
    [Chambersburg,
    October 31, 1827.]
    CAUFFMAN against CAUFFMAN.
    IN ERROR.
    Testator bequeathed to the widow twelve hundred dollars and various specific legacies, and devised the real estate where he' lived to his son, Isaac, with remainder to his daughters, and a house and lots’ in Carlisle to his son, John, he paying three thousand -dollars to his daughters, and died- in August, 1823. The widow accepted some of the.specific legacies, but on the 10th of November, 1823, filed in the Register’s Office a written refusal to take under the will. She afterwards received the twelve'hundred dollars from the executors in full of the sum bequeathed; and by. a written instrument reciting an agreement between her and the principal devisees and legatees that Isaac pay her in addition four hundred dollars, she, in consideration thereof, released 'all right of dower; excepting and reserving 'all privileges, legacies, ■ and rights under the will,' and all right of dower to the real estate situate in .Carlisle, it being expressly understood she refused- to take under the will, and elected to take under the intestate-laws, and that the release was a compromise with Isaac and the executors, and the reference to the will was only to designate thé privileges', &c. Held, that the widow was not entitled to dower out of the real estate situate in Carlisle.
    
    Writ of error to the Court of Common Pleas of Cumberland county, in an action of dower brought by Elizabeth Cauffman, the defendant in error-and plaintiff below, against John Cauffman, to recover her dower in a house and lot situate in the borough of Car-lisle', of which her late husband, Christian Cauffman^ died seised. The property rented for about two hundred and fifty dollars per annum. .
    The plaintiff produced in evidence the will of Christian Cauffman, dated the 15th of. March, 1823, and' proved the 4th of September, 1823. The testator died in the latter part of August of that year. By the will he devised and bequeathed as follows: — ■
    
      “ I give and devise unto my dear wife Elizabeth one thousand two hundred dollars in money, to be paid to her within one year from and after my decease, my riding mare, a new saddle and bridle, one bed and bedding, the case of drawers and table, made by Mr. Snively, one cow and two sheep, and during her natural life the entire use of the parlour on the lower floor of my dwelling-house and the room up stairs that has the fire-place in it, the privilege of occupying as much of the kitchen, spring-house, and cellar, as is necessary for her own accommodation, the use of one of my ten-plate'stoves, and the one-sixth part of the garden, and sufficient fire-wood. It is further my will that my son Isaac, his heirs and assigns furnish my said wife each and every year during her lifetime with twelve bushels of wheat, one fat hog of about eighty or eighty-five pounds weight, and fifty or sixty, pounds of beef, and haul home her fire-wood, together with sufficient pasture in the summer and fodder in the'Winter for her mare, cow, and sheep. I give and devise unto my son Isaac all my real estate whereon I now live; all the grain in growth thereon now, or that may be in growth at the time of my decease, my young bay horse, one bed and bedding, the ten-plate stove in the dining-room, my clock, and the stove allowed for my wife, after her death; and in case my son Isaac should die without lawful issu.e, it is my will that the real estate, herein bequeathed to him, shall be divided equally between my daughters Elizabeth and Barbara, (or, in case of their death, then their children,) and my son John’s children; that is, my son John’s children to draw an equal share with one of my daughters. I give and devise untó my grandson, John Cauffman, my house and lot of ground in the borough of Carlisle, and my lots adjoining the said borough, in consideration of which I do hereby order and direct him to pay his two brothers and sisters three thousand dollars within three years from and after my decease. And it is also my will that my executors make sale of all my personal property, not bequeathed, as soon as practicable after my death, and whatever remains after paying all just demands against my estate and the legacies, within named, they divide in equal shares between my son Isaac, my daughters Elizabeth Rupp, and Barbary. Eberly; and, lastly, I do nominate, constitute, and appoint George Rupp, sen. and Benjamin Eberly executors of this my last will, declaring this and no other to be my last will and testament. In testimony whereof, &c.”
    The plaintiff also read in evidence a paper termed the election of demandant, filed in the Register’s Office on the 10th of Novemher, 1823.
    “To Frederick Sharetts, Esq., register of Cumberland county,
    
      “ Sir,
    < ‘Whereas my husband, Christian Cauffman, late of East Pennsborough township, did make his last will and testament, and did not make ample provision for me as he ought, in my opinion, according to the estate he possessed at his death; I'have re-fused, and do refuse, to take under the will of the testator, my late husband; and elect to take according to the intestate laws of this commonwealth, in such case made and provided for widows refusing to take under the wills of their deceased husbands; and I request the register to make a record of this my election.
    
