The decree and the master's report will be opened; and leave given to the defendant Vannuis to put in his bond and mortgage before the master; and the master will be instructed to charge the complainant with the rents, as above stated.

Order accordingly.

SUSAN ADAMSON V. DAVID AYRES, Executor of SAMUEL
ADAMSON, deceased, et al.

A., by his will, provided that his wife should have her lawful right of dower out of his estate; that the executor should sell and dispose of all his estate, both real and personal; that his debts be paid; that his brother John have $500; his brother James $100; and that the rest and residue of his estate be divided between his two sons.

On bill filed by the widow, stating, among other things, instructions given by A. to the person who drew the will, so to draw it as to give her her lawful third of the personal property, and the use of a third of his lands for life; and demurrer to the bill; it was held, that the widow was entitled to her lawful third of the personal estate.

It was said by the Chancellor, that the situation of the estate as to the comparative amounts of realty and personalty might be shown, to influence the construction of the will.

THE bill states, that Samuel Adamson died in June, 1840, seized of real estate of the value of $2000, and possessed of personal property of the value of $7000; having first made and published his last will and testament, dated March 5th, 1840, as follows:-"1st. It is my will that my beloved wife, Susan, have her lawful right of dower out of my estate. 2d. That my executor shall, as soon as &c., sell and dispose of all my estate, both real and personal, and the proceeds thence arising to be disposed of as follows, viz.: First, it is my will that all my just debts and funeral expenses be duly paid. Second, I give and bequeath to my brother John Adamson $500. Third, to my brother James Adamson $100, on condition that he shall not bring any account against my estate; if he do he is to forfeit the above legacy. (Fourth and fifth immaterial.) Sixth, the rest and residue of my estate I give and bequeath to

5 349 46 343

my two sons, to be divided equally between them;" and appointed David Ayres executor of his will, and guardian of his two sons, they being minors.

The bill states, that the testator, being a farmer, and altogether uninformed as to the correct mode of drawing wills, procured the said David Ayres to draw the said will for him; and that Ayres, accordingly, undertook, not only to act as the amanuensis of the testator, but also to give such legal counsel and advice as might be suggested by the subject, and to give to the intentions of the testator such form and expression as should be least subject to misapprehension or doubt. And that the testator on that occasion, and immediately before the drawing of the will by Ayres, asked Ayres what portion of his property, real and personal, his widow would be entitled to by law if he, the testator, should die without making a will; and that Ayres, in reply, told him that she would be entitled by law to one third of all his personal property, and to the use of a third part of his real estate for her life. That the testator, on receiving this answer, directed Ayres so to write the will that his wife should have such portion of his property; remarking, at the same time, that a third of his personal estate, and the use of a third of his real property, would be sufficient for his wife; and that the testator, in the same conversation, in expressing his intent with respect to a provision for his wife, directed Ayres to write the will, giving her her lawful right of dower out of his estate. That Ayres, though more accustomed to such business than the testator, had but a limited knowledge therein, being uneducated in the law, and was, as well as the testator, under the impression and belief that the phrase "lawful right of dower out of my estate," was a form of expression that would convey the meaning of the testator, and would convey the idea that it was the testator's intention that his widow should receive and be endowed of such portion of his estate, real and personal, as she would have had a lawful right to had he died intestate; and that Ayres, influenced by these impressions, and under the direction of the testator as to his wishes, introduced into the will the said phrase, "lawful right of dower out of my estate." The bill further states, that after the making of the will, the testator frequently, in conversation with divers persons, and, among

others, with some of the witnesses to the will, stated that he had given his wife the third of all his property, and had left her in the same situation she would have been in if he had died without making a will; and that he thought that would be sufficient for her.

The bill prays, that the defendant David Ayres, executor &c., may be decreed to pay the complainant a third of the residue of the personal estate, after paying the debts, funeral and testamentary expenses.

The defendants demurred to the bill.

J. P. Bradley, in support of the demurrer, cited Talbot's Cases, 240; Fonb. Eq., Book i., ch. 3, sec. 11, and note O.; 3 Chan. Cases, 133; 2 Edwards, 139, 146.

F. T. Frelinghuysen, contra, cited Ram. on Wills, 54; 1 Burrows, 271; 1 Bro. Ch. 474; 2 P. Wms. 135; 1 Mason, 10; 4 Vesey, 437; 2 Jac. and Walk. 205; 1 Ves. sen. 127.

