
    
      Penelope Avant vs. John H. Robertson.
    
    1. Widow’s claim of dower extends to all the lands of which her husband was seized' during coverture; and the alienation of the husband, during his life, is an immaterial circumstance, as to her right of dower. The very definition of dower, of course, embraces the whole right, whether in lands aliened, or in tiróse of which the husband died possessed.
    2. The acceptance of the provisions under the statute, by a widow, is a legal bar to her rights of dower; and such acceptance may be pleaded at law, as a defence to the demand of dower.
    3. Where a widow is found purchasing part of the real estate of her deceased husband, joining with the other heirs at law in the title deeds for otherportions of the land, and receiving part of the money for which the land was sold, these are such circumstances as go to shew her election and acceptance of the statutory provision of dower; and' where the question of election has been fairly submitted, (under the circumstances,) to the jury, and they have decided, the Court will not disturb their finding.
    
      Before Earle, J., at Horry, Fall Term, 1841.
    This was an action by the demandant to recover dower in the lands of her deceased husband. Plea, that the de-mandant had joined the other heirs at law of her husband, in making partition of the estate, and had elected to receive her distributive share thereof, under the statute of distributions; to which there was a general demurrer, and joinder in demurrer. After argument, the demurrer was overruled, and the plea held good. The plaintiff then put in a replication, denying the fact stated in the plea, upon which issue was joined, and the case went to the jury on the following proof.
    The lands of the estate were advertised by Henry Avant, as the agent of the heirs at law, to be sold at auction, for distribution among them ; and were sold. The heirs were all of age. The defendant bought one tract of 278 acres, and produced a deed, in which the plaintiff and other heirs joined, in consideration of three hundred dollars paid. Mr. Beaty, who drew the deed, was likewise present at its execution, and the money was directed (the plaintiff being present,) to be paid to Henry Avant, the agent for them. Another tract advertised and sold in the same way, was purchased by James Lambert, for nine hundred and sixty-one dollars. He paid the money to the heirs collectively, (the plaintiff being present,) and procured their joint deed of conveyance. These two tracts composed the bulk of the estate ; another tract, whereon the plaintiff lives, was purchased by herself ; and of the proceeds of the sale to Lambert, the plaintiff did receive her proportion. There was some inconsiderable personal estate, which did not appear to have been accounted for by the administrator, or to have been distributed. Verdict for the defendant, which the plaintiff moved to set aside.
    
      Grounds of Appeal.
    
    Because the receipt and acceptance of a distributive share, under the Act of 1791, does not bar the claim of dower to land in the possession of and aliened by the husband, during coverture.
    And for a new trial, on the following grounds, viz:
    1. Because there was no evidence that the personal estate of demandant’s husband had ever been distributed, or that she received any part of the same, or a sum of money in lieu thereof.
    2. Because there was no proof of an acceptance under the Act of 1791, by the demandant, or that she ever made her election according to the said Act, And if the defence can avail the defendant at all, he should have proved that the demandant received her full distributive share under the Act, or had accepted a smaller sum, in lieu of said share.
    3. Because the fact of demandant’s joining in the conveyance of lands of the intestate, is not evidence of such an election, under the Act, as will bar her claim of dower.
   Curia, per

Wardlaw, J.

The statute of distributions, passed 1791, provides “that in all cases where provision is made by this Act, for the widow of the person dying intestate, the same shall, if accepted, be considered as in lieu of and in bar of dower.” And the questions here presented for the consideration of the Court are,

1. Does this statutory bar of dower extend to all the lands whereof the widow might have claimed dower, whether aliened by the husband, during coverture or no, or is it confined to those lands whereof the husband died seized, and of which, by the statute, the widow may take a share, as one of the heirs')

