
    Case 7 — PETITION EQUITY
    Jan. 13.
    Grider v. Eubanks, &c.
    APPEAL FROM WARREN CIRCUIT COURT.
    1. A JOINTURE IS A COMPETENT LIVELIHOOD OF FREEHOLD FOR THE wife, of lands and tenements, to take effect, in profit or possession, presently after the death of the husband for the life of the wife at least.
    2. Widow’s claim to dower is surrendered by the voluntary acceptance of the provisions of her husband’s will, devising to her all his estate, real and personal.
    By accepting the provisions of the will in this case the widow surrendered her right to claim dower in lands to which her husband held title during the coverture, but which he had sold and conveyed before his death.
    3. A widow has twelve months’ time to make her election to accept the provisions of the will, or to assert her claim to dower.
    
      The time at which she is required to make her election may be postponed, if she can not elect intelligently, by applying to the chancellor for the ascertainment of the respective values and amounts of her two interests. (Smither v. Smither’s ex’r, 9 Bush, 230.)
    4. “Where the wife is lawfully deprived of her jointure, or any part thereof, and not by any act of her own, she shall have indemnity therefor by way of dower or damages out of her husband’s estate.” (Revised Statutes, sec. 8, art. 4, chap. 47.)
    
      But under this statute she is not entitled to be indemnified by asserting claim to dower in lands which her husband had conveyed to others before his death.
    5. The widow lost her right to claim dower in lands conveyed by her husband before his death by accepting the provisions of his will, although his estate proved to be insolvent.
    J. W. GORIN FOR APPELLANT.
    1. The devise to appellant by her husband of his whole estate was of no value to her, as the whole estate was consumed in the payment of his debts.
    • 2. A deed containing no words of grant or release on the part of the wife is wholly insufficient as to her. (Hatcher and wife v. Andrews, &c., 5 Bush, 561; 1 Wash, on Real Property, 231.)
    
      3. When the husband conveys land and warrants title, the wife, if she claims dower, will be barred to the extent of the value of all she receives by devise from him.
    4. The right of the widow to dower without relinquishing the will (sec. 13, chap. 30, Revised Statutes) carries with it the burden of answering for the value of any bequest to her. Responsibility of appellant upon the warranty of her husband depends on the answer that may be made to the question whether property “come to” her by devise from the grantor. Sec. 18, chap. 80, Revised Statutes establishes the measure of her liability, making her answerable for the value of the property that came to her by devise from her husband.
    The words “ come to ” in the statute (sec. 18, chap. 80, Revised Statutes) in their popular and legal sense import a vestiture of title. Having lost the property devised to her (sec. 8, art. 4, chap. 47, Revised Statutes) without fault on her part, the law confers upon her the right to have dower without attaching value to or charging her with the property devised to her.
    5. Assuming that the devise to appellant was byway of jointure-and in lieu of dower. “The term jointure had a well-known legal signification, and must be presumed to have been used in the statute in that sense.” (Yancy v. Smith, 2 Met. 410.) At common law the requisites to a legal jointure were four, and the fourth one was that it must be made, and so in the deed particularly expressed to be in satisfaction of the whole dower of the wife, and not of any particular part of it.
    Section 7, statute 27, Henry VIII, chapter 10, provided that if by fraud or accident a jointure made before marriage proved to be on bad title, and the jointress was evicted or turned out of possession, she should then have her dower at the common law. This is the rule of law preserved by the statutes of this state to this day. Act of 1796 (1 M. & B. 576), sec. 8, art. 4, chap. 47, Revised Statutes.
    If there be estate sufficient without taking lands aliened by the husband, she is required to have her indemnity by way of damages out of her husband’s estate. But when, as in this case, there is no property left, and the widow is deprived of the provision made for her by way of jointure, and not by any act of her own, the statute says imperatively that she shall be indemnified by way of dower. Dower relates to land, and when she is remitted to her right of dower the words “ husband’s estate” mean dowable estate, and are as broad as her jointure. (Tevis’s ex’rs v. McCreary, &c., 3 Met. 151; 2 Scribner on Dower, sec. 84, p. 408; Ibid, sec. 86; 1 Wash, on Real Prop. sec. 20, p. 303; see. 29, p. 310.)
    H. J. CLARK ROE APPELLEES.
    1. The will “I hereby make this as my will. I give and bequeath to my wife, Fanny, all personal and real estate and property of which I may die possessed, or which may belong to me at my death. Nov. 9, 1869, B. C. Grider,” created a jointure and put the widow upon her election to accept or reject.
    By the common law when an instrument says it is a jointure then it is one; or when from the terms of the instrument it can be or is inferred that it is made in lieu of dower, then it is a jointure. (Adsit v. Adsit, 2 Johnson, chap. 447.)
    2. Appellant elected to take under the'will, and never renounced it.
    “An election is by entering upon land devised as well as by matter of record where it is done with full knowledge of the facts in respect to the provisions. But ordinarily whenever a widow fairly and understanding^ has elected to take the provisions of a will instead of dower she can not revoke it and claim dower.” (Wasliburne on Beal Property, sec. 25, p. 272.)
    Her election to take under the will barred her right to dower. (Sec. 7, art. 4, chap. 47, Revised Statutes; sec. 18, chap. 30, Revised Statutes Vance and wife v. Campbell, 1 Dana, 231; Shaw v. Shaw, 2 Dana, 344; Tevis’s ex’rs v. McCreary, 3 Met. 154; 7 Howard, Miss., 665; 2 Scribner on Dower, 273.)
    3. Jointure applies to property aliened by the husband. (1 Wash, on Real Property, sec. 24, p. 307, note 3.)
    4. Can’t avoid jointure on the ground of mistake. (1 Hilliard, p. 136; Douglas ads. McDaniel, 6 Humph. Tenn., 230.)
    5. A wife standing by, seeing her husband’s land sold, saying she will not claim dower, can not afterward claim. (3 Bush, 702.)
    6. A deed is good against the wife as to dower, though her name is not in the body of the deed. (2 Freman, 111., 185.)
   CHIEF JUSTICE LINDSAY

