HERBERT which dower is now claimed, he devised to his sons, & OTHERS and also devised them for payment of his debts. He specifically devised away all his lands.

v. WREN

& OTHERS. In the case of Ambler v. Norton, & Hen. and Mun. 23, the devise was not expressly in lieu of dower, but the fact was collected from the whole context of the will.

s. But if she had a right of dower, the Court had no authority to make a decree for part of the purchase money, without the consent of all parties concerned. 1 Inst. 33.

R. I. TAYLOR, contra,

None of the facts upon which the claim of dower is founded is denied by the answer. The denial of the right is founded on particular facts therein stated.

1. As to the jurisdiction: at the present day Courts of law and equity have a concurrent jurisdiction in dower, if the facts are not denied upon which the claim of dower is founded; such as seizure, &c. In general a Court of Chancery is the proper tribunal. A discovery is almost always sought; partition is frequently required, and an account is generally taken. Comyns Dig. Tit. Chancery, E. Mitford, 109, 129. 1 Fonb. 22. 6 Bac. Ab. 417. 2 Vez. Jr. 122, 124. There is no case in Virginia where the jurisdiction has been denied.

In this case a partition was necessary, and that is a special ground of equitable jurisdiction.

But the property had been sold by order of Court, expressly subject to dower, and the deed to Deane contained a covenant to indemnify him against the claim of dower. A Court of Chancery can call all parties before it, and by decreeing a compensation in lieu of land, prevent circuity of action. The widow and the purchaser had consented to such a decree. An account of rents and profits was also necessary. The act of Congress prohibiting the resort to Chancery where there is a remedy at law, is only an affirmance of a principle of the common law.

บ.

WREN

But it is said that by joining in the lease for 13 years, HERBERT she barred her dower during the lease. This is not so. & OTHERS Her husband still had a free hold of inheritance in the land, and died seized thereof. And the widow is entitled to dower in all lands of which the husband was & OTHERS. seized of the freehold of inheritance during the coverture. 1 Inst. 32. Com. Dig. Tit. Dower, A. 6.`

But the most formidable objection arises upon the devise to her by the will. That devise was not expressly in lieu of dower, nor is there such averment as the state of Virginia requires. There is no averment that she accepted the lands devised in lieu of dower; nor that her husband was seized of such an estate in those lands as would be a bar if she had accepted them.

The decree of the Court was for a sale of the whole real estate of her husband. It does not appear that the land devised to her was not sold as well as the rest. If it was she is not barred of her dower. Co. Lit. 18, (B.) Harg. note. Ridgeway's Rep. tem. Hardwicke, 184. Dormer v. Fortescue. Fonb. 22. 6 Bac. Ab. 417.

But there is an error in favor of the Plaintiff in error, and if the cause should be sent back it ought to be corrected. There was no allowance made for arrearages of rent.

As to the decree for money in lieu of land.” The widow was willing to receive it, and the Defendant, Deane, to pay it. If there had not been a decree for money, Deane would have been obliged to pay the whole purchase money to the trustees and then sue them for a breach of covenant, and recover back in damages the value of the dower to be assessed by a jury. By ascer taining that value in the first instance, this circuity of action and loss of time are prevented. Whether the Court below ought themselves to have fixed the value of the dower, or left it to be ascertained by a master in chancery, or by a jury, we do not pretend to say. We do not wish the decree to be affirmed. We hope the bill will not be dismissed; but sent back with instruc tions to allow us the arrearages of rent with the profits thereon, and that an account be taken accordingly.

HERBERT

& OTHERS

V.

C. LEE, in reply.

The essential point of the case is that she is barred of her dower by her acceptance of a jointure under the & OTHERS. Will. The act of assembly (Rev. Co. 180, § 11) says

WREN

that if any estate be conveyed by deed or will, either expressly, or by averment, in lieu of dower," &c. "such conveyance shall bar her dower of the residue," &c. She has accepted her jointure and resides upon it. All the circumstances of the will show the intent to be in lieu of her dower. By averment, means by allegation and proof dehors the will. 1 Inst. 36, (b) note. Woodeson. Tit. Dower. Hargrave Co. Lit. 36, (b) note, 1 Br. C. C. 292, Pearson v. Pearson.