THE CHANCELLOR. The testator declares it to be his will, that his beloved wife have her lawful right of dower out of his estate; that his executor sell and dispose of all his estate, both real and personal; that his debts be paid; that his brother John have $500, and his brother James $100; and that the rest and residue of his estate be divided between his two sons.

It is contended on the part of the defendants, that under this will, matters stand, in reference to the widow, only in the condition in which they would have stood if the wife had not been at all mentioned in the will; that as in law parlance "dower" relates only to lands, we must substitute the word "lands" for the word "estate," and read the clause in which the wife is mentioned thus: "I will that my wife have her lawful right of .dower out of my lands."

If the decedent had made no will, the widow would have had her lawful thirds in both the real and personal estate. Did the testator intend, by making the will, to cut her off from the personal estate? If he did, he had only to omit to mention her

name in the will, framed as it is in other respects. But he says, she shall have her lawful right of dower out of his estate. "Estate" embraces both real and personal property. We are asked to substitute the word "lands" for the word "estate." This would certainly relieve the will from all difficulty of construction; but it would render the whole clause useless; and it would leave no object or motive in the testator for introducing it, but that of putting on the face of the will a clear intention of cutting the wife off from all interest in the personal estate. The will shows no such intention, but a contrary intention; and so it was admitted on the argument. The word "dower," as used in this will, cannot be permitted to control the whole clause for the purpose of excluding the widow, against the intention of the testator, from the right which the law would give her in the personal property. The word "estate" should, rather, govern, or influence the construction of the clause in aid of that intention. The clause being useless if it be supposed to be confined to lands, we ought rather to suppose it was introduced for a purpose, and that a beneficial one to the widow.

If it be said that the substitution of the word "lands" for the word "estate" would make the clause plain; the substitution of the word "thirds" for the word "dower" would make it quite as plain. If the words had been "dower in my real and personal estate," the word "dower" would not limit the interest to the realty; and the word "estate" includes both real and personal property. What the testator meant by the whole sentence, is the matter to be determined.

I am inclined to think that the word "dower," as it stands in the sentence, is not to be taken as having been used in its technical sense; but is to be taken as having been used as equivalent to "thirds.". We are not without cases in which particular words used in a will, opposed to the intention of the testator, have been rejected as having been used by mistake, or through ignorance of their force, or have been construed to have the meaning of other words: 2 Myl. and Kean, 149; 6 Sim. 49; 2 Dess. 32; 2 Munf. 234; 1 Ibid, 549; 1 Russell and Myl. 407; 6 Mad. 343; 3 Paige, 9; 2 Paige, 122; 2 A. K. Marsh. 466.

If the different provisions stood in the following order: My

executor shall sell all my estate, real and personal, and, after paying the debts, pay to my brother John $500; and to my brother James $100; and the rest and residue of my estate shall be divided between my two children; my will, however, is, that my wife shall have her lawful right of dower out of my estate: I think the intention of the will could not be mistaken. These are the provisions of the will. The putting them in the above order serves only to show, more strikingly, that the clause had an object and purpose to effect, beyond what would have been the effect of the will if the clause had been left out; and that object was to prevent the wife's being cut off from the personal estate. But if the clause is read as the defendant would read it, it is without object or purpose, and would have no influence whatever, and, it should therefore be presumed, would not have been added. We have, then, a word in the clause sufficiently broad to carry out what would naturally be, and no doubt was, the intention of the will, the word "estate."

The description the testator gives of the interest the widow is to have in this estate, is, "her lawful right of dower." I cannot doubt that the word "dower" may stand so connected in a will as to mean the lawful third of the personal as well as of the real estate; and I think it means that in this will.

On the bill as it stands, and in view of the facts which the demurrer must be taken to admit, I am of opinion that the demurrer should be overruled.

It is not necessary now to examine the question, whether parol evidence of the declarations of the testator would be ad: missible. The situation of the estate, as to the comparative amounts of realty and personalty, might certainly be shown. Suppose the estate consisted of $100 in land, and $10,000 in personalty; the court would not shut its eyes to that fact; and it would have a legitimate influence on the reading of the will. To this extent the cases go without difficulty: 12 Price, 216; 4 Russ. 454.

Demurrer overruled.