
    
      Craig's Heirs v. Walthall & Wife.
    July Term, 1858,
    Lewisburg.
    a. Wills — Construction of- Case at Bar. — Testator owning a large and valuable tract of land, and leaving a widow and six infant children, describes .separate j>arcels of the land by boundaries, one of which he gives to each of his children. As to one of these parcels he says, "It is my will that the above described part of my farm shall be owned by my son John (about thirteen), and Ido bequeath it to him subject to the control of my dear wife during her widowhood, and then to my son John for life.” The widow takes a beneficial interest in the land during her widowhood.
    jí. Same --Jointure under Statute — Dower—Case at Bar.* — The testator devises all his land to his different children, giving the wife one of the parcels during her widowhood, which parcel has the improvements upon it. He also gives her his slaves for life, all the rest of his personal property to enjoy and use for the best interests of his children; and the interest on the bonds due him to be used by her for the benefit of his children. This will be held to be in lieu of dower under the act. Code. ch. 110,  4, 5, p. 474-5.
    
    3. Same — Same—Same—Election—Case at Bar.* — In such case the widow haying been told that the provision in the will was in lieu of dower, and advised to renounce it, declines lo do so, and expresses herself satisfied with the provision; and takes possession of the property and holds it for four years, until she ' marries.--She has elected to take under the will, and cannot then claim her bower.
    John Craig died in August 1852, leaving a widow and six infant children. By his will, which was duly admitted to probate in the County court of Montgomery, *he laid off by metes and bounds three parcels of his land; and after designating the bounds of the first, he says, “I want,I direct, I bequeath the above described or parcel of land to my daughter Mary Taylor Craig, with the exception,” that he wished each of his other children to have an acre lot of the said tract near the town of Christiansburg. After setting out the bounds of the second tract, he says, “It is my will that the above described part of my farm shall be owned by my son John Craig; and I do hereby bequeath it to him, subject to the control of my dear wife, Emeline Craig, during her widowhood, and then to my son John for life.” Third, he says, “I desire that part of my farm now occupied by my tenant, Ch’s Rurrow, and known as my Burrow place, to my daughter Melinda W. Craig.” And then he directs how certain lines shall be run. Rourth, he says, “I desire that the remainder of my farm shall be divided between my three children, Rleanor Lewis Craig, Ja’s Robert Craig, and Ch’s Joseph Craig, so as to be equal to each in point of value, or as near as can be made.”
    The testator directed that all his negroes should be used by his wife Rmeline Craig during her natural life; and then to be equally divided among his children then living. And he gave his wife all his personal property excejit slaves, to enjoy and use for the best interests of his children. And he expressed the wish that the bonds then due to him and bearing interest should be kept as long as the circumstances would allow, in the hands of good and responsible persons, bearing interest, to be used by his wife Rmeline Craig for the benefit of his children. And he appointed his brother Robert Joseph Craig and his nephew James C. Taylor executors of his will; the latter of whom qualified as such.
    It appears that the eldest of the testator’s children was at the time of his death about sixteen years old, and the second, John, was about fourteen. It appears *too that the testator owned a large tract of very valuable land; there being at least eleven hundred acres, estimated at thirty dollars per acre; and that all. the dwelling-houses and out-houses were on the part given to John Craig, whose land was estimated by some of the witnesses at one-third, and by one at one-fourth in value of the whole tract. The slaves were only six in number, and three of them were so old as to be an expense. The other personal chattels were horses, cattle, and the usual stock upon a farm.
    Soon after the death of John Craig, the widow was informed by the executor that there was a provision for her in the will, that the executor considered it in lieu of dower, and that it might prove insufficient for her support if she should marry again. And in view of this fact he advised her to renounce the provisions of the will made for her, and elect to take her third. This she positively refused to do; saying- she regarded the provision in the will as being intended for her dower, and ample for her support. It was also proved that her mother advised her to renounce the will-; but she indignantly refused. And she occupied the land subjected to her control during her widowhood, and held the slaves and other personal property from the death of John Craig until she married Thomas A. Walt-hall, in October 1855.
    In December 1855 Thomas A. Walthall and his wife filed their bill in the Circuit court of Montgomery county, against the children of John Craig, the object of which wks to have dower assigned to the female plaintiff in the real estate of Craig. The bill stated that she continued in possession of the mansion-house and personal property, and cultivated the farm and appropriated the proceeds to the maintenance of the children. That she never elected to take the provisions of the will, for her benefit, if they could be said to be for her benefit, in lieu of her claim for dower.
    defendants answered, insisting that the female plaintiff had accepted the provisions of the will in her favor, and that they were in lieu of dower. The facts, as they appear in the record, have been already given. The cause came on to be heard in June 1857, when the court held that the female plaintiff was entitled to have her dower assigned in the real estate of John Craig; and appointed certain commissioners to lay it off and assign it to her. And from this decree the heirs of John Craig obtained an appeal to this court.
    Watts and Grattan, for the appellants.
    Staples, for the áppellee.
    