      Carlisle, 10th November, 1823.
    Attest, Her
    
      William Ramsey, Elizabeth ><; Cauffman,
    
    
      •Sndrew Carothers. mark.” ,
    . The defendant gave in evidence as follows:— ’
    . John Weise. — -I was one of the appraisers of the personal property of Christian Cauffman, deceased, on the 6th of September, 1823. The widow was present, and said she thought it was hard that we should appraise her saddle and bridle which, Mr. Cauffman had. given to her by his will. She mentioned the marks of the cow, and said it was her cow; we made a separate list of all .the articles willed to her.
    ' George Rupp, sen. — The will was read the day of the appraisement; she said nothing against it; she told us what cow she intended to take; she had her choice of the sheep — likewise she showed what table, drawers, and bedding she took under the will;, she got every thing the will allowed her; she continued in the house, and is there yet.
    
      Isaac Caufftnan. — This will was read on the day of Christian Cauffman’s funeral.. The widow said she would not live up to it; she thought she would -take-the third of the place; she took the things willed to her; they were shown by her to the "appraisers; she remained on the premises; she is there yet; she claims one room up stairs and one down; these are the same rooms mentioned in the will; she makes usé of the spring-house, kitchen, and cellar, as they are left to her in the will; I live in the same, house with her; she makes use of the stove, and has her part of the garden; I cut her wood, and hauled it1 for her last year; she gets the pasture and fodder; I give her the wheat every year; she got,the hog all along too; she got the beef; she got the mare, &c., and has got them yet. , . - ■
    
      Benjamin. Eberly. — I was present when the will was read, and Mrs. Cauffman was.present. After the will was read, Clenden7iin asked if they .were all satisfied, and they appeared all satisfied.. He asked her whether she had any objections; she said she had objections; that a man of wealth like Cauffman did not allow her sufficient. We parted directly; not much said by her at the appraisement, whether she wanted the thirds or not; she took every . thing that was bequeathed her in the will, the twelve hundred dollars and the other things. ,
    
      “Received October 9th, 1823, of George Rüpp and Benjamin Eberly, the executors of Christian Cauffman, deceased, one riding mare, a new saddle and bridle, one bed and bedding,.thé ease of drawers and table made by Mr.. Snively, one cow and two sheep, and one ten-plate stove.
    Her
    
      Elizabeth ; x Cauffman,
    
    .mark.”
    ■She gave the following receipt about'six’months ora’year after the appraisement:— , ■ ''
    “ Received December 27th, 1823, of Benjamin Eberly, one of the executors of the last will of Christian Cauffman, one thousand two hundred dollars, in full, the sum bequeathed to me. by-my late husband, Christian Cauffman,‘ deceased. .
    Her
    
      Elizabeth x Cauffman,.
    
    ' mark.” •
    The demandant further gave in evidence as follows:—
    “ Whereas my late husband, Christian. Cauffman, bequeathed to me certain privileges and certain specific legacies, which taken into consideration,. I did not-believe were such as ought to. hav¿ been given to me out of so valuable an estate as he possessed, both, real and personal. And, whereas it has bee.n agreed between me. and the principal devisees and legatees that Isaac Cauffman pay me, in addition to the -bequeathments under the will of the said. Christian Cauffman, the sum of four hundred dollars, in addition to the privileges and specific legacies as aforesaid.
    “Now, know all men by these presentsj that I, Elizabeth Cauffman, widow and relict of the- late Christian Cauffman,' late of East Pennsborough township, Cumberland county, for and in consideration of four hundred dollars to iné in hand paid, do release and for ever quit claim to all the. estate both personal and real of the said Christian Cauffman, deceased. I do release all dower and all right of dowrer to any lands or tenements of the said Christian Cauffman.; and I release the executors, or heirs, from all suits of and on account of dower coming to me, excepting and reserving to myself, my heirs and executors, and administrators, all privileges, legacies, and rights under the'.will of the said Christian given to me; and also reserving all my right and dower to the real estate of the.said Christian, situate in the borough of Car-lisle: the parts thus reserved to be and remain vested in me, the same as if this release had not been given, and executed. And it is expressly understood that I have refused to take under the; will of my late husband, Christian Cauffman, deceased, and that I elect to take according to the intestate laws of this state, and that the foregoing release is a compromise with the devisees and legatees of 
      Christian Cauffman, deceased, so far as it affects Isaac Cauffman, George Rupp, and Benjamin Eberly; and that the reference to the will is only to designate the privileges, money and other articles, I am to receive from those, who by law are bound to pay the same to me. In testimony whereof I have hereunto set my hapd and seal this 10th day of November, A. D., 1823.
    Her
    
