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"It is impossible for me to entertain any doubt in this case of the testator's intention, which was that the devises under the will should be in lieu of dower. The strongest circumstance against this, is the limiting the use of part of the messuage, and providing her with firewood, and keeping horse and cow, &c. to the time during which she shall remain a widow; which might lead to the conclusion that should she marry, she might determine this enjoyment under the will and recur to her dower. And I will admit, that I know of nothing on principle to hinder this; for though the right of dower accrues on the death of the husband, it is not necessary that the claim be made on the death; and certain enjoyments may be given, and used in lieu of a suspension of the claim; but it would not seem to me that this could be the meaning of the testator here. But that he limited these enjoyments during widowhood, in consideration that on marriage even should that happen immediately on his decease she would have at least four years and eight months before the eldest son came of age to enjoy the whole, and dispose of the issues; and seven years more to enjoy the one half, before the youngest son was of age, and after these sons both came of age, if married, she would have a husband to take her with him; or having had the issues for so long a time, she could provide for herself and him both. It is true she would have had to provide in the mean time for the maintenance and education of the children; but the eldest son, who would at the death of the testator have been turned of sixteen, could have been no charge, on either of these accounts, but must have been worth wages at work on the plantation. The second son turned of nine years, could not have been long, a burthen, but on the contrary soon worth more than his maintenance and education: such education as the testator's grade of education himself, must lead us to presume he contemplated.
The legacies to the three daughters were not payable, but respectively as they should arrive at the age of eighteen years. The eldest then of the age of thirteen, and some
months; so that there would have been the use of her legacy £150 for near three years before she came of age, and also of her own services, which considering the situation in life, of the testator, and the customs of the country, must have exceeded her support. The same could not be said with regard to the two youngest who had the like legacies; but who were of the ages of not more than four and two years. But the inventory of the personal estate, exclusive, as I understand it, of what was specially devised to herself, for though she is directed to appraise the personal estate, and to take it at a moderate valuation, and out of it to pay legacies, yet he could not mean that it should be necessary to appraise what was specifically left to herself; I say the inventory exclusive of this, and paying debts, amounted to the sum of £1000, and taking out of this the sum of £150, the legacy to the married daughter Hannah, there would remain £850 and the use of this until the three younger daughters came to their ages respectively to receive their legacies; so that there would be considerable pickings out of this property, for a great length of time, especially when we take into view, the issues of the real estate in her possession, in a part of the country of good soil and generally highly cultivated, and not far from market, being in the neighbourhood of Lancaster. Adding to all this, the personal estate bequeathed to her, I can entertain no doubt of the intention of the testator that he considered himself as making a disposition which should be in lieu of dower; and I think that in justice, she ought so to consider it. I know the language of the law, that to bar the claim of dower, the quantity of a bequest is not sufficient; but it cannot but be a circumstance that will weigh, in considering the intention. But this is not the only circumstance here; for though I will not say that the dispositions are absolutely inconsistent with the taking dower after the youngest of the two sons coming of age, which would be the time at farthest that she would be likely to claim it, when if married, she must claim it; for in that case her use of the real estate would determine as to the whole, and the enjoy ments provided during her widowhood, would cease ; yet ne
vertheless, on the score of the manifest intention of the testator, and her taking under the will and acting under it, I would hold her bound by it. Dower is favoured in law; and a good deal, from the early times, on this principle, that the personal estate was usually nothing, and it was on her dower only that the widow, could be supported. Hence the greater care in the provisions of the law for facilitating the recovery of dower, and the liberality in the decisions of courts in favour of it, the application of the strictness of which did not so well comport with a different nature of property; and hence an act of the legislature of this state, of the 4th April, 1797, Sec. 10, which provides "that if any testator after the passing of this act shall devise, or bequeath to his wife any portion of his estate, such devise, and bequest shall be deemed and taken to be in lieu and bar of her dower Lout of the estate of her deceased husband, in