
    Spangler v. Dukes.
    1. Where a husband intending to make a provision for his wife in lieu of dower, executes and delivers to her, through the intervention of a trustee, a deed for a portion of his real estate, which is reasonable in amount and value, and is given and accepted in consideration that she release all claims as widow against his estate, and then dies intestate, owning other real estate, in which she is entitled to dower under the statute, she may, at his death, elect to waive the provisions made for her, and claim her dower, but she cannot claim both. (Rev. Stats. §4189.)
    2. If after the title is vested in her by such conveyances, the unrecorded deeds are, by mutual consent, destroyed, the title is not thereby re. invested in the husband; neither is her right at his death to make such election divested, although by such destruction of the deeds it was intended to reinvest him with the title.
    3. Where after commencing an action to quiet her title to such provision, and when the same is pending and is being contested, she, without being fully advised as to her rights, claims and receives dower in other lands, sold to pay debts, she may still be permitted in furtherance of justice, to make her election, and accept such provision on condition that she restore to the estate the amount so received as dower, and release all claims to dower in the residue of her husband’s lands.
    4. Where a husband during coverture makes a provision for his wife, in full of all her claims as widow against his estate, including her right to dower, which she accepts, and he dies intestate, she is not thereby barred of her right to the year’s support provided by law, out of his estate. Gollier v. Gollier, 3 Ohio St. 369, followed and approved.
    Error to District Court of Wood county.
    In the court of common pleas, Elvira Dukes brought her action, alleging that she had the legal title and was in possession of a certain tract of land of about eighty acres, that plaintiffs in error set up and claim an estate therein, and prays that they be compelled to show their title, and that it be declared void as against her. /
    
      The amended answer of Nancy Spangler, 1st, Denies that plaintiff has the legal title; 2d, Avers that plaintiff is the widow of one John Dukes, who died February 28th, 1875, intestate, leaving defendant his sole heir, and that at the time of his decease, he was seized, among others, of the tract of land in controversy, and of an equitable estate in certain other lands, all of which descended to defendant, subject to the payment of debts, the widow’s dower and the provisions made for her by statute. She further alleges, that about the 23d of November, 1S72, John Dukes was then seized of other lands, of the value of $20,000, and personal property of the value of $8,000, and owed about $14,000, that he was then old and infirm and subject to be influenced and controlled by plaintiff, by means of which she procured his consent to a disposition of his property to be effectual after his death, so that she could hold her portion free from interference, and free from any claim by the heirs of her husband, and to that end she procured a justice of the peace to draw the necessary papers, among them a release by her of all her claim to her husband’s estate, on his conveying to her the lands in question, that in part performance of that arrangement a deed was executed by John Dukes to convey this land to his wife, but defendant denies that it was properly executed and delivered, so as to pass her the title, that said arrangement was never carried out, nor did she execute any release, and the pretended deed under which plaintiff claims was ineffectual to pass title. Further, that before said arrangement was completed it was by mutual consent abandoned, and the papers already prepared were canceled and destroyed, and that no consideration passed for said deed.
    It is also averred, that plaintiff, as administratrix of her husband’s estate, procured to be set off to her as her year’s support, notwithstanding said arrangement, the sum of $2,000 in money as well as other allowances made for her by statute for her year’s support, and claims dower in all the lands of her husband. The prayer is that plaintiff’s title be adjudged void, or if that is not done that the consideration named in said deed, $12,000, which is the value of the land, be declared a lien thereon, and be paid in such manner as the court may direct.
    To this plaintiff replied denying that John Dukes died, seized of this land, or that the same descended to defendant.
    John Dukes died January 28,1875. This action was commenced March 12th, .1875. Defendant’s answer was filed August 16, 1875.
    On the first trial in the district court on appeal, the court, . at the conclusion of plaintiff’s testimony, dismissed plaintiff’s petition-, holding on the case made, that she had no cause of -action. This judgment was reversed by this court in Dulces v. Sjpangler, 35 O. St. 119, for reasons therein stated, and the .cause was remanded for further proceedings.
    On the next trial, the court made a special finding of facts, and, in conclusion of law therefrom, in favor of defendant in .error as follows:
    , . “ 1st. On the 15th day of November, 1872, the said John -Pukes being aged and infirm, was sick and as he then believed •could not recover. That the plaintiff was his fourth wife, .about 30 years younger than himself and childless. That said John. Dukes had only one child, the defendant, Nancy D. (Spangler, who was his daughter by a former marriage. That -in the year 1850 said, John Dukes gave to his said daughter 240 .acres of land in Hancock county, for which he paid $2,400, and .which was its then value. That he had given to her a small . amount of household goods at her marriage and had never given -her. anything else. That in the year 1850 said John Dukes gave to (George W. Spangler, the husband of his said daughter, 80 £ acres of land, in Hancock county, then of the value of $400, and never gave'him any more. That on said 15th day of No•.vémber, 1872, the said John Dukes held by deed and title bond . twelve hundred acres of land in Wood county, Ohio, includ- . ing the 240 acres in this cáse in controversy, in all of the value of $28,8.00. . That the said 240 acres was then worth $9,600. That there was unpaid on his said lands the sum of.$3,200. ; That lie then owed Richard Dukes $2,000; Lewis Dukes -. $3,500; Laskey, $3,500; and other debts, $662. That his per-j.sonal estate at that time did not exceed his said debts. That on said 15th day of November he sent for one Lewis Dubbs, a justice of the peace of said county, to come to his house, and when there he then informed said justice that he wanted to make a disposition of all his property. That he wanted to-deed one 80 acre lot to one Horn, a young man he had raised, and he wanted to deed the 240 acres in the petition described, to one -Wood, as a trustee, and by said Wood to be conveyed to his wife. That the balance of his estate he wanted to give to one of two objects, either to establish a school for the education of young ministers or the missionary society, and that he wanted to consult said justice about which would be best.
    “ The said justice said to him lie-had better do it by will; That said Dukes said no; he had consulted a lawyer about it, and it could be done that way. That said justice then wrote, and said Dukes executed and delivered said deeds to Horn. And that said justice then wrote the deed for said 240 acres from said John Dukes to said Wood which was in due form of a warranty deed from said Dukes to said Wood. That the consideration named in said deed was $12,000. That it was then duly signed and acknowledged by said Dukes, witnessed and delivered. That no consideration then or afterwards was paid or intended to be paid. That at the same time the said Wood duly conveyed, by warranty deed, said premises to the plaintiff and the consideration in the deed named, also was $12,000, but no part of it was then paid or intended to be paid. That to sign said deeds said Dukes was held up in bed, and after so executing the same he became so exhausted and sick that he said to said justice that he was not then able to complete the disposition he then desired to make of the balance of his estate, and he requested said justice to remain until morn, ing to finish, but the justice could not do so, and it was then arranged that said justice should be sent for as soon as said Dukes should be able to complete his intended disposition.
    “That said Dukes afterwards became much better and ■ able to be up and attend to business, and never afterward sent for said justice or made any further disposition of his estate.
    “ The court also further find that at the time of so execfiting said conveyance to said Wood, and by Wood to the plaintiff, said Dukes intended the same as a settlement and full provision for her out of his estate. That the same was a reasonable provision for her, and said John Dukes then intended and understood that the same should be in full of all rights and claims on her part out of his entire estate as Iris widow. And that the plaintiff so accepted said conveyance with full knowledge of all the matters herein above stated.
    