      Elizabeth x Cauffman,
    mark.”
    The court below charged the jury among other things as follows:— . '
    The inquiry is, whether any acts weré done or declarations made by the widow establishing her choice. When the will was first read to her, the witnesses say that she was dissatisfied, and said she should not abide bjr it. Other witnesses state that within a few days afterwards, when the appraisers were taking an inventory of the estate, she pointed out the articles willed to her, and objected to their being appraised. She remained in the house of her deceased husband and occupied the privileges willed to her. • About' two months-afterwards she-filed, in the Register’s Office a formal renunciation of all claims'under the will, and made her choice of dower; I do not consider these unimportant acts done by her as concluding her right and preventing her from the election. The question is, was it a series of deliberate acts done under a knowledge of her rights, evincing a determination of her mind to take under the will, not to claim her dower; if so, then in law it would conclude her. But if there was no deliberate act,' no decisive step, nothing doné evincing her determination to take undér the will, then in law she was not concluded from taking her dower. The paper filed in the Register’s Office on the 10th of November, 1823, is an'unequivocal-act clearly evincing its object.- In it there can be no mistake. But if it is said after this, that the widow claimed and took under the will,'that she held and enjoyed the privileges specified in the will, and received the money bequeathed to her; if these were so, and remained unexplained, it would demonstrate her choice notwithstanding the paper filed. But these matters seem to me to be sátisfactorily explained. On the -10th of November, 1823, the same day the paper was filed, the widow, Benjamin Eberly, Isaac Cauffman, and George Rupp, the principal devisees and legatees under the will, met and entered into an engagement; she released the parties named from her choice of dower on their estate derived from her husband, on their agreement that she-should receive the articles and money specified in the will, and a further sum of four hundred dollars not under the will. But it is with clearness and precision specified in that agreement that she refused to take under the will, and that she did expressly state in the agreement that she refused to take under the will. It is proved by B. Eberly,_ I. Cauffman, and others, that they and Rupp did agree that she was to have the four hundred dollars beyond the sum mentioned in the will, and the same articles that were specified in the will; and after this agreement, and after this suit brought, we find the receipt of the widow to B. Eberly for the articles, and also at a subsequent period for the twelve hundred dollars. I see nothing to preclude these persons from making the agreement ■with the widow. They had large interests under the will and were residuary legatees of the personal estate. Why might they not specify what they would allow her .in consideration of her release as to them, and agree with her that such an agreement should not affect her right to election, as it regarded other lands of her husband devised to other persons? It is to be remembered that Eberly.was the acfing'executor. 'In case a widow refuses to take under the will of her husband, and elects her dower, I am not certain that she would not be entitled to the.portion allowed by the intestate laws; but of this I have my doubts. It is not necessary to decide: but if such was the view of the parties to the-agreement, and no order to settle all disputes about it, it was intended that the articles and money should go to her as her portion of the personal estate, agreeably to the intestate laws, I'cannot see how that would take away her right of election, for still she would not have received them under the.will, but without as opposed to the will.
    To this charge the defendant excepted, and the jury found a verdict for the plaintiff..
    
      Penrose, for the plaintiff in error.
    The devise was in satisfaction of dower, and put her to. an election. She actually entered into the property devised in the will. Hamilton v. Buckwalter, 2 Yeates, 389. Fifty pounds taken under the will is an election. 3 Yeates, 79. Acceptance of part is conclusive: 10 Johns. 30. So of an annuity. Here the plaintiff agrees to take under, the will, although she denies it. He cited, also, 2 Mad. Ch. 41, 42, 43. Adsit v. Adsit, 2 Johns, Ch. 452. Wilson v. Hamilton, 9 Serg. & Rawle, 427. 6 Johns. Ch. 35. If the widow release the remainderman, it will inure to the release of the tenant for life. 2 Bac. Ab. 384. Here the release to one will be the release of all; as otherwise the defendant below would have contribution. It is the same as a release of one of two joint obligors. 1 Ves. 235. 1 Bac. Ab. 702.
    
      Carothers, contra.
    
