
    
      George Buist, adm'r. James D. Sommers, vs. Hugh P. Dawes and J. I. Waring, ex'ors. John W. Sommers, and others.
    
    Testator, after disposing specifically of some few articles of insignificant value, gave several small pecuniary legacies, concluding as follows: “ and all the rest of «ara-tes coming to me from the estate of my father, or from any other quarter, I give and bequeath to ” J. S.; there was money, and nothing else, coming to testator from the estate of his father; Held, that the above residuary clause embraced only monies due to testator, and did not embrace a contingent interest in lands and ne-groes.
    Defendant, in whose favor a circuit decree had been pronounced, and from which an appeal was pending, consented that the bill should be amended, so that an objection to the decree, not taken on the circuit, might be considered in the Court of Appeals; the Court of Appeals remanded the case to the Circuit Court, that the matter might first be considered there; Held, that the order remanding the case, virtually opened the circuit decree, and that defendant, on an appeal from the next circuit decree, could not claim the benefit of it as a subsisting decree.
    Wherever two rights are alternatively created, or given, either in express terms, or by construction, the party to whom they are given is entitled to only one of the two, and must elect between them; but after he has made his election he is bound, and will not be allowed to elect again, unless he can shew some equitable circumstances entitling him to retract the choice he has made.
    If the two rights are legal rights, after an election has been made, (and it is sufficient to constitute such an election at law that one has been taken, though it was not taken as an alternative, or by way of choice between the two,) it operates as a complete legal bar by way of estoppel against the claim of the alternative.
    The right to dower and thirds are both legal rights, and the acceptance of one (whether intended as a waiver of the other or not,) is a bar, at law and in equity, to the claim of the other.
    A party will not be allowed to ret/rad an election once made, unless upon grounds of equity shown to exist, by evidence inherent in the circumstances or extrinsic.
    
      In 1819 J. S. died intestate, leaving a widow; at his death he was in possession of an inconsiderable estate, and was considered insolvent, but had a contingent interest in a large estate; in 1820, the widow recovered a sum of money in lieu of dower in a plantation, of which J. S. had been seized; the widow afterwards died, and, in 184.8, the contingent interest of J. S. became vested, — and, on bill for settlement of his estate, the representatives of the widow claimed her distributive share thereof:—
    
      Held, that the acceptance of dower by the widow in 1820, was a bar to the claim.
    
      Held, further, that the representatives of the widow were not entitled to retract the election made in 1820, and take her distributive share, — making compensation for the dower received.
    
      Before Dunkin, Oh., at Charleston, June, 1850.
    For a full understanding of this case, as now reported, reference must he had to the first decision in the case, as reported 4 Strob.Eq.'37.
    Dunkin, Ch. It has been heretofore adjudged, that on the demise of John W. Sommers, in January, 1848, without issue ‘living at his death, the complainant, as the legal representative of James D. Sommers, deceased, was entitled to the personal property which passed under Edward Tonge’s will. It was also in proof, that at the death of James D. Sommers, in 1817, intestate, his estate, under the Act of 1791, was distributable as follows, viz : one moiety to his widow, Susan B. Sommers, and the other moiety equally between his brother, John W. Sommers, and his sisters, Henrietta Rowand and Mary Buist.
    Thomas R. Waring, one of the defendants, is the administrator of Susan B. Sommers, afterwards Susan B. McDow, deceased. The circuit decree had directed a distribution of the personal estate among such persons as answered the description of dis-tributees of James D. Sommers, ac the time of his death, or their legal representatives. This established or declared the right of Thomas R. Waring, as administrator, to one moiety of the estate.
    Subsequently an amended bill was filed, by consent, in which it was suggested, that the legal representative of Mrs. McDow, formerly the widow of James D. Sommers, was not entitled to any portion of this property, inasmuch as she had claimed and had been allowed her dower in his real estate. Upon the death of her husband, a widow is entitled either to claim her common law right of dower, or to take the provision made for her in lieu of dower, by his will, if he died testate, or the share allotted to her by the Act of 1791, if he died intestate. In either case, the widow has her election. She is entitled to a full knowledge of the condition of the estate before she shall be required to elect. And so liberal has been the construction of the Court, that, in a case of peculiar circumstances arising on the Duke of Montague’s will, the House of Lords decided that this right of election lasted fifty years. Beaulieu vs. Cardigan, (6 Bro. P. C. 232.) Although a party has actually made an election, yet if the choice has been made in ignorance of the real state of this funds or under a misconception of the extent of the fjj him, such election shall not be conclusive on * Eq. $ 1098.)
    The Act of 1791 expressly declares, that thajrpwtwjg made for the widow, shall, if accepted by herJbefrcgj; in lieu of, and in bar of, dower. (5 Stat. 163.)'\fllr!^ acting on its own principles, would not permit a w both dower and thirds in the same estate. She is in the same situation as if her husband had executed a will making provision for her, but expressly in lieu and bar of dower. She is,, in both cases, put to her election. Nor is a widow in a different situation from any other person preferring inconsistent claims. Any party, deriving title under a deed or will, must conform to its provisions, and renounce every right inconsistent with it. The question has been sometimes discussed, whether this doctrine'of election implied forfeiture, or only compensation. In the language of Mr. Justice Story, “ Whether a devisee, electing against the will, thereby forfeits the whole of the benefit proposed to him, or so much only as is requisite to compensate, by an equivalent, those claimants whom he had disappointed.” The learned commentator concludes the better authority, and more in conformity with the general principles of equity, to be that “ there is not in such case an absolute forfeiture ; but there is a duty of compensation, (at least where the case admits of compensation,) or its equivalent.” (2 Story’s Eq., § 1085.)
    It is not doubted that an election may be determined by matter in pais, as well as by matter of record. But it is not always enough to conclude a party, that he has heretofore established a right inconsistent with the principles on which he now claims. It must appear that the act was done eo intuitu. “ An election can only be determined by plain and unequivocal acts, under a full knowledge of all the circumstances, and of the party’s rights.” White’s Lead. Oases in Chancery, 289. In Driscoll vs. Koger, (2 Des. 299,) Chancellor Rutledge declared, in relation to this doctrine of election, that the Court was not inclined to deprive a woman of her legal rights, unless it should be made to appear, that the acts done by her were done “ with a perfect cognizance of all her rights.”
    The léading case on the question of election is Dillon vs. Parker, (1 Swanst. 359,) heard by Sir Thomas Plumer, Master of the Rolls. In that case it was urged for the plaintiff, that Sir Henry John Parker was in his lifetime bound to elect, and that having accepted property under his son’s will, this determined his election, and that the defendant claiming under Sir Henry, was bound to conform to all the provisions of his son’s will. It had been submitted by Sir Samuel Romilly, in behalf of the defendant, “ that the Court must be satisfied that Sir Henry was apprised of the obligation to elect, and of the value of his different rights.” The Court say, “ The point made by the plaintiff is, that acceptance binds and operates forfeiture without reference to intent. It is said that Sir Henry accepting his son’s gift, by that act renounced his own estate ; that is not election, but forfeiture. If such is the effect of acceptance, even though in ignorance that it was not competent to the 'party to retain both benefits, but that, on taking one, the consequence of .law was that he renounced the other, then, by inadvertence, without choice, an estate may be lost. But, in all cases of election, the Court is anxious, while it enforces the rule of equity, -that the party shall not avail himself of both his claims, still to secure to him the option of either; not to hold him concluded by equivocal acts, performed perhaps in ignorance of the value of the funds ; a principle strongly illustrated by the decision in Wake vs. Wake. The rule of the Court is not forfeiture, but election : utrum horum.”
    