The Court had no right to decree money in lieu of the land without consent of the creditors.

No arrearages of dower can be recovered for the time preceding the demand.

February 26th....MARSHALL, Ch. J. after stating the case, delivered the opinion of the Court as follows:

The material questions in the cause are:

1. Has a Court of equity jurisdiction in the case? 2. Is the Plaintiff, Susanna, entitled to dower?

3. If these points be in her favor what decree ought the Court to make?

According to the practice which prevails generally in England, Courts of equity and Courts of law exercise a concurrent jurisdiction in assigning dower. Many reasons exist in England in favor of this jurisdiction: one of which is, that partitions are made and accounts are taken in chancery in a manner highly favorable to the great purposes of justice. In this case dower is to be assigned in an undivided third part of an estate, so that it is a case of partition of the original estate as well as of assignment of dower in the part of which Lewis Hipkins died seized.

บ.

WREN

An additional reason and a conclusive one in favor HERBERT of the jurisdiction of a Court of equity is this: The & OTHERS lands are in possession of a purchaser who has not yet paid the purchase money. A Court of law could adjudge to the Plaintiffs only a third part of the land it- & OTHERS, self. Now, if the Plaintiffs be willing to leave the purchaser undisturbed, to affirm the sales and to receive a compensation for her dower instead of the land itself, a Court of equity ought never, by refusing its aid, to drive her into a Court of law and compel her to receive her dower in the lands themselves. This is therefore a proper case for application to a Court of Chancery.

2. It is perfectly clear that the provision made by Lewis Hipkins in his last will is no bar to a claim of dower for several reasons, of which it will be necessary to mention only two.

1. It is not expressed to be made in lieu of dower.

2. It is not averred that she has accepted the provision and still enjoys it.

3. It remains to inquire what decree the Court ought to make in the case.

The first question to be discussed is this: Is the Plaintiff, Susanna, entitled both to dower and to the provision made for her in the will of her late husband?

The law of Virginia has been construed to authorize an averment that the provision in the will is made in lieu of dower, and to support that averment by matter dehors the will. But, with the exception of this allowance to prove the intention of the testator by other testimony than may be collected from the will itself, the act of the Virginia legislature is not understood in any respect to vary the previously existing common law

In the English books there are to be found many decisions in which the widow has been put to her election either to take her dower and relinquish the provision made for her in the will, or to take that provision and relinquish her dower. There are other cases in which VOL VII. 49

HERBERT she has been permitted to hold both. The principle & OTHERS upon which these cases go appears to be this:

v.

WREN It is a maxim in a Court of equity not to permit the & OTHERS. same person to hold under and against a will. If therefore it be manifest, from the face of the will, that the testator did not intend the provision it contains for his widow to be in addition to her dower, but to be in lieu of it; if his intention discovered in other parts of the will must be defeated by the allotment of dower to the widow, she must renounce either her dower, or the benefit she claims under the will. But if the two provisions may stand well together, if it may fairly be presumed that the testator intended the devise or bequest to his wife as additional to her dower, then she may hold both.

The cases of Arnold v. Kempstead and wife, of Villa rael and lord Galway, and of Jones v. Collier and others, reported by Ambler, are all cases in which, upon the principle that has been stated, the widow was put to her election.

In the case under consideration neither party derives any aid from extrinsic circumstances, and therefore the case must depend on the will itself.

The value of the provision made for the wife compared with the whole estate is not in proof: but so far as a judgment on this point can be formed on the evidence furnished by the will itself, it was supposed by him to be as ample as his circumstances would justify.

The only fund provided for the maintenance and education of his five children is the rent of 140l. per annum, payable by P. R. Fendall. Since he has made a distinct provision for his wife, the presumption is much against his intending that this fund should be diminished by being charged with her dewer.

That part of the will, too, which authorizes P. R. Fendall, in the event of building a mill and not receiving from the sons of the testator their half of its value, to hold the premises until the rent should discharge that debt, indicates an intention that in such case the whole rent should be retained.