2. Is the acceptance of the provision under the statute, a bar of dower at law, or only in equity 1

3. Is distinct manifestation of election made equivalent to acceptance')

1. The very definition of dower shows that the wife entitled to it shall have the third part of all the lands and tenements whereof the husband was seized at any time during the coverture, to hold to herself for the term of her natural life. The alienation of the husband is an immaterial circumstance, as to the right of dower, and a general mention of dower, of course, embraces the whole right, whether in lands aliened, or in those of which the husband continued seized. The fourth essential requisite of a jointure, laid down by Lord Coke, (Co. Lit. 36 b,) is, “ it must be made in satisfaction of her whole dower, and not of part of her dower,” which, he says, “is so plain, it needeth not any example.” Therefore, a conveyance in part of jointure, was declared no bar to dower, from the uncertainty of its expression, and the impracticability of its application (4 Rep. 3,;) but the expression, “ in lieu and bar of dower,” has always been held to satisfy the requisite, and is the usual and approved expression in all jointures. That the Legislature intended that the widow should he barred of dower in all lands whereof she might have been endowed, may be inferred, not only from the general and unqualified expression, “ in lieu of and in bar of dower,” but from consideration of the inconvenience and irregularity which would result, if the widow, after taking, as heir and distributee, a share of the whole estate, real and personal, of her deceased husband, should be permitted, by claim of dower in the lands aliened by the husband, to subject the heirs, herself in the number, to the possible consequences of an action on the husband’s warranty, for redress of the injury done by her claim to the alienee. The Court is of opinion, that the statute plainly meant to create an election to be made by the widow, between her dower at common law, and the provision made for lier by the statute.

2. The statutory bar in question, is at least as strong as any that could be created by a devise expressed to be in lieu and bar of dower ; and the accptance of such devise may be pleaded at law as a defence to the demand of dower. Chancellor Harper, in the case of McDowall vs. Black, 1 Bailey’s Eq. 327, says, “ the rule seems to be, as laid down by Mr. Hargrove in his note to Co. lit. 36 b, note 6, that where a devise is expressly in bar or satisfaction of dower, that is a defence at law ; but that a Court of equity will sometimes, raise a case of election from the special circumstances, when the will is silent.” In the case of Kennedy vs. Mills, 13 Wendell, 553, which only makes more plain what had been before decided in New York, (1 Johns. Rep. 307; 10 John. 30; 7 Cowen, 287,) the widow’s election to receive a testamentary provision, given in lieu of dower, was, at law, held to bar her dower. All the cases refer to what was said by Lord Redesdale, in Burmingham vs. Kirwan, 2 Sch. & Lef. 451, and rest finally upon decisions in 2 Lem. 272, and Cro. Eliz. 128. The Court of law cannot compel the widow’s election, nor would it interfere with the indulgence which Courts of equity extend to her, in making it; but when of two things, between which there is plainly a legal necessity for her to choose, her choice has been made of one, the law will deny her claim of the other.

Mr. ffarttee, for the motion. Mr. --, contra.

3. The provision made by the statute, seems to he like dower ad ostium ecdesice, or a jointure settled after marriage, or a devise expressly in lieu of dower, in this, that they all proposed for the acceptance of the widow, something which, if taken, shall be in bar of dower at common law. When shall the provision be said to be “ accepted'?” It has been contended here, that it is not accepted until it has been fully paid; that no collateral satisfaction will bar before payment. It is true, that it is not the offer, but the render of satisfaction, which bars. Yet, if a yearly provision for the life of the widow, be bequeathed in lieu of dower, shall there be no bar by acceptance whilst she lives 1 If one of two things is to be enjoyed, any unequivocal act done, with full knowledge of facts and legal rights, with a view to election, determines the choice ; and whilst it establishes the title to the one thing, bars the claim of the other. The thing chosen is then accepted. The widow who enters upon the lands of her post-nuptial jointure waives her right of dower ; and in the case before us, we find the widow buying land, selling land, making conveyances, and receiving money — all acts which, under the circumstances, plainly indicate her acceptance of the statutory provision, but are irreconcileable with the claim of dower. Whether the statutory provision had been accepted, under circumstances manifesting election, was a question which the jury have decided, and this Court is satisfied with the decision.

Motion dismissed.

We concur. J. S. Richardson, John Belton O’Neall, Josiah J. Evans, A. P. Butler.  