    
      Wake vs. Wake is reported 1 Yes. Jr. 335, and was heard by Mr. Justice Buller, sitting for the Lord Chancellor. A widow had, under her husband’s will, a legacy of £120, and an annuity of £35. She had been paid her legacy, and had received also the annuity for three years. At the expiration of that time, she filed a. bill praying for dower out of her husband’s real estate, as well as the provision made for her by the will. The devisee of the real estate was a son by a former marriage, and was in possession under the will. It was held to constitute a case of election. And it was then insisted on the part of the defendant, that the widow had determined her election, by acceptance of the provisions made by the will. But Mr. Justice Buller overruled the objection. “The point is,” says he, “whether she had full knowledge of the circumstances, and of her own rights. If she acted with full knowledge, she should not afterwards deny it.” The claim of dower wás sustained, but the widow was held accountable for the legacy, and what she had received on the annuity. A note to this case refers to ButricJce vs. Broadhurst, (id 171.) That was very analogous, in some of its circumstances, to our own case of Wilson vs. Hayne, (Cheves Eq. 37.) A widow had enjoyed the provisions made by her husband’s will for five years, and then brought a suit, praying to be permitted to take an interest in a trust fund of £2000 under her marriage settlement, instead of the estate under the will. Lord Thurlow dismissed the bill, but he desired it to be understood, that it was under the particular circumstance that the plaintiff had stated no ground, no ignorance of the state of the property, &c., but on the contrary, it appeared that the fund was a free fund from the beginning ; and that there was no suggestion that the estate was in such a situation as to render it doubtful what the result would be.
    
