This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
If the husband's will contains a provision for his widow, which is intended to be in lieu of dower, and she accepts it, she cannot also claim dower. If the will expressly states that the provision therein is in lieu of dower, and the widow accepts it, there can be no question as to the exclusion or her dower right;51 but more frequently there is no such express declaration in the will, and the testator's intention in this regard has to be determined by a consideration of the question whether its provisions are plainly inconsistent with a claim of dower.52
In any case, in the absence of a statutory provision to the contrary, in order to exclude dower, the intention so to do must clearly appear. "As the right to dower is itself a clear legal right, an intent to exclude that right by voluntary gift must be demonstrated either by express words, or by clear and manifest implication. If there be anything ambiguous or doubtful, if the court cannot say that it was clearly the intention to exclude, then the averment that the gift was made in lieu of dower cannot be supported."53 Occasionally this not so merged in the fee as not to be revived upon the avoidance of the conveyance as in fraud of creditors. Humes v. Scruggs, 64 Ala. 40; Richardson v. Wyman, 62 Me. 280; Malloney v. Horan, 12 Abb. Pr. (N. S.) 289; See Matthews v. Thompson, 186 Mass. 14, 66 L. R. A. 421, 104 Am. St. Rep. 550, 71 N. E. 93.
51 Pomeroy, Eq. Jur. Sec. 496; Leak v. Randall, cited in Vernon's Case, 4 Coke, 4a; Bushe's Case, 2 Dyer, 220a; Gosling v Warburton, Cro. Eliz. 128; Van Orden v. Van Orden, 10 Johns. (N. Y.) 30; Hall's Case, 1 Bland (Md.) 203, 17 Am. Dec 275; Chapin v. Hill, 1 R. I.
52. French v. Davies, 2 Ves. Jr. 572; Birmingham v. Kirwan, 2 Schoales & L. 444; Bennett v. Packer, 70 Conn. 357, 66 Am. St. Rep. 112, 39 Atl. 739; Worthen v. Pearson, 33 Ga. 387, 81 Am. Dec. 213; Jackson v. Churchill, 7 Cow. (N. Y.) 287, 17 Am. Dec. 514; Konvalinka v. Schlegel, 104 N. Y. 125, 58 Am. Rep. 494, 9 N. E. 868; Church v. Bull, 2 Denio (N. Y.) 430, 43 Am. Dec. 754; Gordon v. Stevens, 2 Hill. Eq. (S. C.) 47, 27 Am. Dec 445.
53. Birmingham v. Kirwan, 2 Schoales & L. 444, per Lord Redes-dale. To the same effect, see Herrule is incorporated in the statute.54 In a considerable number of states, however, it has been changed by an express statutory declaration that, in case there is a testamentary provision in favor of the widow, she shall not be allowed to claim both that and dower unless an intention on the part of testator that she do so appears from the will.55
The effect of certain forms of testamentary provision, with reference to the question whether the presumption that the provision is not intended in lieu of dower is thereby overcome, may be considered as settled by the decisions, and reference will be made to a few of these.56 A mere devise to the widow of part of the lands in which she has a dower right is not of itself inconsistent with her claim of dower,57-58 but, in case the devise to the wife is followed by a specific devise to one who was dependent on the testator, a right of dower might be calculated so to diminish the latter devise as to be inconsistent therewith.59 A devise of bert v. Wren, 7 Cranch (U. S.) 370, 3 L Ed. 374; Hilliard v. Binford's Heirs, 10 Ala. 977; In re Whitney's Estate, 171 Cal. 750, 154 Pac. 855; Ailing v. Chatfield. 42 Conn. 276; In re Gotzian, 34 Minn. 159, 57 Am. Rep. 43, 24 N. W. 920; White v. White, 16 N. J. L. 202, 31 Am. Dec. 232; Adsit v. Adsit, 2 Johns. Ch. (N. Y.) 448, 7 Am. Dec. 539; Konvalinka v. Schlegel, 104 N. Y. 125, 58 Am. Rep. 494, 9 N. E. 868; Braxton v. Freeman, 6 Rich Law (S. C.) 35, 57 Am. Dec. 775; Otts v Otts, 80 S. C. 16, 61 S. E. 109; Higginsbotham v. Cornwell, S Gratt. (Va.) 83, 56 Am. Dec. 130; Miller v. Miller, 76 W. Va. 352, 85 S. E. 542. See editorial note, 14 Columbia Law Rev. 586.
54. 1 Stimson's Am. St. Law, Sec. 3244.
55. 1 Stimson's Am. St. Law, Sec. 3244; 1 Sharswood & B. Lead Cas.
Real Prop. 362; 1 Pomeroy, Eq. Jur. Sec. 494, and notes.
56. See 1 Pomeroy, Eq. Jur. Sec. 492 et seq.; 11 Am. & Eng. Enc. Law (2d Ed.) 57 et seq. and 2 Scribner, Dower, 439 et seq.. for a full consideration of the subject.
57-58. Lawrence v. Lawrence, 2 Vera. 365, 3 Brown, Parl Cas. 483; Lefevre v. Lefevre, 59 N. Y. 434; Jackson v. Churchill, 7 Cow (N. Y.) 287, 17 Am. Dec. 514.
59. Herbert v. Wren. 7 Cranch (U. S.) 370, 378; Ailing v. Chat-field, 42 Conn. 276. An intention to exclude dower is not conclusively shown by the fact either that the testamentary provision is of greater value than the dower interest (Evans' Lesse v. Webb, 1
[Sec. 225 land to the widow for her life or during widowhood does not of itself affect her dower right in other land;60 and such a devise for life or widowhood appears not to be necessarily inconsistent with her right to dower in the very land so devised.61
The gift of an annuity or rent to the wife, charged either partly or entirely on property in which she is dowable, is not necessarily inconsistent with her claim to dower in such property;62 nor is a devise to trustees or executors to sell so inconsistent with dower, whether or not there is a direction that a part of the proceeds be given to the widow, the sale in such case being made subject to dower.63 The dower right has been held to be intended to be excluded by a testamentary provision for her, accompanied by a devise to trustees with full power in the trustees to manage and control the land devised to them, since this is inconsistent with the wife's life estate in any of such land;64 and, in some decisions,
Yeates [Pa.] 424, 1 Am. Dec. 308), or that it is of less value (Cunningham's Estate, 137 Pa. St. 621, 21 Am. St. Rep. 901, 20 Atl. 714).
60. Lawrence v. Lawrence, 2 Vern. 365, 3 Brown, Parl. Cas. 483; Daugherty v. Daugherty, 69 Iowa. 677, 29 N. W. 778; Lefevre v. Lefevre, 59 N. Y. 434; Lewis v. Smith, 9 N. Y. 502, 61 Am. Dec. 706.