This was an action of dower in 250 acres of land in Lancaster
county, brought by Anne Kennedy, widow, who was the wife of Richard
Johnson, deceased, against Thomas Nedrow, and Anne, his wife,
Catherine Wistar, and Rebecca Martin. The Tenant pleaded, first, a
special plea, 'That Richard Johnson, the husband, on the 12th of
August, 1767, made his will, and thereby devised a moiety of 500
acres of land to his wife, the demandant, in fee; which devise was
in lieu of dower:' And, secondly, they pleaded, 'That the demandant
had sued out a writ of partition against the tenants for making
partition of the said 500 acres of land, and had recovered.
&c.' To these pleas the demandant replied, the tenants
demurred, the Demandant joined in demurrer, and issues.
On the first plea a case was stated in substance as follows:
'That on the 12th of August, 1767, Richard Johnson made his last
will and testament, and therein bequeathed and devised in bac
verba; 'Imprimis, I give and bequeath unto my loving wife, Ann
Johnson, all that my lot of ground, situate &c. which I bought
of John Millar, &c. with the houses, barns, and other
appurtenances thereunto belonging: Also, all my household goods,
horses, live stock, and other moveables, which I have here in
Lancaster, and in Germantown, Philadelphia county, to her, her
heirs and assigns forever: Also L1000 lawful money of Pennsylvania,
in bonds and bills, to be paid to her, or her heirs and assigns, in
six months time after my decease, with interest, by my executor
herein after named. I give and bequeath unto my brother John
Johnson,
Page 1 U.S.
415, 416
and to each of his three sons, and his daughter, &c. the sum
of L5, to be paid three months after my decease, &c. I give and
bequeath unto my sister Anne Nedrow, all that my 300 acre tract of
land, situate, &c. with the appurtenances, to her, her heirs
and assigns forever. I give and bequeath unto my sister Catharine
Wistar, all that my 300 acre tract of land, situate, &c. to
her, her heirs and assigns forever. I give and bequeath unto my
loving (wife) Anne Johnson, the one moioty or undivided half of all
that my 500 acre tract of land, situate, &c. to her, her heirs
and assigns forever: Provided always that if my said wife Anne
Johnson after my decease, should be married to another man, that
then she shall have the said moiety during her life, with
sufficient power to give and bequeath the same at her decease, to
whomsoever the will, excepting to her second husband, or any from
or under him. I give and bequeath the other moiety, or undivided
half part of my said 500 acre tract of land unto my three sisters,
Ann, Catharine, and Rebecca, each one third part, to them, their
heirs, and assigns forever. My will is that there be no water works
built or erected on any part of the said 500 acre tract of land for
the space of , &c. I give and bequeath my tract of land lying,
&c. unto my sister Ann, and to her heirs and assigns forever;
under and subject to the yearly rent of 40s &c. to be paid to
my loving wife, Ann Johnson, and to her heirs and assigns forever.
I give and bequeath unto my sister Catharine, my twenty and odd
acres of land, lying, &c. and the appurtenances; also, twelve
acres of wood land to be cut off a large tract adjoining, &c.
to be holden by her, her heirs and assigns forever; under and
subject to the yearly rent of L6, to be paid to my loving wife Ann
Johnson, her heirs and assigns forever, and also subject to as much
firewood as my wife shall have occasion for, when she comes to live
at Germantown. I give, devise, and bequeath to my sister Rebecca,
and her son Paul, all that my tract of land (the remainder after
the said 12 acres are taken off) containing 50 acres, more or less,
adjoining, &c. to be holden to them, their heirs and assigns
forever; under and subject to the yearly rent of L4 to be paid to
my loving wife, Ann Johnson, her heirs and assigns forever; the
said tract not to be sold till Paul arrives at 30 years of age. I
give and bequeath unto my sister Ann, all that my tract of 12 acres
opposite the last mentioned 50 acres, &c. to her heirs and
assigns forever. I give and bequeath L50 to the poor house keepers
of Germantown, &c. I give and bequeath L50 to the use of the
Pennsylvania Hospital. As concerning all the rest and residue of my
effects, bills, bonds, mortgages, monies, and estate whatsoever,
not herein before given, I would have divided equally between my
loving wife Ann, and my sisters, Ann, Catharine, and Rebecca, part
and share alike to each of them, their heirs and assigns forever.
And I do appoint and nominate my loving wife, Ann Johnson, &c.
to be executors of this my last will and testament.'
Page 1 U.S.
415, 417
The question for the opinion of the Court on this plea and case,
is, whether, upon the whole will, the devises and bequests therein
contained, or any of them, to the said Anne, the demandant, made,
are sufficient in law to bar the said Anne from recovering her said
dower?' The cause was argued at the last term by Sergeant and
Bradford, for the Demandant; and Coxe and Lewis, for the Tenants:
And now the Chief Justice delivered the opinion of the Court to the
following effect:
M'Kean, Chief Justice. Two questions have been made on this
record, in the discussion of which, the law relating to the subject
has been exhausted; The first is, 'Whether the devises to the
Demandant in the will of Richard Johnson, shall be deemed a
satisfaction of her dower?' And the second is, 'Whether by the
action of partition brought by the Demandant, wherein it is
acknowledged that the moiety, out of which dower is now claimed,
belonged to the Tenants, she is not stopped from recovering in this
action?' In delivering our opinion on this occasion, we shall avoid
a recapitulation of the arguments offered by the counsel on either
side; confining ourselves to the questions proposed, a brief
statement of the reasons of our judgment, and a referrence to the
books, on which we rely, as authorities to support it. 1. Dower is
a legal, an equitable, and a moral right. Prec. in Chan. 244. It is
favored in a high degree by law, and, next to life and liberty,
held sacred. Lill. Abr. 666. G. Three incidents entitle a woman to
dower: Marriage, seisin, and the death of the husband. 1 Inst.