      A careful review of all the cases makes manifest what Sir Thomas Plumer terms, “ the anxious desire of the Court, while it enforces the rule of equity, that the party shall not avail himself of both his claims, still to secure to him the option of either.”
    Although the statute declares, that the provision therein made for the widow, shall, if accepted, be in lieu and bar of- dower, yet the correlative proposition is not put. Nor was it necessary. It stands upon the acknowledged principles of this Court. A party claiming dower would thereby disturb the arrangement of the statute, and quoad hoc, frustrate its provisions. Equity will not permit this, but will put the party to her election. But the Court favors the right to make an election, and will not permit acts done in ignorance of a party’s rights, to preclude him from this privilege. In this Court, neither the doctrine of estoppels, nor that of forfeiture, is encouraged. Originally the widow of J. D. Sommers had the legal right to one-half of his personalty. It has been so declared by the decree of the circuit Court. The plaintiff seeks to deprive her administrator of this legal right, or to shew that it does not exist in him. Then, says the authority of Dillon vs. Parker, p. 385, he is bound to make out his case, to establish that the alternative was fairly and fully presented to her, and that she made her election. “ The argument,” says the Master of the Rolls, “ which represents lapse of time and acts performed as conclusive, without regard to intent, is subject to great difficulties.”
    James D. Sommers died in 1817. Sometime afterwards his widow intermarried with William McDow. Joseph Clarke was a witness, and his testimony is in writing. He states that he was the confidential adviser of Mr. McDow, and had always been so: that he advised him to institute proceedings for his wife’s dower, simply because the late James D. Sommers was considered to be insolvent; that he knew of no real estate which he left, except a place on the Jacksonborough road; that he received his instructions from Mr. McDow, and does not now remember to have had any conversation with Mrs. McDow on the subject. Proceedings were made up in 3 820, in the name of McDow and wife, against the heirs of James D. Sommers, deceased. The dower was assessed at four hundred and sixty dollars, and the land sold to pay the assessment. The witness says that he advised the proceedings, because, although the value and amount of the dower was small, still “ it was something to persons in the situation of McDow and wife. The claim was made and established upon his advice to Mr. McDow, for the above reason. Witness had no knowledge of any rights or contingent claims, which they, or either of them, had, or could have, under the will of Edward Tonge, and he does not believe that either the said William McDow, or Susan B., his wife, had any knowledge or imagination even of any rights under Edward Tonge’s will. It seemed to be a set down matter,” adds the witness, “ not only in the family, but generally, that, after the death of the late Mrs. Tonge, the estate covered by said will, would go to and vest in the late John W. Sommers absolutely.” In a previous answer, this witness says he did not personally know whether the late William McDow, or his wife, the late Susan B., were familiar with, or apprized of, the will of the late Edward Tonge. “ I was quite intimate with them,” continues the witness, “ and can say that neither of them, to my recollection, ever spoke to me of their rights under said will, as representatives of James D. Sommers. It is evident to my mind, that they were not aware of any rights under Tonge’s will, as representatives of James D. Sommers, for, if so, Mr. McDow would doubtless have consulted me as to those rights, it having been his uniform habit to consult me upon whatever was of material interest to him.”
    The proceedings in dower, to which Mr. Clarke refers, were also put in evidence. Some objections were urged to the irregularity of these proceedings; but this Court is of opinion, that none of these objections are sufficient to invalidate the judgment, or impair its legal efficacy. Assuming Mrs. McDow to have been a party, the regularity of the judgment cannot be impeached here and in this form, and although the inference from the testimony is very strong, that she, in fact, knew nothing whatever of the proceedings, yet, such has been the practice of the Court, that for the security of titles, this Court must conclude that she was sufficiently made a party.
    The decree of the circuit Court has settled, that James D. Sommers had, at his death, a contingent title to about one hundred and thirty negroes, under Tonge’s will. Whether he had, or had not, an equal interest in the real estate, is a question yet to be adjudicated by the Court of Errors. In reference to the personalty, the Chancellor held, that “ James D. Sommers, if now living, would be the person who would be entitled to take,” and decreed, that “ distribution be made of the personal property, which is hereby adjudged to be the estate of the said James D. Sommers, among those persons parties to this bill, who represent the character of distributees, at Ih'e time of his death, or his, or her, legal representatives.” James D. Sommers’s widow represented the character of a distributee at the time of his death, and her legal representative was a party to the proceedings before the Court. The amended bill sought to displace the legal representative of this distributee, from any right under the decree, or any share in the distribution, on the ground that the proceedings of 1820 constituted an election, which was irrevocable, and which “ forever barred and precluded the said Susan B. Sommers, afterwards McDow, from all claim to any further distribution, or other share or interest in the estate of which James D. Sommers died intestate, and, consequently, in the said James D. Sommers’s contingent interests in the real and personal estate under the will of the said Edward Tonge.”
    The doctrine seems to be well condensed by Judge Johnson, in Pinckney vs. Pinckney, (2 Rich. Eq. 237.) “ The term election, imports, of itself, á right to choose between one and another, or more things ; and it is impossible to exercise that right understandingly, unless the party is fully informed of their relative value, for without it, his judgment, or will, or even his caprice, could not enter into the act of choosing. Hence the well settled rule, that he is not bound to elect, until all the circumstances necessary to enable him to make a deliberate and discriminating choice, are ascertained ; and if he even make an election -without it, he is not bound by it.” The authority to which he refers, fully sustains the position ; and it is in entire accordance with the general principles of this Court in administering equity. If the act insisted on, was not done under circumstances which enabled the party to exercise the right of election understandingly, if he was not so'informed of the relative value, as to enable him to determine utrum horum, to choose between one or the other, the party is not concluded by such act. It is not to be supposed that the widow of James D. Sommers should be informed of the exact value of the Tonge estate. But had she any knowledge whatever of the rights of her deceased husband, whatever they might be, under Edward Tonge’s will 1 'Now if she was informed of those rights, and weighing the relative value of what was before her, it might with justice be said, that she had made her election. The evidence is as direct and positive as can well be adduced, that she had not “ even an imagination” of any rights of her husband under Tonge’s will. There is no proof whatever, that she knew of the existence of that instrument. And Mr. Clarke distinctly testifies, that the expediency of instituting the proceedings in dower, was determined without any reference to any supposed rights of James D. Sommers under Tonge’s will. They were instituted on his advice, and “ I had,” says he, “ no knowledge of any rights, or contingent claims, which they, or either of them, had, or could have, under the will of Edward Tonge.” If the widow of Jas. D. Sommers were now alive, might she not say, and has she not proved, “ I took my dower in total ignorance of any rights of my deceased husband under Tonge’s will. I made no election in reference to that of which I had no knowledge, and I ask now to be permitted to do what I have never yet done.”