    
      Metzgar replied.
   The opinion of the. court was delivered by

Duncan, J.

One thing is very certain, that the widow holds every thing specifically bequeathed to her by the will of her husband, to the.smallest particle, and now enjoys all the privileges of the property devised to Isaac Cauffman, aqcordirig to the will of her husband; and it is equally certain that so holding her bequests, if she succeeds in this action, she deféats the will and deprives the plaintiff in error of every thing.that his grandfather intended, and nothing is more certain than that by the express provision of the acts'of. the 4th of April, 1794, and 1st of April, 1811, these bequests are in bar of dower, leaving her her choice either to demand her dower, or take to the bequests, — her choice she has not testified in the manner prescribed by the act of 1811. That is to be on a citation issuing from the Orphans’ Court, calling on her to appear in the Orphans’ Court, either to elect such bequest or devise, or waive it and take to her dower: of which election a record is to be made, which shall be conclusive on all parties. This election is to be made by the widow personally, appearing in court. Of this personal appearance, and election a record is to be made.

The paper filed on the 10th of November, 1823, with the register was altogether extrajudicial, and was no more a compliance with the direction of the act, than if it had been filed with the cryer of the court. Not only is the fact as I have .stated it, but the forms used to enable her to take both the bequests, and' the dower in this infant’s house, however ingenious the expedient may have been, shows that she stuck to the will as to all the benefits to be derived-from it, though'she was desirous of avoiding the effect of such an act. The election of the demandant, filed in .the Register’s Office, is dated the 10th of November, 1823, and the agreement between the devisees and the principal legatees, as Cauffman, and the two sons-in-lawj Eberly and Rupp, are styled, and the release to .the executors or heirs was of the same date, witnessed by the same persons, the counsel of Isaac, and Eberly and Rupp.

These papers are .to be considered as the same transaction, done uno fi'aiu, and for the purpose clearly of the demandant’s taking under the will, without the legal'consequences flowing from such an act. The election in the paper filed in the Register’s Office, is an election to take according to.the intestate laws, and a refusal to take und'er. the will.. But,-take this in connexion with'the concomitant agreement, — stating that the consideration was an agreement to take from Isaac four hundred dollars, in addition to' the bequests under the will, and in addition to the privileges and specific legacies, — there is no ambiguity. ££’ Whereas it has been agreed between me and the principal devisees 'and legatees, that Isaac Cauffman pay me, in addition to the bequests under the will of the said Christian, the sum of four hundred dollars, in addition to the privileges and specific legacies.” And, in the releasing part,, it is a release of all the estate, ££ both real and personal, of the late Christiana Cauffman, and all dower, or right of dower, to any lands'or tenements of the said Christian Cauffman, and all suits for or on account of dower to the executors or heirs,— excepting and reserving to myself, my heirs, executors, and administrators, all privileges, legacies, and rights, under the will of my husband given to mej and also reserving'all my right of dower to the real estate of the said Christian, situate in the borough of Car-lisle, the parts thus reserved to be and remain vested in me, the same as if this release had never been given or executed.”

'■Now nothing can be clearer than the'substance of this agreement. It was an agreement'that she should take all given to her,by the will, and, in addition, receive four hundred dollars. And, in.the very same words that ,she reserves her right to all the privileges, legacies, and rights under the will, she reserves her right to dower to the property in Carlisle. Then comes the salvo: — “And it is expressly understood, that I have refused to take under,the will of my late husband, Christian Cauffman, and that I elect to take according to the intestate laws of this, state, and that the foregoing release is a compromise with the legatees of Christian Cauffman, as far as affects Isaac Cauffman, George Rupp, and Benjamin Eberly, and that the reference to the will is only to designate the privileges, money, and other articles, I am to receive from those who by law are bound to pay the same.” We are not to b¿. governed by the sound of words, but by the substance. By the words, it was a compromise, an. agreement, that .she should have all given to her by the will, and a reservation of all her rights to the personalty given to her by. the will; and the salvo is to guard against the legal consequences arising from that agreement and reservation. And, in point of fact, she did take all under the will— all given to her by the will. She could not take it by agreement with Isaac Cauffman, and Rupp and Eberly — it was not theirs to give, as I shall presently show, if she had renounced it; for if she took to her dower, then she was bound to surrender up'to the disappointed devisee, John Cauffman, by way of compensation or satisfaction, every thing given to her by the will. It did not go to the residuary legatees, nor to Isaac Cauffman; and it will not escape observation, that, in the concluding lines of the salvo, in speaking of the privileges, money, and articles “I am to receive from those who by law are bound to pay the same,” all those acts • were done and the papers prepared, by her own counsel, and the counsel of Isaac Caiiffman, and Rupp and Eberly; arid, so far as respected themselves and their own interest, it was very well; but, so far as respected, the plaintiff in error, he Was no party to it; he was an infant; neither himself nor his guardian consented, and'it whs an agreement sacrificing his interest. The parties took care of themselves — their acts bound them — and of their acts he may take advantage, and of the legal results of their acts.

