Dodge agt. Dodge.

able amount of personal property, and seized of other real estate in New York and New Hampshire. He gave portions of the real estate out of the city of New York to each of his children, and to some of them shares of his personal estate.

Whether the division of his estate amongst his children was an equal one, neither the pleadings nor the evidence enable us to determine. It is enough for us to know that he was competent to understand the claims of the several members of his family upon his bounty, and he is to be presumed to have made such a division of his property as was right and just, in view of the situation and claims of his wife and children.

The right of the widow to dower, in the lands of her husband, is superior to all other liens and claims upon it, not created by her act, or existing at the time of the mar riage. The husband cannot, by any act of his, deprive her of this right. If he makes provision for her by his will, and does not declare that it shall be in lieu of dower, she is, as a general rule, entitled to both provision and dower. (Fuller agt. Yates, 8 Paige, 325.)

Whether she is entitled to both, or is put to her election between the provision in the will and dower, is a question of intention on the part of the testator.

The intention to give both is presumed, unless the other provisions of the will are such as to manifest an intention to put her to her election. (Lewis agt. Smith, 5 Seld., 502.)

It has been held not to be enough that the other provisions of the will will be interfered with, but it must clearly appear that the testator would not have distributed his property in the manner in which it is distributed by the will had he contemplated that the widow could have claimed or been entitled to her dower in addition to the provision in the will.

When a testator makes a provision in his will for his widow, without declaring it to be in lieu of dower, and devises the residue of his property amongst other persons, VOL. XXI.

5

Dodge agt. Dodge.

it would seem to be an indication that he intended the division thus made should not be disturbed by his wife's claiming dower out of the property thus distributed. But such a devise of the residue of the estate, after making provision for the wife, has not been held such conclusive evidence of an intention to put the widow to her election as to induce the courts to compel her to elect. Some more decisive evidence of intention has been required.

It seems to me that when it clearly appears by the will that the testator has distributed the residue of his property, after making provision for his widow, amongst his children or other persons, in such proportion as he considered them entitled to, and that to allow the widow to take both the provision of the will and her dower out of the estate, would defeat or materially lessen the allotments to all or any of the devisees or legatees; that the intention of the testator not to give her both the provision and dower out of his estate, is plainly manifested, and the court should require the widow to elect.

The rule that has heretofore prevailed has in very many cases operated oppressively and unjustly on heirs and legatees, and most frequently in cases where either the dower or the provision of the will was amply sufficient for the wife, while giving her both was ruinous to others entitled under the will.

In this case it seems to me that the provisions of the will in behalf of the children demonstrate that it was not the intention of the testator to give the widow both dower and the provision. If she is entitled to the annuity she takes it without diminution; if she takes dower she is entitled to one-third part of each house and lot on which that annuity is charged. The remaining two-thirds then must have charged upon them the whole of the shares of such lot in payment of the annuity. If one-third of the annuity was extinguished with the assignment of the dower, in the Eleventh street property, there would be less ground of

Dodge agt. Dodge.

complaint. But no such result is attainable. The whole annuity must be paid, and two-thirds of the property charged with it must pay it.

Again: lot number ninety-five West Eleventh street is, by the will, given to a trustee in trust to receive the rents and profits, to be paid over under certain restrictions and limitations to Josiah during his life. It was intended as a provision for the support of himself and family, if he should have one; and if the widow takes dower, one-third of the means of support thus provided is taken away. Was such the intention of the testator? It seems to me not.

The trust created, or intended to be created, by the will for the benefit of Josiah, would be entirely inconsistent with the right of the widow to dower. But it is said that the trust is invalid, and is, therefore, to be considered as if no such provision was contained in the will. I do not agree to the conclusion. The controlling consideration in the construction of the will is the intention of the testator. And if the creation of the trust manifests an intention inconsistent with the right of the wife to the provision and dower, it cannot change the intention, if the trust is subsequently declared illegal and void. The testator deemed it valid when he made it. It was one of the means which he adopted to give effect to his intention, and whether legal or illegal, the intention manifested by the provision should have effect.

Without occupying more time in discussing the question, I must declare my conclusion to be that under the provisions of this will, the widow must be put to her election between the provision of the will and her dower; she cannot have both.

Matter of Dobbs.

NEW YORK SUPERIOR COURT.

In the Matter of WILLIAM H. DоввS, a minor.

It is within the power and the duty of state courts or judges to give a detained party enlisted under the laws of the United States the benefit of a habeas corpus; and upon proper evidence, to discharge him from such enlistment. Although the act of Congress of the United States, of September, 1850, (§ 5,) directs "that it shall be the duty of the secretary of war, to order the discharge of any soldier of the army of the United States, who, at the time of his enlistment was under the age of twenty-one years, upon evidence being produced to him that such enlistment was without the consent of his parent or guardian," it must be considered merely as a concurrent power, conferred upon such officer, with the state courts. (This is adverse to the decision in Phelan's case, 9 Abb. 286.)

The minor must have a parent or guardian whose authority was recognized as valid by the law of the place, who had authority to consent or forbid, and to whom the recruiting officer might have applied within the United States for his assent in writing to the proposed enlistment, to authorize his discharge on that ground.

JONAS B. PHILLIPS, for petitioner.

THEODORE HINSDALE, for United States.

HOFFMAN, Justice. Upon habeas corpus, the return of an officer of the United States army is, that the party detained was enlisted in the army of the United States, on the 28th day of March last, for the period of five years; had received advance, clothing, &c., to the value of $39.

Henry Dobbs, being examined upon this return, deposed that he was the father of the party detained; that his son was a minor, having been born on the 26th of February, 1841; and that he had not given his consent to the enlistment in any form or manner whatever; and also, that he, the father, was a citizen of the United States, domiciled in Newark, New Jersey.

On these grounds the discharge of the party is applied for. Congress has power, under the constitution, to raise and support armies (article 1, § 8, sub. 11,) and "to make rules.

Matter of Dobbs.

for the government and regulation of the land and naval forces" (Id., sub. 13,) and generally "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers."

By the 11th section of the law of Congress of the 16th of March, 1802, (vol. 2, Statutes at Large, p. 134,) entitled "An act fixing the military peace establishment of the United States," after declaring that the recruiting officers should be entitled to receive for every able-bodied citizen who should be enlisted for five years, between the ages of eighteen and thirty-five years, the sum of two dollars, enacted as follows: "Provided, that no person under the age of twenty-one years shall be enlisted by any officer, or hired in the service of the United States, without the consent of the parent, guardian or master first had or obtained, if any he have." It proceeds to impose a penalty for violating this provision.

An act of April 12, 1808, (although considered obsolete, apparently expired by the limitation of the term of service provided in it,) may be usefully referred to. By section five, (2 Statutes at Large, p. 481, 483,) the provisions of the act of 1802, "fixing the military peace establishment of the United States," relating among other things, "to the regu lation and compensation of recruiting officers, age, size, qualifications and bounties of recruits," were applied to all persons and things within the intent and meaning of said act, the same as if they were inserted therein at large."

The act of the 26th June, 1812, (vol. 2, p. 764,) “for the more perfect organization of the army of the United States," is referred to on account of its adoption in the next mentioned act. It does not itself contain anything pertinent to the present question.

By the act of January, 20, 1813, (vol. 2, p. 791,) entitled "An act supplementary to the act for the more perfect organization of the army of the United States," provided, in section five, that the recruiting officer should have a