    But there is much latitude permitted on this subject; and it arises not only from the unwillingness of this Court to enforce any thing like a forfeiture, but also to protect a party from the consequences of a premature or injudicious choice, or acts which might be construed an election. “ The cases have gone so far,” says the Chancellor, in Hall vs. Hall, (2 McC. Ch.269,280,) “that after the wife has made her election, and has received benefits under the will, she has been allowed to retract and resort to her legal rights, when the estate has turned out differently from what it was believed and stated to be at the time of the election prematurely made.” Kidney vs. Coussmalcer, (12 Ves. 135,) was a very strong case. It was decided by Sir William Grant, in 1806. The will had been twice before the Court for adjudication, — in 1792, before Lord Thurlow, and in 1793, before Lord Rosselyn. In the original causes, an arrangement had been made, and the widow had deliberately elected to take the estate devised by the will, in satisfaction of her dower. Subsequent events caused the creditors of the husband to prefer a claim to a portion of the estate so devised, and, in his decree 'of 1806, this claim was sustained by Sir William Grant. “ The consequence is only,” says he, “ that the widow will not be bound by any election she then made ; she must be let in now to any of her legal rights : and an enquiry in what estates she was entitled in dower and free bench ; her election as being made under a mistaken impression, that the creditors were not to make any claim upon those estates, not binding her.” So in Adsit vs. Ad-sit, (2 Johns. Ch. 451,) Chancellor Kent refers to the principle familiarly. “ If the legacy is to be taken in lieu of dower, I should think that the defendant is entitled to her election, notwitstand-ing her acceptance of the legacy, for it is evident that she did not, in that case, act with a proper understanding of the consequence of that accptance, but was under mistaken impressions.” This indulgence of the Court, (if it may be so termed,) confers no new rights. It only remits the party to an election between two acknowledged rights. In some cases, the Court has disturbed a possession in order to aid a suitor claiming the right of election. But in the case before the Court, no possession is sought to be disturbed. No one is required to surrender property which they have held under the impression or confidence, that the widow’s claim was barred by the proceedings of 1820. So soon as the right of James D. Sommers, or his representatives, became vested by the death of John W. Sommers, in 1848, the interests of the parties were submitted to the adjudication of the proper tribunal, and the representative of the widow James D. Sommers was declared entitled to a moiety of the estate. It is objected, that the other distributees of James D. Sommers were parties to the proceedings in dower, and consented to the ad-measurement of dower. It is not apparent to the Court that they were in any manner prejudiced by that consent. But in any view, the language of Lord Redesdale. in Moore vs. Butler, (2 Sch. and Lef. 268,) breathes the spirit by which this Court is governed. “ It is contended,” says he, “ that James Butler, (under whom the parties claimed,) did elect to take under the settlement of 1720. But the facts on which this is contended are so extremely various, that it would have been impossible to hold him bound, if he could have put the parties affected by that claim into the condition in which they would have been, if he had not done those acts.” And so in Dillon vs. Parker, (385,) the Master of the Rolls states the disposition of the Court, even in a case where the party himself had accepted benefits under the instrument which imposes the obligation of election, if the representatives of the party, who has accepted these benefits, without explicitly electing, “ can offer compensation, and place the other party in the same condition as if those benefits had not been accepted, they may renounce them and elect for themselves.” In Wake vs. Wake, the widow was required to account for the legacy which she had received. In this case, the Court is of opinion, that the representative of James D. Som-mers, deceased, is entitled to the share of the personal estate to which his intestate was declared entitled by the circuit decree of Chancellor Dargan, but that he must account for the sum assessed in lieu of dower, with interest thereon, as part of the estate of James D. Sommers, deceased.
    The other question, which it becomes necessary to consider, arises under the will of Charles Elliott Rowand, the younger. His mother, Mrs. Henrietta Rowand, was a sister of James D. Sommers, and died intestate, and a widow, in April, 1838. Charles E. Rowand, Jr., her son, died in January, 1839. The residuary clause of his will is as follows, viz: “ All the rest of moneys coming to me from the estate of my father, or from any quarter, I give and bequeath to my brother Robert Rowand’s family, for their use and support.”
    It is a familiar rule, that a will of personalty speaks at the death of the testator. And it is well settled, that the Court is permitted to resort to extrinsic evidence for the purpose of ascertaining whether there is anything, and what, to which the terms of the will apply. At the death of Charles E. Rowand, Jr., his uncle, John W. Sommers, was alive, and survived for nine years afterwards. Do the terms, “ all the rest of the moneys coming to me from any quarter,” embrace the contingent inierest of the testator, as one of the distributees of his mother, who had been a distributee of James D. Sommers, deceased ? The term “ moneys ” is generally applicable to particular species of personalty. But there are cases in which, by force of the context, a more extended signification has been given to it. It has been held to embrace stocks, promissory notes, &c. But without some explanatory context, the term must be confined to its proper signification. (1 Jarman, 702; Gosden vs. Dotterell, 6 Cond. E. C. R. 496.) In Man vs. Man, (1 Johns. Ch., 235,) Chancellor Kent says, “ if the testator uses the word (moneys) absolutely, without any accompanying qualification, it cannot be construed beyond its usual and legal signification, without destroying all certainty and precision in language, and involving the meaning of the will in great uncertainty. The difficulty would be to know what precise check to give to the force of the term, after we have once moved it from its seat; vires acquirit cundo? But in this will the testator has used a qualification, the effect of which is rather to restrict the term to its original and proper signification. The expression is, “ moneys coming to me from the estate of my father, or ftom any quarter.” Moneys coming to me, means money due and owing to me, “ money to which I have a right and ought to receive.” At the death of the testator in January, 1839, could these terms be applied to the interest, ■whatever it might be, in the lands and negroes at Tongeville ? In Gosden vs. Dotterell, the vice Chancellor refused to enlarge the meaning of the term, although by so doing, he was satisfied he would effectuate the intention of the testator. But in this case the Court is convinced, from the terms used, that the testator here intended only what the law implies; and that, as to this interest, Chas. E. Rowand, Jr., died intestate.
    It is ordered and decreed, that distribution be made of the personal estate, adjudged to be the estate of James D. Sommers, deceased, upon the principles declared in this decree. Parties being at liberty to apply for such further orders as maybe necessary.
    From this decree an appeal was taken, on the grounds :
    1. That McDow and wife having elected to take, and having actually taken in money, Mrs. McDow’s dower in the estate of her first husband, James D. Sommers, both her and his representatives are bound by that election, and are debarred by the attachment of Mr. McDow’s marital rights, by lapse of time, and otherwise by law, from now recalling the same.
    2. That the residuary clause in the will of Chs. E. Rowand, the younger, extends to and embraces the interest of the said Chs. E. Rowand, the younger, in the Tongeville property, real and personal.
    
