 442; 21 Law Lib. 262.) In what part of this will is there ths intention “clear, manifest and incontrovertible,” “demonstrating” tb] intention of the testator to defeat his widow’s dower? The beque; must be taken to be a benevolence and bounty. It is a pecuniar! bequest not charged upon land: and the land is devised to third pe sons. The intention must be collected from the will itself, and m from any thing else; and must be collected on principles fixed by a judged cases. These decide that neither a pecuniary bounty to til wife, nor a full devise of land to third persons, is to be held as d feating the widow of her dower. What is the effect of the order sell? It must be taken as the intention was, to sell that which tl| testator could sell; and he could not sell it clear of dower. And has further expressed his intention that the same title should be co veyed as he held himself, and that was subject to dower. Adm ting that the matter is doubtful on the intention, the decision must be favor of the'dower. Mr. J. A. Bayard replied. The chancellor assigned the reasons of his decree. Johns, Jr., Chancellor.- — -The case below, and perhaps here, was hether there is such a conflict between the will of S. Woodward id the claim of his widow to dower as shall put her to an election take the bequest to her in the will or the dower. In my view the ¡quest of a personal legacy to the wife and a direction to executors sell the real estate, would not put the widow to her election any ore than a direct devise of such land to a third person; after a pe-miary legacy to the wife. The question then is, whether the diction to convey a good and sufficient fee simple title to the pur-íaser can vary the case so as to put the widow to her election, o say so would be to give to the directions about conveyance a ■eater effect than the direction to sell; but the executors could con-iy no greater title than that which they were authorized by the will sell. It seems to come back to the same question, whether the nd is devised to be sold free from dower. On examining the cases thought that this did not come within any of those where the widow as put to her election. Those cases are such where the assertion ' the claim to dower would come into conflict with the possession ’the land devised, and thus defeat the will. There is no such dif-culty here. The testator directed a sale only of his real estate — a de of his title. This can be carried out by a sale subject to dower, id the conveyance of a fee simple title may be made so far as the stator has ordered a sale to be made. It does not appear that-the tester meant that his children should have the proceeds of sale of their other’s share in the real estate. And if the land shall be sold clear ’ dower, it is obviously the sale of a greater estate than the testa-r held at the date of the will, which it cannot be denied was sub-ct to the wife’s claim of dow'er. If on this will the widow can be tt to her election, it will be difficult to find any case of a devise of nd, after a legacy to the wife, that would not fall within the same •inciple. [MAJORITY — Booth, Chief Justice.] The chief justice delivered'tbe unanimous opinion of the court. Booth, Chief Justice. The question in this case depends on the >ctrine of election, the principles of which are well established, he only difficulty is in applying them to the facts of each particular case. No person is allowed to claim under a deed or will, without giving' full effect to every thing contained in it, so far as such person is concerned. He cannot take under, and at the same time, in opposition to it. He cannot accept and reject the same instrument; because it is against equity and good conscience, that a person should hold and enjoy a gift or devise by virtue of a will, which he could not do without it; and at the same time defeat its provisions by asserting a paramount claim to that which, by the will, was intended for the benefit of others. He must, therefore, either wholly comply with the will, or wholly repudiate it and adhere to his paramount claim. In regard to dower, it seems from all the cases to be an established rule, that a court of equity will not compel the widow to make her election, unless it be shown by the express words of the testator, that the devise or bequest was given in lieu or satisfaction of dower; or unless it appears, that such was the testator’s intention, by clear and manifest implication arising from the fact that the claim oi dower is plainly inconsistent with the devise or bequest, and so re. pugnant to the will as to defeat its provisions. If both claims cat stand consistently together, the widow is entitled to both, although the claim under the will may be much greater in value than hei dower. In the present case, there is no express declaration in the will, excluding the defendant’s right of dower, or indicating that the beques' and annuity were intended to be in lieu or satisfaction of it. No could the slightest implication of an intention to that effect exist, hai the testator omitted that clause in the will, which authorizes the exj ecutors to convey to the purchaser of his real estate, a good an sufficient fee simple title. If we view the case without that clause there is a total absence of every thing like an intention to bar th right of dower. It appears by the case stated, that in addition t his real estate, the testator’s personal property at the time of hi| death, was more than sufficient, after the payment of debts and leg; cies, to set apart the sum of three thousand dollars for the purpos of raising the annuity to his wife during her widowhood. This prol vision then for her benefit, is wholly out of his personal estate; i| not charged upon, and has no reference to his real estate. The a nuity and bequest of household furniture, viewed by themselve; would be considered simply as the bounty or benevolence of the te, tator to his wife. There would be no inconsistency between the ij and her claim of dower; and no repugnance in that claim, to the mere sale itself, of the testator’s real estate. The assertion of the right of dower could not impair or defeat the testator’s direction to his executors, simply to make such sale; and the fact, that the annuity, because given only during widowhood, is less beneficial than dower, would of itself, be a strong reason against the interference of a court of equity. So far then, the bequest, annuity, claim of dower, and sale of the real estate, would all consistently stand together. But it is contended for the complainants, that the clause in the will authorizing the executors to convey to the purchaser or purchasers of the testator’s real estate, a good and sufficient fee simple title, being M equal tenor with that by which, he held the same, is defeated by the ¡claim of dower, and therefore presents a case of election: that the ords “good and sufficient fee simple title” mean the legal estate in ee simple, clear of all liens and incumbrances; and that such a title annot be conveyed, if the land is to be subject to the incumbrance if dower: that by the clause referred to, the testator must have in-ended the purchaser of his real estate should hold it discharged from he dower; otherwise, the words contained in the clause must be re-ected as useless; whereas, effect must be given if possible, to all the vords of a will, and none are to be rejected, unless the intention of