      “ The court further find that afterwards, in July, 1873, the said John Dukes sent for said justice and the witnesses to said deeds to come to his house, and when they had done so he requested the plaintiff to bring out said deeds to Wood and herself, and when she had done so he said he wished them destroyed, and said justice asked the plaintiff if it was her wish and she replied ‘ yes, I suppose so, if it is his wish.’ And thereupon said justice burned said deeds up, the same not having been recorded. That said Dukes afterward gave as a reason for so doing that his relatives complained about the deeds and threatened to sue him. That said John Dukes died intestate, January, 1875, and the plaintiff, Elvira Dukes, administered upon his estate. That she claimed and was allowed for her years support, under the statute, two thousand dollars, which sum she received out of the personal estate. That she also claimed and received property of the value of $100, and the other allowance of household goods.
    “ That afterward plaintiff married one Newton, who was appointed administrator de bonis non of said estate, and the personal property being insufficient to pay the debts, on the 6th of January, 1879, he filed his petition in the Probate Court of said county of Wood, representing the deficiency to be $7,800, and asking for the sale of 520 acres of said land, and in said action the plaintiff, Elvira, was made a party in said case, and filed her answer, claiming dower therein as the widow of said John Dukes, and asking the value thereof in money, and such proceedings were had in said case that said Probate Court found the allegations in the petition were true.
    “ That plaintiff was entitled to dower therein and ordered the sale of said lauds, and out of the proceeds ordered said debts to be paid, giving the plaintiff in money the value of her said dower interest.
    “ That afterwards, to prevent a sale, and to pay said debts, the said administrator and said Nancy Spangler agreed, and at private sale sold 800 acres of the land owned by said Dukes, including said 520 acres so ordered to be sold.
    “That 600 acres thereof were sold at $16 per acre, and 200 acres at $28 per acre.
    “That out of the proceeds, as the value of her said dower interest, the said Elvira Dukes, plaintiff, received $1,910. That $8,800 were applied in payment of balance due from said John Dukes on said lands. $3,000 were received by said Nancy Spangler, and the balance was used by said administrator in paying debts of said estate, costs and expenses. That there is still unpaid of said debts of John Dukes, $900. That besides the said 240 acres in this case in controversy, there remains but 80 acres of land unsold as above stated, of the value of $20 per acre.
    “The court further find that the said plaintiff, Elvira Dukes, after the decease of said John Dukes, claimed and received under the statute, all the provisions for her, as the widow of said John, and did claim and receive dower in all the lands of which John was seized at the date of said deeds, and at his decease.
    “The court further find that when the plaintiff demanded and received her year’s allowance out of her husband’s estate, she was in doubt as to her rights, and supposed that the burning of the deeds would prevent her holding the lands so conveyed to her ; that she was made a party defendant in actions brought by the administrator of her husband’s estate for the sale of lands to pay debts, and answered asserting her dower interest therein, while this action was pending, and when decisions adverse to her title had been rendered against her in the common pleas and district courts.
    “That the allowance for her year’s support was made March 10th, 1875. That $563.35 of this allowance was paid her in personal effects, and the balance credited to her on her settlement as administratrix of her husband’s estate after the commencement of this action.
    