      Yeadon, Petigru, for appellants.
    
      Munro, contra.
   Johnston, Ch.,

delivered the opinion of the Court.

Little need be added to what the Chancellor has said, in his decree, in relation to the construction of the (so called) residuary clause of Charles E. Rowand’s will.

This testator was entitled, under his father’s will, to the annual interest, for life, of one-tenth part of a certain portion of the father’s estate, which, under the directions of the will, was sold, and the proceeds vested for his benefit. And besides what arrearages of this provision might be due him, at his death, there was nothing coming to him from his father’s estate. So that this money, and what little might be, accidentally, due to him from other quarters, was all the money he had to dispose of. ■

Accordingly we find that the specific sums, disposed of by him in his will, amounted, in the whole, to only the sum of $300: and even these small legacies were given with expressions of distrust whether there would be money enough to satisfy them.

In his 'will, after disposing specifically of some few articles of insignificant value: he proceeds as follows :

“ I leave Rev’d. Arthur Buist the sum of $200, should there he a sufficiency, after some or all my debts are paid.
“ Should there, also, be a sufficiency, I leave to the Ladies Benevolent Society the sum of $50, to be paid them by my executor.
“ I leave to my nephew, O. E. Rowand Drayton, $50; and all the rest of monies coming to me from the estate of ,my father, or from any other quarter, I give and bequeath to my brother Robert Rowand’s family, for their use and support.”

The word monies, must be understood here in its ordinary meaning, , of cash, coin, bank notes, or other circulating medium, unless there is something in the context of the will, or in the existing circumstances, to shew that it was employed in a different sense. .

In looking to the extrinsic circumstances, we should not be justified in applying the word used by the testator to any thing but money, unless in that survey we discovered that there was no money, to come to the testator from his father’s estate, but that something else was coming from that estate to which the term money might be applied, in a secondary, or less obvious sense.

But, when we discover that money was coming to him, and nothing else, we are obliged to say that the reference of the testator, was to money, and to nothing else.

Neither does the context of the will lead to any other conclusion.

The clauses immediately preceding the clause in question relate to money: or bequests of money: — and it is obviously of importance, that from these, he proceeds immediately to dispose of the rest of the monies due him. The word rest here undoubtedly refers to the rest of that subject, which he was engaged in disposing of at the time. The interpretation of the word (rest) by the connection in which it is used, is a rule of interpretation familiar to the profession: and so far has it been carried that, in some instances, where the residuary words were descriptive not only of the subjects embraced in the prior clauses, but had a general meaning taking in other species of property, they have been restricted, by the connexion, to property of a like description with that previously disposed of. Thus, where the residuary words would, in themselves, have extended to realty, as well as personalty, they have been so restricted as to indicate only the rest of personalty, because the prior dispositions were of personalty onIy.