The receipts of Elizabeth Cauffman, the demandant, whatever may have been the real dates, to the executors for the specific articles, show that she received from the- executors, in their character of executors, and in pursuance of the will; and the receipt for the money legacies, explicitly and conclusively proves what the real transaction was:

“Received of Benjamin Eberly, one of the exeeutbrs of the last will and testament of Christian Cauffman, one thousand two hundred dollars, in full, the sum bequeathed to me by my late husband, the said Christian Cauffman.”

These papers, the work of the parties to the original agreement, carefully read over to her when'she signed them, show what this transaction really was: that the demandant should take all under the will; but it was to be so conducted, that she should appear to acquit them under the will, but would take them by way of compromise from those who had no power to give them-in any other character than as executors. -

It may be said, that .these subsequent acts were acts of ignorant people, unacquainted with .legal forms. It may be so, or it may not be so; but it clearjy shows their understanding of the transaction, and they had sufficient knowledge of their own inténtions and views. It may be true enough that the counsel did not draw the receipt in this form:’ it may be true'enough they may have recommended a salvo to be adopted; but.these receipts incontestably and conclusively prove acceptance and election under the will, the real undisguised intention. The papers, taken together, prove the character in which she took the legacies — a legatee; and the character in which the persons stood who. were the executors, executing the last will and testament of the testator. .There.is nothing equivocal in.this., She could take them in no other character than that given to her by the will, the executors could give them in no other character, and I‘ think amount to conclusive evidence of election: they recite the character in which she claims them.. However it may be as to.others, as to John it was an acceptance and election. It matters not how they concocted the matter, the question is, did she take them under the will? — mo matter whether by compromise or otherwise.- The agreement,-was, that she should have them in addition. The reservation of them in the release was a reservation under the will:- — “reserving to me all the privileges, legacies, and rights under the will of my late husband given to me.” And the evidence is, that she constantly has possessed all these rights and privileges, in literal and exact conformity to her husband’s will, down to the very table made by Mr. Snively. How, then, can it be said that she renounced the bequest when she reserves these, when she constantly has enjoyed that? How could she be said tó renounce that which she in terms reserves?

The doctrine of election has long prevailed; it has,undergone many modifications. The- eases cannot all be reconciled; but these clear principles may be deduced from them: It is a conclusion in equity, that where any person having a claim on a mán’s estate independently of him, and also a claim on his estate under his will, which claims are repugnant to each other, pursues the former, the latter is thereby waived or abandoned. This was the case of Noyes v. Mordaunt, 2 Vern. 581, and Streatfield v. Streatfield, Talbot, 176. In other cases it is put in this way: that no one claiming Under a will, shall have any part of the estate to the disappointment of those' to whom it is given by the will. If they will have the estate, chancery will take away their legacy/ You cannot come into a court of justice claiming repugnant rights.. The principal question is, whether such taking induces absolute forfeiture, or only imposes an obligation to indemnify the claimants when it disappoints them. In England, though decisions and dicta have been both ways, the latest authorities seem to sanction the doctrine of compensation: that when a case of election is raised, it does not give a right to retain the thing itself, though it gives a right to compensation out of the thing devised to a legatee attempting to defeat the devise to others. Chancery would sequester the thing devised, to make compensation and satisfaction to the disappointed devisee. This subject is very, fully considered in a note to 1 Swanston Ch. Rep. 425, in which all the cases extant are reviewed. But the dif-' Acuity with us would be, how to get at the compensation. A conditional verdict, under the equitable powers of the court, restraining execution till the compensation has been made, or the amount of the legacy and bequests to the widow applied, has not yet been adopted. So far as I have any knowledge of the practice, it has been considered as a bar to the recovery. In Miller’s Lessee v. Gibson, this was so considered by the court of Nisi Prius at Carlisle, by Justices Yeates and Smith; and in Hamilton v. Buckwalter,2 Yeates, 392, M‘Kean C. J., said, the entry and possession of the. widow upon the land devised to her, was not a suspension merely, but an utter extinguishment of her right of dower. . But the acts of assembly to which I have referred, seem to put the question at vest, by enforcing the widow to make choice: if she does so make choice, and has not done any act previously to determine her election, before slie can take under the will she must renounce her dower. • But, in the present case, I think the demandant has made a binding election, and one that bars her recovery. The agreement and receipts to the executors, are, in my mind, conclusive. The determination of her election was by plain and explicit acts. Her bare receipt for the articles bequeathed to her would not have been sufficient; but the agreement, release, and receipts, taken in connexion with the document in the Register’s Office, was with full knowledge of the circumstances of the testa-. tor and her own rights — unequivocal acts, performed not in ignorance, but with full knowledge; not by inadvertency, but by choice; and where the demandant cannot restore the plaintiff in error to the same situation, as if these acts had never been done. But even if she were yet at liberty to make her election, it must be by surrender to the disappointed devisees of all the bequests under the will, or their value.. This should be a condition precedent — tender be-. fore action brought: in no other way could compensation or satisfaction be made. In case of her rejecting the will, the property did not vest in either the executors or the residuary legatees: if they agreed that the widow should hold it,' and that she has the right to it, it could only be for the reason that she accepted it under the wills if she did not, she could neither reserve it, nor they relinquish it. Chancery would sequester for the purposes of the will: if they .would sequester the fund for that.purpose, on the principles on which equity is distributed in this country, the satisfaction, should be made in the first instance, — it should be the first Step.