      “The court, therefore, from the facts so found and as the law of the case are of the opinion and find as the law of the case, that the equity of the case is with the plaintiff, and that the plaintiff is entitled to be quieted in her possession and title in and to said lands, in the petition described.
    “And- thereupon the said Nancy I). Spangler moved the court to set aside said finding and conclusions of law, and for a new trial — for the reason that said finding and conclusions of law from the facts so found are contrary to the law of the case and not sustained by said facts.”
    This motion was overruled, and a bill of exceptions was taken.
    To reverse this judgment error is prosecuted in this court.
    
      A. Blacltford, for plaintiff in error.
    At her husband’s decease Mrs. Dukes could elect to take either the provisions of the post nuptial settlement, or dower and statutory allowances, but she cannot have both. Receiving dower and other allowances was an election. Crooks v. Crooks, 34 Ohio St. 610; Roper Hus. and Wife, 482; 1 Wash. R. Prop. 268; Bishop Married Woman, §§ 430, 431, 432, 433; and .see cases cited note 2, § 433. Parham v. Parham, 6 Humph. 287, holding that if she claims dower .and distribution she must renounce the benefits of the deed. That it was so understood and agreed, when deed made, may be shown by parol. Livingston v. Livingston, 2 Johns. Ch. 539. The intention may sufficiently appear from the nature of the provision and the inconsistency of taking both ; or it may be shown by parol. Clancy, Hus. and Wife, 230. Wood v. Warden, 20 Ohio 518. Garver v. Miller, 16 Ohio, St. 527. In equity such contracts are enforced between husband and wife. Houghton v. Houghton, 14 Ind. 506, and Resor v. Resor, 9 Ind. 347, were verbal agreements. Also, Thomas v. Brown, 10 Ohio S. 247.
    
      •Cook da Throwp, for defendant in error. -
   Johnson, C. J.

Prom the findings of fact it is clear ; 1st. That John Dukes in November, 1872, intended to make a full disposition of all his estate without leaving a will/ 2d. That in part execution of that intention he, through a trustee, executed and delivered a deed, in fee, of the land in controversy to his wife as a suitable provision for her, in full for all her claims as widow against his estate, in consideration that she would relinquish all claims as dower or otherwise against the same ; and 3d. That such provision was reasonable and was accepted by her in lien of all claims against her husband’s estate.

This was in legal effect a jointure, settled on her during coverture, which vested in her the estate in fee, and the subsequent destruction of the deeds did not reinvest her husband writh the legal title, though done with her consent, and was so intended by the parties.

It further appears that from physical inability, at the time, to fully execute his intention to make a full disposition of his property, the matter was postponed for a time and finally abandoned, and an ineffectual effort made to undo what had been done by the destruction of the deeds to his wife; and that subsequently he died intestate seized of other real estate in which his wife was entitled to dower, if not barred by the jointure, and that she being in doubt as to her rights in the matter, and not having been fully advised in relation thereto, demanded and received her dower in a portion of said lands, which have been sold to pay debts, and still claims dower in those not yet sold, while retaining possession of the land in controversy and prosecuting this action to establish her jointure, by reason of the fact that her title deeds were never recorded.

From this state of facts it is clear that by the delivery of the deeds, the legal estate vested in her. It was not divested by destroying the deeds, even with her consent, and that at her husband’s death she might elect to waive her jointure and be endowed under the statute (Revised Stat. § 4189).

That it would be inequitable to allow the widow to claim both jointure and dower, when the former is a reasonable provision for her, in lieu of the latter.

That as her claim to dower was made after the commencement of this action to quiet her title to the jointure, and while her right to this land was in grave doubt, and before she was fully advised in the premises, she should not be thereby estopped from her election under section 4189 of the Revised Statutes.

But if she now elects to prosecute this action to establish her jointure she must restore to the estate the amount already received as dower in the lands sold, and release her claim to dower in the unsold lands.

Something has been said as to her returning also, the amount she has received as widow for her year’s support.

Under Collier v. Collier, 3 Ohio St. 369, she 'is entitled to this allowance notwithstanding this provision was in full of all claims against said estate.

Judgment aeeordingl/y.  