
    *Dupree’s Adm’r and Others v. Cary and Wife and Others.
    January, 1835,
    Richmond.
    (Absent Bbockenbbotjgh,  J.)
    Widow — Renunciation of Will — Personalty Undisposed of — Case at Bar. — Testator by his will, gives real and personal estate to his wife, and leaves part of his personal estate undisposed of; the wife does not renounce, but accepts, the provision made for her by the will: Held, she is excluded, by the statute 1 Rev. Code, ch. 104, § 26, from any share of her husband’s personal estate undisposed of by his will.
    Francis Hill, late of Greensville county, by his last will and testament, devised and bequeathed real and personal estate to his wife, Sarah Hill, as a provision for her, for and during her life, with remainder to the testator’s nephews and nieces, children of his brother William Hill; but he left a part of his personal estate undisposed of by his will. He appointed Lewis Dupree his executor, who proved the will, and qualified as executor. The testator’s widow, Sarah Hill, accepted the provision made for her by her husband’s will; and dying a few years after him, by her last will and testament, bequeathed several legacies to her own relations; and, in particular, she bequeathed a legacy of 100 dollars to Lewis Dupree, “provided she was entitled to a distributable share of her late husband’s estate’’ (meaning that part of his personal estate, as to which he had died intestate); and she bequeathed all the residuum of her estate to her nephews and niece, George, William and Mary Gary. The testatrix, Sarah Hill, also appointed the same Lewis Dupree her executor, who proved her will, and qualified as executor thereof.
    In a suit brought in the superiour court of chancery of Eichmond, by the nephews and nieces, next of kin, *of the testator Francis Hill, against Lewis Du-pree as executor of that testator, and as executor and legatee of the testatrix Sarah Hill, and her legatees, for an account and distribution of the personal estate of the testator Francis, not disposed of by his will, — the question was, whether his widow Sarah was entitled, as one of his distribu-tees, to a share of her husband’s estate so undisposed of? The circuit superiour court of Henrico (to which the cause was transferred) held that she was not, and decreed the whole of this subject to the plaintiffs.
    The executor Lewis Dupree having died pending the suit in the court of chancery, and the suit having been revived there against his administrator, he and the other defendants applied, by petition to this court, for an appeal from the decree; which was. allowed.
    Spooner, for the appellants.
    Claiborne, for the appellees.
    
      
      He decided the case in the circuit superiour court.
    
   CAEE, J.

This is a bill by the next of kin of a testator, claiming a part of his personal estate, as to which he made no testamentary disposition, and died intestate. The claim is opposed by the legatees of the testator’s widow, who claim a share of this subject in her right. A provision was made for her by the will of her husband, which she never renounced. She had no right to any more of her husband’s estate than that which was bequeathed to her by his will. The statute 1 Rev. Code, ch. 104, § 26, p. 381, is express; and so are all the cases on the point in this court; the last of which is. Thornton v. Winston, 4 Leigh 152, where the other cases are cited. The decree is to. be affirmed.  