he testator, apparent from other parts of the will, requires it; that iy the expression being of equal tenor, &c., the testator must be un-lerstood as meaning the same title by which the lands came to, or vere received by him; and, therefore, if conveyed by his executors ubject to dower — as dower is no part of the title, and can only arise fter bis death — the title of the purchaser -would not be of equal tenor ith that by which the testator held his real estate. After a careful examination of this will, we cannot give to the ords on which so much stress is laid, and on which the whole ar-ument for the complainants is founded, the force and meaning con-nded for. We admit, that upon a contract for the sale of lands, here the vendor agrees with the purchaser, to make a good and suf-\cient deed in law to vest him with the title, as was the case in Jones vs. Gardner, (10 Johns. Rep. 206,) relied on by the complainants’ jounsel, or to convey a good and sufficient tillp in fee simple; such greement may very properly, according to the evident intention of e parties, be construed as a covenant to convey the legal estate in e, free and clear of all valid liens and incumbrances. In Jones vs. ardner, the court considered that the deed of the plaintiff and wife tendered by him to the defendant, was not a compliance on the part of the plaintiff with his covenant; because the deed did not embrace the whole of the land agreed to be conveyed; and because the wife of the plaintiff had not executed it with the solemnities required by law: that in this respect, the deed was imperfect, and did not fulfil the contract, inasmuch as the title to be vested in the defendant, meant the legal estate in fee, free and clear of all valid claims, liens and incumbrances; and, therefore, that the claim of dower being an incumbrance on the land and not barred by the deed, was inconsistent with the title agreed to be conveyed. With all respect for this authority, and however conclusive we might deem it, if the present case depended on the construction of a covenant to convey lands for a full and adequate consideration, we cannot attribute the same import and signification to the words used in this will, as was given to them in the case referred to, unless it appeal's to have been the intention of the testator to use them in the same sense, and attach to them the same meaning. The counsel for the complainants admit, that if the testator had omitted the clause respecting the conveyance, and simply directed his real estate to be sold, the sale would be subject to the claim of dower, and no incon sistency could arise between them. This is apparent. But whethe: the clause in question were omitted or not, the effect, in our opinion is the same. If the mere direction to sell, does not put the defend ant to her election, it is not perceived how the authority to conve\ the title is to do so. In either case, no other or greater estate 01 title can be conveyed, than that which the testator held when he made his will. Suppose then, the clause to be omitted. The ex press power to sell impliedly confers all incidental powers prope and necessary to carry into effect the power expressly given. Among the implied powers, is the authority to execute a good and sufficien deed to convey what is sold; for without such deed conveying th testator’s title, the sale is incomplete. Under the implied authoritj to make a deed, what title would the executors convey? Precise! the same which the testator held in the property he had a right t| sell; but not a title which was not his, but paramount to any th could be claimed under his will. The deed then, to be executed b; the executors to the purchaser, would purport to convey a good anj sufficient title in fee simple in the testator’s real estate, such as h had and held at the time of making his will; that is, subject to hi] wife’s right of dower. But viewing the case with the clause as it stands in the will, expressly giving the executors the authority to convey, can any .other or greater title be conveyed than without the clause1? The language of the testator is this: “And 1 do authorize and empoiver them” (his executors,) “to convey to the purchaser or purchasers of said real estate, a good and sufficient fee simple tille or titles, being of equal tenor with those by which I now hold the same.’’ Does the testator by these words show a plain, manifest intention that the good and sufficient fee simple title to be conveyed, shall be free and clear from his wife’s claim of dower? Or does he not rather express directly the'reverse? By a fee simple title being of equal tenor, &c., is to be understood a title of the same purport, or the same in substance, or the same in effect, with that by which the testator held his real estate at the time he made his will. What was his title at that time? No other than a title in fee simple subject to his wife’s inchoate right of dower; and ¡consequently it was only sueh title his executors were authorized to convey. It seems to us, that no other meaning can be attached to the testator’s words; and therefore that with or without the clause Sn question, the real - estate, upon a sale by the executors, must be ponveyed subject to the defendant’s right of dower. I But admitting, according to the construction of the complainants’ [counsel, that the words “a good and sufficient fee simple title,” when [used either in a deed or will, import a title free and clear of all liens fend incumbrances; the result is not varied; because, those words fere qualified and restricted by the words immediately following, to [wit: “being of equal tenor, &c.;” plainly showing that the testator intended such title as he held at the time of making the will. What fclse could have been his intention? If he meant that his real estate |hould be conveyed free and clear of dower, he would have used ■inly the former words and omitted the latter. But it is more probable, if the design to bar his wife’s dower, was the leading or prevailing idea influencing his mind in the disposition of his real estate, that luch design would have been shown by an express declaration, that Ids real .estate should be sold free of dower, or that he intended the Innuif.y to be in lieu or satisfaction of it. The complainants’ case [hen cannot be sustained, unless the words “being of equal tenor, &c.” le rejected as useless or superfluous: which is forbidden by that car-linal rule of construction, that effect must be given, if possible, to all lie words of a will. But further. Supposing the construction of the ■lause in the will, on which the whole of the complainants’ ca’se is founded, is doubtful and uncertain; then it follows, that a sufficiently clear case is not presented for the interposition of a court of equity to compel the defendant to make her election: that this is not a case where the intention of the the testator, as manifested by the will, is clear and decisive; or where — to use the language of lord .Alvanly in French vs. Davies (2 Ves.jr. 572,) — “it is clear, plain and incontrovertible, that the testator could not possibly give what he has given, consistently with the defendants’ claim of dower.” Chandler, and J A. Bayard, for appellants. Wales, for the respondent. The opinion of this court is, that the present is not a case of election; and, therefore, that the decree of the chancellor be affirmed, and the complainants pay the costs.