      
      See monographic note on "Dower" (division VI, C!) appended to Davis v. Davis, 25 Gratt. 587.
    
    
      
      Code, ch. 110, § 4. “If any estate, real or personal, intended to be in lieu of her dower, shall be conveyed or devised for the jointure of the wife, such conveyance or devise shall bar her dower of the real estate, or the residue thereof.”
    
    
      
       5. “But if such conveyance or devise were before the marriage, without the assent or during the infancy of the feme, or if it were after marriage, in either case the widow may at her election, waive such jointure and demand her dower. And when she shall demand and receive her dower, the estate so conveyed and devised to her shall cease and determine.”
    
   SAMUELS, J.

This case presents, for the first time in this court, the question as to the true construction of sections 4 and 5, chapter 110, pages 474 and 475 of the Code of Virginia. This statute differs widely from that formerly . in force, 1 Rev. Code of 1819, ch. 107, l 11, 12, in regard to legal jointures; and it approaches very nearly to the law of equitable jointure, as heretofore administered by the courts of chancery.

Our case seems to turn upon the several questions:

1st. What estate may make a jointure?
2d. Has such estate been devised by Craig to his wife?
3d. Was that estate intended to be a jointure?
4th. If so intended, has the wife made a valid election, accepting the jointure and relinquishing dower?-

In regard to the first question : the statute is too plain to admit of doubt. Either real or 'personal estate of itself may make a jointure: it follows that both combined may have the like effect. The question was brought to the mind of the general assembly by the revisors, whether real estate only, or personal estate as well, should make a jointure. See Report of Revisors 565, ch. 110, ? 4, and note. The general assembly *enacted that real or personal estate might make a jointure. It is not required that the jointure should begin at any particular period, or be of any particular duration of time.

Upon the second of the questions above stated, it appears that testator’s whole personal estate was bequeathed to his wife in some form; the slaves for life; his goods and chattels absolutely; for on the authoritj' of Stinson’s ex’or v. Day & wife, 1 Rob. R. 435, and Dold v. Wallace, 3 Leigh 258, it cannot be held that testator’s children had any interest in the goods and chattels. The interest on money due to testator was given to his wife, to be used by her for the benefit of his children. This provision far exceeded the wife’s distributive share in the personal estate, in case she had asserted her claim to such share within the time and in the mode prescribed by the statutes, Code, ch. 123, § 12, p. 524; Sess. Acts 1852, ch. 28, (j-1, p. 80. The argument on behalf of .the appellees was chiefly directed to the purpose of proving that no-beneficial interest in land was conferred by Craig’s will on his widow; that her control over a portion of the real estate during her widowhood, was only as an agent or trustee for John Craig-, the devisee in fee. If Emeline Craig the widow, and John Craig the son and devisee, had been strangers to the testators, I am inclined to think that the will would have conferred on her an estate during widowhood; that there is no appreciably- difference between undefined control of real estate for a time, and a right to enjoy that estate for that time. However it -would have been between mere strangers, yet the case affords other aids in the construction of this will: they are found in the relations of the parties, the condition of the estate, and of the beneficiaries under the will. Mrs. Craig, the widow, had a right of dower in her husband’s real estate, which he could not affect without hex consent. *He might by law offer her a jointui'e of real or personal estate, or of both, in lieu of dower; and if she accepted the offer, her right of dower would be barred. The will should be construed in reference to the limits of the husband’s power over his estate, and should be held to be within those limits, unless he appears to have intended to disregard them. If no property be given by this will as a jointure, then the husband exceeded his power in making present devises of his whole real estate by specific metes and bounds. This disregard must be followed by a derangement of the whole scheme of his will; for the dower in the whole estate must be assigned without regard to the metes and bounds of the specific devises. Some of the devisees must give up the whole or a large portion of their land to be held as dower, and then look to the other devisees for conti'ibution to alleviate the bui'den imposed by the dower estate.