This doctrine has, undoubtedly, been stretched beyond the limits of good sense in some of the cases. But it is founded in good sense, and is conformable to the usages of mankind : and it is presumed that no man, speaking in the ordinary way of the distribution of certain portions of money, thus and thus, and the rest so and so, would ever be understood as meaning by this rest any thing else than the rest of that of which he had been, speaking; i. e. the rest of his money. How much stronger the evidence of his meaning, when, as in this case, he expressly characterises the residue as money!

This Court, therefore, concurs in that part of the decree which relates to this subject; and it is ordered that the same be affirmed, and the appeal dismissed.

Another part of the decree is, in our view, more doubtful. It is that part of it which establishes a right of election between the dower awarded to the widow of James D. Sommers, in her life time, and a distributive part of his estate, which is now claimed in its place.

By the will of Edward Tonge, who died in 1-809, his estate, real and personal, was given to his wife, during widowhood;— remainder, for life, to his mother; — remainder, for life, to James B. Perry; — remainder to such of his issue as should survive him: — in default of such issue, to John W. Sommers, with like limitations ; — and in default of issue surviving Mm, — then over, in fee, to James D. Sommers.

The widow of Tonge forfeited her estate by marriage. The mother took possession and enjoyed the property until her death; upon which it devolved on J. B. Perry.

While he was yet alive, James D. Sommers died, (about 1819,) leaving a wife, — who, in the latter part of that year, intermarried with McDow.

Then, in 1821, or 1822, James B. Perry died without issue.

Thereupon, John W. Sommers took possession and enjoyed the property until 1848 ; when he died without issue.

It was held by Chancellor Dargan that the personal property covered by the will of Tonge, passed over, upon the death of John W. Sommers, to the estate of James D. Sommers; and he having died intestate, was distributable among his distributees, of whom his wife, (afterwards Mrs. McDow,) was one.

But, as far back as 1820, it appears that she and her second husband, McDow, brought suit against the other distributees of James D. Sommers, and recovered about $400, as a commutation for her dower in James D. Sommers’s real estate called Golden Grove ; the execution for which was levied on Golden Grove; and that tract, (which was all that existed or remained of James D. Sommers’s real estate, at the time) was sold and conveyed by the sheriff to McDow, at a sum approximating, but somewhat less than the dower assessed. _ This sale and conveyance took place in December, 1820.

Mrs. McDow lived until somewhere about 1831, and Mr. Mc-Dow somewhat longer: but no movement was made by them, or either of them, or the heirs or representatives of either, towards claiming any further interests in James D. Sommers’s estate until after John W. Sommers’s death; which took place, as has been stated, in 1848.

When Chancellor Dargan delivered his decree, of which I have spoken, (adjudging distribution,) the fact of this allotment or assignment of dower did not appear in the pleadings, and was not brought to his view. After the decree was pronounced, but before it came before the Appeal Court, this feet was suggested on the record, by way of amendment to the bill: and the parties proceeded to argue, and did argue, the question in the Appeal Court, (Jan. 1850,) whether the allowance of dower was a bar to the thirds claimed for Mrs. McDow, or whether an election between the dower and the thirds should still be allowed. As that question had not been heard on the circuit, the Court could not determine it in appeal; and, therefore, remanded the cause to the circuit, that it might be heard and determined there ; thus opening the circuit decree upon that point.

In the decree now under review, Chancellor Dunkin has entitled the heirs and representatives of Mrs. McDow, and of Mr. McDow, (one of the distributees,) to claim the thirds, in her right, out of the estate which fell in upon John W. Sommers’s death, provided they repay the sum received in 1820, in lieu of her dower, with interest.

And this is an appeal, by all parties, from his decision.

It may be proper, before proceeding to the questions made by the grounds of appeal, to dispose of a point which was obscurely intimated after the argument was closed.

It is that the parties claiming Mrs. McDow’s thirds are entitled to the benefit of Chancellor Dargan’s decree; that it is to be regarded as still subsisting and unopened, unless the other side shew grounds of equity for setting it aside.

I can only say that the amendment of the record was made by consent, to come up with Chancellor Dargan’s decree, as if the decree had been made upon the record as amended; and the parties must take the consequences.

It was made with the express view of submitting the question to the Appeal Court, whether the assessment and assignment of dower were not a bar, in this Court to the claim of thirds, and whether, under the circumstances, the parties making the claim might not retract, and make an election now,

It was so argued, in Appeal, in 1850; and the order remanding the cause was made with a view to the discussion and decision of that question.

It was so argued here, on this appeal; and never, until after the case was closed was any intimation given to the contrary. Indeed, I hardly understand, now, whether the point is intended to he made.

But if it is, there is nothing in it.

There is no doubt whatever that the acceptance of dower, whether intended as a waiver of thirds, or not, is a bar, at law, and in equity, to the claim of thirds. It is made so by the necessary construction of the statute of 1791; a construction which has been adopted in many cases.

Can it be doubted, then, that, when the fact is proved that dower has been accepted, the party accepting it is not equitably entitled to retain a decree for its equivalent ? I do not mean when this proof is made collaterally, in a different suit, as in McDowall vs. McDowall ; but when, as in this case, it is made in the same cause, and made by consent with the express view of testing the correctness of a part of the decree in the case.