32.a.b. And a widow may be barred of dower by a jointure made in
pursuance of the statute of 27. H. 8. c. 10. sect. 6. Such a
jointure may, indeed, be made either before, or after, marriage;
but with this difference, that if it is made before, the wife
cannot wave it, and claim her dower at common law; which she can
do, if the jointure is subsequent to the marriage. No other
settlements, however, in lieu of jointures, are bars to a claim of
dower; nor, it must be remembered, was a jointure itself any bar
antecedent to the passing of the statute of H 8. for, it is
established law, that a right, or title, of dower, cannot be barred
by a collateral satisfaction. Wood's Inst. 125. 1 Inst 36. b. Nor,
in short, by any thing but a plain and express intention of the
parties. Ibid. Finch Rep. 368. 1 Chan. Ca. 181. 2 Chan. Ca. 24, 2
Vent. 340. 4 Co. 1.2. In the will before the Court, it is no where
expressed, that the devises to the Demandant shall be in lieu of
dower; but, it is contended, that the intention of the testator,
collected from the words of the whole will, appears to be, that the
Demandant shall be barred of her claim at Common law; that the
devises to her are of lands in fee; and that these, being of four
times the value of her dower, ought to be considered as a
recompense, or satisfaction, for
Page 1 U.S.
415, 418
it. But in the words of the whole will, we can discover no
express intention to that purpose; and, although an estate for
life, or even during widowhood (which is the same as an estate for
life, since it is in the wife's own power to make it such; and
these, by the bie, are the lowest estates 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, it
must appear to be so intended by the words of the will, and not
inferred from its silence, or presumed upon conjecture: For, no
devise to a wife, even of an estate in fee simple, although ten
times more valuable than her dower, will be, of itself, a bar of
dower; but, it will be considered as a benevolence, and she is
entitled to both. 2 Freem. Rep. 242. Prec. in Chan. 133. Nor, in
such a case, will equity interpose against the wife; for, I cannot
find any instances in which relief upon this subject, has been
given, but in the following: first, Where the implication, that she
shall not have both the devise and the dower, is strong and
necessary; secondly, Where the devise is entirely inconsistent with
the claim of dower; and thirdly, 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 short, the authorities
are numerous and explicit, that dower cannot be barred by a
collateral recompence; that the devise of any thing to a wife,
cannot be averred to be in bar of dower, because a will imports a
consideration in itself; and that the devise, without other matter,
is to be taken as a benevolence, and the devisee deemed a
purchasor. 4 Co. 3. 4. 9 Mod. 152. 2 Vern. 365. 2 Freem. Rep. 242.
Prec. in Chan. 133. 2 Will. 624. 3 Atk. 8. 436. 1 Ld. Raym. 436. 1
Lutw. 734. Brook(tit.Dower) pl.69. Dyer 248. 1 Vez. 55. 230. 2 Eq.
Abr. 388. pl. 14. 18. 1 Eq. Abr.219. 1 Brown. Chan. Rep. 292. To
which may be added two decisions in this Court, Blackford et ux.
vs. Kennedy, in 1769: And Kennedy et ux. (the present Demandant)
vs. Wistar, in 1779. The Court, therefore, unanimously think, that
the devises to the Demandant, in the will of Richard Johnson,
cannot be deemed a satisfaction or bar of dower in this action. 2.
The second question, enquires, whether the Demandant is barred in
this action, by the recovery in the action of partition? And, in
support of the affirmative, the counsel for the tenants have cited
1 Roll. Abr. 862. pl. 4.864. pl.8.Co. Litt. 27.a. Dower is an
excrescent interest taken out of the inheritance for a time, which
being elapsed, the interest falls again to the owner of the
inheritance. But the institution of the action of partition became
necessary to appropriate a moiety of the 500 acres of land to each
of the devisees, not merely for life, but forever; for, the
judgment is, that the partition should remain firm and stable
forever. If, then, any other person than the Demandant, had a right
of dower in the whole of the 500 acres, although such person could
not have been made a party in the partition, the partition
Page 1 U.S.
415, 419
might certainly have been effected, notwithstanding that right
of dower. And why should not the same be done in the case before
the Court? The devisee held the moiety allotted to her, subject to
the claim of dower; and, in doing this, there was nothing
inconsistent, or uncommon: Nor, can we perceive, how the recovery
in partition, estops the Demandant from saying, that she has a
claim of dower in that part of the premisses which has been
assigned to the Tenant. As, indeed, on the one hand, there is no
case, nor dictum of any Judge, to warrant this plea, so, on the
other, we think reason and justice are against it. The case cited
by the counsel for the Tenants only says, that, in dower, the
Demandant claims dower of lands unde nihil habet &c. and,
therefore, she shall be stopped from claiming anything more.
Upon the whole, the Court are clearly of opinion, and direct,
that judgment be entered for the Demandant.
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