like manner as if the same were so expressed, unless the testator shall by his last will and testament declare otherwise, any law, usage, or custom of this commonwealth to the contrary in anywise notwithstanding." In this, as in many other cases, the legislature has been under the necessity of changing the law, from what it stood on decisions; aud perhaps it could not otherwise be done, the courts thinking themselves bound by what had been determined to be law by decisions; though, by the by, the decisions were never more than evidence of principles, which are supposed to exist in the law, before the decision is made according to them. But according to this evidence, that of decisions, the courts of this commonwealth would seem to have thought themselves bound to say, that notwithstanding the evidence of intention, if not express, or necessary, and incontrovertible from circumstances; or inconsistent with the taking under the will, dower should not be barred; yet so far as my knowledge of the understanding of the country went, this idea of the law was contrary to the general understanding; and it is evinced by this act of the legislature which I take to be precisely recognizing what was the general understanding. For surely no man who made a will, and made these arrangements, in the disposition of his property, did imagine that it could be broken in upon, or that
there could be superadded to it, a legal claim of dower." I know that this case does not come under the act of assembly; but I think myself at liberty to decide it in the spirit of it, and that latitude which I take it, the courts are warranted to take in the application of decisions to the nature of circumstances; and it is in this sense that the charter to William Penn, grants the privilege of enacting laws, provided nevertheless that the said laws be consonant to reason, and (as near as may be conveniently) agreeable to the laws, statutes, &c. of England. And I take it that the courts of justice which by the same charter the legislature of the province had a right to establish, and the judges, in the application of the decisions of the common law must be considered as having a like latitude; and in fact it would seem to be so contemplated by the charter; for the word "laws" in this section, would seem to refer to the decisions of the courts as well as to the acts of the legislature. It is only the common law, and such of the statute laws of England, as have heretofore been in force, that after the declaration of our independence, is introduced by the act of assembly of the 28th of Jan. 1777 And I refer the “heretofore in force" to the words common law, as well as to the statute laws, though in strict gramma tical construction, it can refer only to the statute laws; but there is the same reason, for a reference to both; and I admit that decisions are evidence, and I will not contend but that they may be evidence of the most weight in deciding what of the common law was in force in the province, but they are not the only evidence; for the reason of him who has to decide on the application of a principle is also evi dence.
But without overthrowing English decisions; but applying without an adstriction to the mere letter, I cannot but be of opinion that there is enough in the circumstances of this case to warrant the inference that they amount to a declaration plain of the testator's intention; and though the testator could not by his will, deprive the widow of her dower, yet as she has an interest under the will in the devise of personal estate, and a great interest coupled with the trust,
and she accepted both, it would seem that she ought to be considered as accepting in lieu of dower.
But supposing the widow to have a right to dower, damages being given, and the dying seised having been found by the jury, and not having been laid in the declaration so that it can be considered as found, and the dying seised, or the having been seised, which is the same thing, being necessary to be found, to entitle to damages, I need not consider this, being of opinion on the principal point that the verdict ought to have been for the defendant.
II Black. Com. 140.
THE calender which is now generally adopted in the christian world, owes its origin to Romulus. Imagining the sun performed his course through all the seasons in 304 days, he divided the year into 10 months, making it to begin in the spring on the first of March. Numa giving the year 355 days, added two months, and transferred the beginning of the year to January. As this was still making the year too short, intercalary months were to be occasionally added. This producing confusion, Julius Cæsar with the assistance of the mathematician Sosigenus, undertook to rectify it. Taking all the days which had been lost by the former method of reckoning, he formed one long year of 15 months or 445 days. After this had terminated, the Julian year commenced, January 1st. B. C. 46. As the annual revolution of the sun is completed in 365 days and about 6 hours he made the year to consist of 365 days, adding a day in every 4th year, to the 23d of Feb. or the 6th of the Kalends of March, which was to be twice reckoned. Hence bissextile, or leap year.
The Julian year however, was still imperfect; for as the sun performs his annual revolution or rather the earth performs its annual revolution round the sun, not exactly in 365