delivered the opinion oe the court.

Ben. C. Grider, wbo died in 1872, devised all his estate, real and personal, to his wife, Fanny W. Grider. A few days after his death his will was regularly probated, and his widow and sole devisee, was appointed the administratrix of his estate. More than three years after she had undertaken the execution of the will, she instituted this action in the Warren Circuit Court against divers persons, the vendees direct or remote of her late husband. She claimed that she was entitled to dower in the lands held by them, and asked that it should be allotted her.

Among other defenses relied on by the appellees, they insist that by accepting the provisions of her husband’s will Mrs. Grider barred her right to assert this claim to dower, even though it should turn out that her supposed relinquishments (she having joined her husband in his various conveyances) are invalid, because not made in accordance with the statute.

She attempts to meet this defense by averring and proving that the estate of her late husband is utterly insolvent, and that she will receive nothing whatever as devisee.

The rights of the parties litigant are to be tested by the provisions of the Revised Statutes which were in force when the transactions mentioned took place. It does not necessarily follow, from the fact that a widow accepts a devise or bequest made to her by her deceased husband, she shall be deprived of her right to dower. Generally speaking she may, by accounting for the value of the devise or bequest, maintain her right to be endowed. (Sec. 13, chap. 30, Revised Statutes.)

But by section 7, article 4, chapter 47, Revised Statutes, it was provided that “ a conveyance or devise of real or personal estate by way of jointure may bar the wife’s dowerand if made by last will and testament it did bar it, unless within twelve months after her husband’s death she should waive the jointure by a written relinquishment acknowledged or proved before the clerk of the county court and left in his custody. And in case of such relinquishment, then the estate devised in lieu of dower at once reverted to the heirs or representatives of the devisor.

Jointure is thus defined: “A competent livelihood of freehold for the wife, of lands and tenements, to take effect, in profit or possession, presently after the death of the husband, for the life of the wife at least.” (Bouvier’s Law Dictionary, vol. 1, page 758.)

It is evident the testator intended by his will to secure to his wife a competent livelihood, to take effect presently after his death, and her estate was to be absolute. The voluntary acceptance of the provision thus made was an election by the wife to surrender her claim to dower. She had twelve months within which to make the election; and if the estate of her husband was so involved that she could not elect intelligently, she might have applied to the chancellor for the ascertainment of the respective values and amounts of her alternative interests, and that officer could and would have postponed the time at which she was required to elect until the investigation could reasonably have been completed. (Smither v. Smither’s ex’rs, 9 Bush, 230.)

She did not choose to avail herself of this right, but proceeded at once to the execution of her husband’s will, and deliberately elected to hold and claim under it; and she can not now claim as widow the estate which the law would have devolved upon her in case her husband had died intestate, or in event she had in proper time renounced the jirovisions of his will.

But counsel insists her right was saved by the 8th section of the same article and chapter. It provides that “where the wife is lawfully deprived of her jointure, or any part thereof, and not by any act of her own, she shall have indemnity therefor by way of dower or damages out of her husband’s estate.”

There is no question that Mrs. Grider has been deprived by operation of law, and not in consequence of any unconstrained act of her own, of the provision her husband intended to make for her. But she is not in this action seeking to be indemnified out of his estate. She here seeks to be indemnified out of the estates of these appellees in direct contravention of her husband’s covenants of title. The statute upon which she relies plainly excludes the idea that she can, after the loss of her jointure, revive her right to be endowed out of all the real estate to which her husband held title ■during the coverture, regardless of whether or not he owned it at the time of his death. That right she lost by her election, and it can not be revived for the purposes of the indemnity contemplated by the statute last quoted.

The judgment of the court below is affirmed.  