It is not shown that there is any thing in the condition of John Craig the devisee^ which should require his property to be put under the control of his mother for an indefinite time. He was thirteen years old at the time of his father’s death. If the devise had been intended for his sole benefit, it is impossible to see what interest of his would be promoted by withholding his property from him after arrival at full age; or by putting his property in the hands of another to be held for an uncertain time, without security to account for its profits. Other and younger devisees were left to the care of the law, to be exercised through guardians. It is apparent that the testator intended that his infant children should reside with their mother, the widow ; thus it was necessary that she should have a dwelling-house; and it is shown by the record that the only dwelling-houses on the estate were on that part of the land put under her control during widowhood. The personal estate given to the wife, consists *chiefly of slaves, live stock and farming utensils. Some of these subjects could be “enjoyed” and “used” only on a plantation. In my judgment it is clear that the widow was invested with a beneficial interest during widowhood in that part of the land put under her control.

Passing to the third question, it may be said that the second and third questions run into each other to some extent, so that a part of what has been said in regard to the second, applies to the third. The testator intended his will in all its parts to be effectual. If we suppose his intention to have been to create a jointure by means of the real and personal estate given to his wife, the will is consistent in all its parts. If, however, it be supposed that an estate in dower is yet to be carved out of the lands, then the devisees will, to some extent, be deprived of the lands devised to them respectively; and parts of the will are in conflict. If it shall be held that no jointure was intended, the widow on the death of her husband was entitled to dower, one-third part of the whole estate. Whether she would hold the land devised, and also her dower assigned out of the other land; or whether the land devised to her would be required to contribute to the estate in dower, it is not necessary to consider; for in either event, the consequences would be so much at variance with the whole scheme of the will, that I am constrained to believe that the provision made for the wife was intended to be in lieu of dower, and not in addition to it.

It only remains to consider the fourth question, whether the widow has made an election to accept the jointure in lieu of dower. On the general principles of law, a party cannot be required to make an election without such knowledge of the subjects submitted to his choice as will enable him to choose discreetly. On the same principles, a party cannot be 'xheld to have made an election without such knowledge, unless it manifestly appears that he intended to waive the benefit of accurate information; that he intended to incur the risk of making a bad choice. In our case, it is shown that the widow had full knowledge of the property given her by the will; she had it in her own possession ; she repeated^ and expressly declared that she accepted and held the property as a full satisfaction of her interests in her husband’s estate, and refused to take steps necessary to obtain any thing further from that estate. That an election may be made by acts in pais, seems to be well settled by the courts. 1 Tom. Dig. p. 146 of new edition, 121 of old; 1 Bright on Husband and Wife 546.

It would be hard to conceive a case in which an election could be more distinctlj-made than was that in our case.

I am of opinion the decree should be reversed, and the bill dismissed; giving the appellants their costs expended in this court and in the Circuit court.

The other judges concurred in the opinion of Samuels, J.

Decree reversed, and bill dismissed.  