By the doctrine of sequestration to make compensation, the intention of the testator, so far as circumstances will admit, is effected; by the doctrine of forfeiture, that intention, in many cases, would be defeated. If, in Pennsylvania, the forfeiture would not be exacted absolutely, still it would be a forfeiture, until the party made compensation and satisfaction. But though the usual course, in England, is to resort to a court of equity, because at law the party cannot be put to elect, yet even courts of law apply the principle of election; and it is a good defence in á court of law, where the party has acted upon it in such a manner as to be concluded by what he has done; that is, to have elected; But if it be a matter only in equity, equity would grant relief in case of a recovery at law in an action of dower, where the devise was in bar of dower, (as all devises here are, by positive law,) and carry into execution the trust of the will. 2 Vern. 366. For a history of this case, see note to 1 Swanston, 398. If there had not been an election here, then how would the case stand? John Cauffman and Isaac Cauffman would, if the widow proceeded against them in a claim of dower, be entitled to the bequests to the widow, each in proportion to the value of the land devised to them. But I judge the widow to have so acted, to have so elected to take to the will wholly, (for:she could not do it partially,) as to have foreclosed herself from now maintaining this action of dower. I have not considered it necessary to go formally through all the objections made to the opinion of- the court. The way in which it was argued, and properly argued, too, was on one general objection — on the doctrine of election — on which the Cause mainly rested.

It is proper to notice the doubt expressed by the court as to the widow’s right to the personal property, on her repudiating the will, under the intestate law. There is no foundation for this doctrine. The- husband can strip'his wife of all the personal property by the will; and so he has done here, except so far as he has bequeathed her; and the jury would naturally be misled by what the court say, or their supposition, “ that the agreement of the parties was or might have been, that the money and articles bequeathed to her, should go to her as her part of the personal estate, agreeably to the intestate laws: and that would not alter the case, for she would not have received them under the will, but in opposition to the will.” There is no evidence of any such mistaken views between the parties. The highly respectable counsel, who advised the-measure did not fall into this errorj or lead their clients into it.