Can any one affirm, that if Mrs. McDow’s acceptance was intended to have been in lieu of thirds, she could equitably insist on the decree obtained for the thirds, while the case is still pending, and the question open, by consent, and before the Court 1

It is impossible. The dower being accepted, is, — so long as the dowress is not allowed to retract, — a complete bar: — and, therefore, a decree for thirds is inequitable and should not be allowed to stand, when the Court retains a control over the subject. But the truth is the decree referred to in this case was virtually opened by this Court in 1850.

The case was presented and argued in appeal, in 1850, as if the amendment had been in before Chancellor Dargan’s decree, and interposed by way of objection to his making the decree he did : — as if he had overruled the objection. This was the light in which this Court viewed the objection : and it sent the case back, only because he had not, in fact, heard and overruled it. How, then, can it be said that the case was sent back subject to the decree: when plainly it was sent back to ascertain whether such a decree should ever have been made ?

If I am right in this, then, upon the merits the only equity of the parties in possession of the dower, must consist in a right to retract and elect, if such right can be shewn.

This was the view taken by the Chancellor, as appears by the whole tenor of his decree. It is the correct view; and, if the claimants are not entitled to the election he has given them, they must abide by the dower as assessed and accepted.

It has been attempted to be shewn in the argument, that the proceedings at law, by which the dower was allotted, are null and void, in consequence of defects in the record; and that, therefore, the amount received under the recovery is no satisfaction of the right of dower; and consequently dower has not been received or accepted.

If the record were void, it would by no means follow that the sum of money recovered as a compensation for dower, though received under it, was no satisfaction of the dower, and equivalent to a reception of the dower, itself. But the defects pointed out do not vitiate the judgment. We are not to look behind the judgment for the purpose of ascertaining whether Mrs. Me-Dow was or was not before the Court, in virtue of a power of attorney executed by her as authorised by the statute. It was the business of the Court, before which the cause was heard, to see that the parties were before it, and after it has given judgment, we are bound to presume that it had proper evidence of the fact, before it took jurisdiction. Miserable would be the condition of the community, if a doctrine should receive the least countenance, by which solemn judgments would be converted into absolute nullities, merely because the writ, or the warrant of attorney, which led to them, may have been mislaid or may have perished from lapse of time.

Neither can the form of the judgment vitiate it. The Court had jurisdiction of the subject matter, and must determine for itself, (for it was a part of its judicial functions in the case,) what judgment was proper to he given between the parties before it.

These principles are too well settled to require further consideration.

Then, the important question, which was considered in the decree, occurs: — whether Mrs. McDow’s acceptance of the dower precluded the claim for thirds now set up; and whether, a retraction will be allowed, and a right of election given.

Wherever two rights are alternatively created, or given, either in express terms or by construction, the party to whom they are given is entitled to only one of the two, and must elect between them: hut after he has made his election, he is bound; and will not be allowed to elect, again, unless he can shew some equitable circumstances entitling him to retract the choice he has made.

There is some difference, in this matter of election, owing to the quality of the rights, among which, the election is to be made : — i. e. whether they are legal or equitable.

If the alternative rights are legal, that is to say, if both of them purport to vest a legal title in the party to whom they are given: — though a court of law could not compel an election, while the matter may have remained executory, yet after an election has been made (and it is sufficient, to constitute such an election at law, that one has been taken, — though it was not taken as an alternative, or by way of choice between the two): — it operates as a complete legal bar, by way of estoppel, against the claim of the alternative. The title to that, though it was before a complete legal title, is extinguished.

Thus, under the statute of uses, uses which would have been executed in the husband to the extent of creating a title to dower in the wife, are prevented from being executed to that extent, by the proviso that the dower shall not be claimed if a jointure was settled on her. In such case the acceptance of the jointure is a bar of the dower, and vice versa. The acceptance of the one is a satisfaction of the other, and the legal right or title to that other is extinguished.

So here: the right to dower, or thirds, is made convertible by the statute of 1791: and both being legal rights proceeding to the wife, if she takes one, her legal right to the other perishes.

It is unnecessary, therefore, to go into an examination of the argument, at bar, in relation to rights of an equitable character, or in relation to elections expressly created by the instrument, or implied by equity in promotion of the evident intention; or in relation to the different degrees of evidence required to prove that an election has been made in the one case or the other.

I take it that whenever an election has been made, either at law or in equity, it is a satisfaction of the alternative right: and that the party will not be allowed to retract, unless upon grounds of equity, shewn to exist, by evidence inherent in the circumstances, or extrinsic.

I will assume that equity has a right to put out of the way the legal consequences of Mrs. McDow’s acceptance of dower: the question is whether she herself, if now alive, would be allowed, under the circumstances of this case, to retract what she has done, and to elect between her dower and thirds.

This is not a case where an election remains to be made. The right is not executory, but executed.

It is not a case, even, where dower was taken, irrespective of the alternative right. It is not a case of mere estoppel, but a positive election, intentionally made. Clarke’s testimony shews that the attention of the parties was drawn to the alternative of choosing between dower and thirds in James D. Sommers’s estate : and that the former was chosen under his advice, as the more valuable of the two.