I add, in conclusion, that the claim of the widow is to deprive the defendant of the whole property devised to him, to defeat in toto the provision intended by his grandfather, clear of taxes and repairs. The house .would not rent for more than two hundred dollars, — the charge of three thousand dollars to be paid to his brothers and sisters: the interest of this money would leave him little more than twenty dollars per year.; and, if the widow recovers in dower* instead of a benefit it would be a burden to him. Rights of widows to dower are favourite rights, but are not to be favoured by the sacrifice of the interest of others. Now, here, the sacrifice of the rights of this infant is very apparent. Rupp and Eberly had nothi.ng under the will which could be affected by any claim of dower. Isaac’s estate, though much more valuable than John’s, is compromised by giving up to the widow every thing given to her by the will, and four hundred dollars, — twenty-four dollars per year; so that this compromise is effected by talcing the compensation which John would be entitled to by the rejection of the will, to make up a consideration to the widow for the release of Isaac’s l<mds from the claim of dower. And, though it doth not appear on the record, yet it is admitted that Rupp and Eberly, the sons-in-law, held lands by conveyance from the testator, in which the demandant did not join; so that all gained but John by this compromise, made at his expense, and with the consideration that John would be partly entitled to some compensation. These, s'ons-in-law would not be entitled to any satisfaction, if the widow had recovered in dower from them. John could neither recovér from- Isaac nor from the executors, any satisfaction, as has been supposed by the defendant in error. It is admitted John should have satisfaction somewhere, from somebody, out of the thing devised to the widow. From the widow he cannot gain it, because she has givfcn the executors a receipt for it, under the will: they stand acquitted from Isaac: he cannot gain it in any form of action; and, unless he can retain the thing devised to him, he is without remedy. ■ The widow took the whole devised to her from the executors, and /in exact and literal conformity to the will. , The parties, by their agreement and release, attempted to do that which the law.would not allow; v.iz. to take the thing devised to her, and defeat the will of the testator, as • to the devise of John. Instead of declining altogether by her deed all claim under the will, she reserves in explicit terms all her bequests under it; in addition to this, she is also to have the compromise from Isaac, — four hundred dollars: This was a clear, manifest assumption of property, hy virtue of the will. She certainly never did relinquish her claim under the will, but reserved it, exacted it, and received it from the executors, and now enjoys the particular privileges in the mansion house of the testator. She accepts-the benefit, while she declines the consequences. She says, “ I reserve all benefits under the will of my husband; but I shall retain to myself the right to disappoint John of what hjs grandfather has given him. She takes the benefit of the bequest, though she discards the condition annexed to these bequests — not to disappoint John, the devisee. Now, to accept the benefit, while she declines the burden, is to defeat the design of the donor. I hold she cannot say, “I will retain what is given me by the will with a salvo, that I do> not mean by this to give up John. My.intention is, to take both the bequest and the dower out of his estate.” Now this she cannot do.

Equity, if she had not made her election, and had brought a writ of dower, would stay her suit at law. The earliest case on this-subject, is noticed, 1 Swanston Ch. Hep. (in note,) 397, which was a ¡suit at law in a writ of dower, brought by the defendants. The bill for relief stated,- that the defendant’s wife had certain copyhold lands devised to her in lieu of her thirds at law, which she accepted and enjoyed twenty years, and yetseeketh now'to recover dower of the freehold lands. The defendants demurred, because copyhold lands can be no bar to dower; but the court say, that it is no conscience she should have both, and therefore ordered to answer. The defendants were afterwards permitted to proceed to a judgment on the trial'at law with stay of execution. Wherever chancery would restrain execution, óur courts of common law would hold there should be no recovery, as this is the only way in which equity could be administered; for'the conditional verdict and judgment, though frequently, resorted to, to enforce equity, yet never have been applied to cases of election. , But the election and acceptance here were perfect, and the right to choose again extinct.

1 am therefore of opinion, for all these reasons, that the judgment should.be reversed. '

Rogers, J.

I will briefly state the reasons of my dissent from the opinion just delivered. I throw out of view the acts of the widow, previous to the 10th of November, 1825; for I admit that if these acts amount to an election to take under the .will, she cannot after-wards have her dower at common law. On the first point, these were properly left by the court to the jury, with the expression of the opinion, in which I concur, that they were unimportant acts done by her, and did not conclude her rights, nor prevent her. from her election.

I'discard, also, all idea of combination a.nd fraud, for such was not pretended in the Court of .Common Pleas; and is thrown in here, as a mere make weight in a question, I apprehend, of mere law. If the jury should believe there was actual fraud, there would be an end of the controversy; but the persons who were concerned in the settlement of this business, forbid all supposition with me that this was the case.

That this is the case of election is not doubted; the widow cannot claim under the will, and at common law. The devise to the widow is not expressly in lieu of dower, but it is máde so by the 10th section of the act of the 4th of Upril, 1797, with an express saving of her choice either of dower, or the estate devised. It may be as well here to observe, that it is not necessary the widow’s election be made in the Orphans’ Court, but in one event; that is, when she has not made’her election within twelve months from the death of the testator. The act of assembly does not preclude from her election, before the expiration of that time; and I know of no place where it can be more properly made than in the office of the register, which has jurisdiction of the probate of wills.