It is true that the value of the expectancies dependant upon the deaths of James B. Perry and John W. Sommers and then-issue may not have been estimated on that occasion. But it is probable that the circumstances upon which that contingent right depended were known; because Clarke speaks of opinions as “ set down opinions, in the family” which could only have sprung from a knowledge of the provisions of Tonge’s will.

But a choice made. upon a view of interests as contingent, and which were in fact contingent at the time of the choice, is a deliberate choice, — a well understood act, — a fair exercise of the judgment: — and a subsequent result of the contingency, which, if foreseen, would have led to a different choice, — forms no ground for another election.

It may be affirmed, without hesitation, that Mrs. McDow was right in the choice she made, supposing that she took a deliberate view of the expectancy, and the contingencies upon which it was to depend. Her election was made in 1820; at which time two life estates, of young men, interposed before her husband’s expectancy: and not only so, but the expectancy was liable to be entirely defeated by either of those two leaving issue.

Such an expectancy could have had no marketable value at the time she was called upon to elect between it and her dowé'r: and if she had chosen to abide by the expectancy, she could not have sold it and must have starved herself to enrich her heirs. Would that have been the exercise of a sound election on her part 1 If the Court were to grant her if now living, a second choice, it must be upon the principle that her first choice was,— at the time it was made, — improvident and mistaken: and I repeat the question : — Was it unwise, improvident, or mistaken ?

But, if a right of election can be revived, the claim must be made within reasonable time. Here thirty years have expired; during all which time there was a perfect acquiescence. Lord Hardwicke observes in Pawlet vs. Delaval, that “facts and acquiescence are material to determine great rights and properties ; and many decrees have been made thereupon in this - Court: ”and we see how far our own Courts have gone upon this subject in the cases of Wilson vs. Hayne, (Chev. Eq. 37) and Caston vs. Caston, (2 Rich. Eq. 1) where elections were held to be conclusive upon a much shorter lapse of time.

Suppose, however, that Mrs. McDow could insist upon a retraction of her acts; — can her heirs and representatives claim the same rights 1

As a general rule privies in the post are bound by all the acts and engagements of those under whom they claim ; and if the latter rested satisfied with their transactions, and died without seeking to unravel them, their privies are concluded.

In Stratford vs. Powell, Lord Ch. Manners said: “The utmost I could have done if I had any doubt upon this part of the case,” (a question of election, the electing party being dead after having elected) “ would have been to refer it to the master, to ascertain what was most for her advantage: — though I never heard of that being done after the death of the wife, or of the party bound to elect: Here the act and acquiescence of Lady Aldborough are sufficient to bind her and those deriving from her.”

In Archer vs. Pope, Lord Hardwicke expressed the opinion that “if a freeman of London make a will contrary to the custom, and dies, though the wife is not perhaps executrix ; nor does so strong an act as is done here, by her proving the will, but has acted in this manner, without declaring one way or the other ; the Court will not suffer the representative of the wife to insist on the custom, in contradiction to what was done by herand that in cases where, if the wife had been before the Court, she might have had an election; therefore, if she has done it, for a short time only, that acquiescence shall hind her and her representatives: — and it would be very mischievous if the Court should suffer her representatives to take it up in prejudice of the children.”

He expressed the same opinion in a number of the reported cases: so that it was well considered and settled in his mind.

Upon what principle can it be maintained in this case, that the privies of Mrs. McDow are entitled to be let in to elect, unless it be that her election when made was unwise and to her disadvantage?’ We have seen that it was not so. The privies come in here to elect, upon a contemplation of their own interests, as they now stand, and not upon a contemplation of her interests as they stood at the time she made her election. But it is her election, and not that of her representatives, which is sought to be set aside: and the true question is whether the election made by her, with whom the right of election was, was beneficial and satisfactory to her, whether it be otherwise to her representatives or not.

Being upon the whole, of opinion that no new election should have been allowed we are, of course, of opinion that the compensation which was given as a condition of allowing it, should not have been decreed. Indeed the parties to whom the compensation should have been made, were the creditors of James D. Sommers and not his heirs.

It is ordered that so much of Chancellor Dunkin’s decree as gives a right to elect thirds, and decrees compensation for the dower; and also (out of caution) that so much of Chancellor Dargan’s decree as allowed Mrs. McDow, her representatives and distributees, to come in for. a distributive share of James D. Sommers’s estate, be reversed.

Dargan and Wardlaw, CC. concurred.

Decree reversed. 
      
      
         Haynsworth vs. Cox, Harp. Eq. 121.
     
      
      
        Marchant vs. Twisden, Grilb. Eq. Ca. 30.
     
      
       Note by his Honor. I have use,d the -word, “i/árds,” throughout this opinion to obviate circumlocution, and designate Mrs. McDow’s distributive share: which was, in fact, one-half, and not one-third.
      
     
      
       Bail. Eq.. 334.
     
      
       d) See Gretton vs. Harvard, 1 Swan. 425, note (a): cited 2 Story Eq. §1080, (5th Ed.)
     
      
       2 Ves. sen. 668.
     
      
       Ball & B. 24.
     
      
       2 Ves. sen. 525.
     