By the instrument of the 10th of November, 1823, she manifests her intention, by an unequivocal act, by which she was ábsolutely bound; for it is not pretended, but it was voluntarily done, and of her own free will and accord. It was a determination of her election, which may be either by express words, or by act. 3 Com. Dig. title Election, 540. After this solemn act, she was entitled to her dowér, and nothing else: she could not take under the will, without the consent of those who had interest under it. Their rights vested and could not be' devested without their assent. An equivocal act may be explained, but not such an act as this. The election may be kept open for twelve months, but when once made, it concludes the parties. 3 Com. Dig. title Election, 540.

Standing in this situation, the widow came to .the agreement of the 19th of November, 1823, with Isaac Cauffman, and the residuary legatees, and the executors nf the will.

It will, I am sure, be conceded that her right of dower, in the lands of Isaac, was a fair article either of sale, or compromise. This free privilege has never yet been denied her, and, I trust, never will. If Isaac and the residuary legatees, or the executors, had agreed to .give her one thousand, pounds for her right of dower in his land, it .would surely have bound them; and John Cauffman would have had no right to complain. It would have been open to him, to make the same compromise. , But the argument is, that because they undertake to give, and she accepts the same property devised her by the will, that their acts amount to an election to take under the will. The principle is not denied, that a person shall not claim -under an instrument, without giving full effect to that instrument, as far as he can. 2 Mod. 640. 2 Vern. 581. 2 Vern. 617. 2 Atk. 629. The question here is, does she take under the will, or the agreement of the 10th of November. If ever there was care taken to exclude a conclusion, it has been done here. The parties to the agreement expressly say, that the release is a compromise with the devisees and legatees, of Christian Cauffman, so far as respects Isaac Cauffman, George Eupp, and Benjamin Eberly, and that the reference to the will, is only to designate the privileges, money, and other articles she is to receive from those, who, by law are bound to pay the same. She also expressly refers to the filed paper of the 10th of Novem ber, and again confirms and solemnly ratifies it. In the face of all this, we are gravely told, that the acts of the widow amount to an election to-take under the will. By a system of'legal metaphysics, which I cannot comprehend, the counsel for the defendant in error compel her to elect contrary to her intention.

But what is the justification of this? It is said, at the bar, that after shé expressly disclaims all intention of taking under the will, yet she now enjoys the articles devised to her by the will. If the interest of John Cauffman were affected, there would be some show of sense in the argument. It is, however, plain, that he is placed-in no worse situation by the arrangement, for the grandson has the same right, and the same remedies, as if the compromise had not been made. Had the widow, without entering into agreement, recovered her dower, what would have been his remedy? He would have been entitled to a compensation, for his proportional share of the privileges relinquished by the .widow, and the remedy would have been by an action- against Isaac, and the exetors. Although the course of a Court of Chancery would be to sequester the devised interest' quousque, till satisfaction is made to the disappointed devisee; yet, in Pennsylvania, where we have no Court of Chancery, it is submitted there is no such power: the articles would go into the hands of the executor, he would have a legal right to them; they would be subject to his disposition. The land of Isaac would have been discharged from the burden imposed by the will. The action then would have been against ■the executor, and the owners of the land, for a compensation, and ■the jury would have been directed to give such damages as were right, under the circumstances of the case. The measure of damages would be the value of the articles and privileges relinquished,. and that in proportion to the respective value of the .dowers recovered. If this suit prevails, he has precisely the same remedy and no other. ‘ How then, has he a right to complain of the agreement, when his rights are not affected? He would not, I expect, be entitled to the articles, but a compensation, to be ascertained by suit.. But, if we adopt the argument of the plaintiff in error, the loss is thrown upon the widow, by a construction in express contravention of the intention of all the parties to the agreement of the 10th of November, 1S23. In my view of the case, justice would be done to all.. On the contrary, the widow loses all.

But it has been said, that the legatees are .not parties to the contract. This idea was not hinted at in the Common Pleas: it was left to be discovered by legal ingenuity here. They were present when the agreement was made, took possession of it, put it on the record, and performed their part of the agreement, by payment of the money, and by putting the widow in the possession of the articles referred to. it would require some assurance for them, now to allege they were not parties to the agreement The la.w regards substance, not shadows. They do not now make the objection: it is John Cauffman. expressly, not á party, and who I have shown is not injured by thebarrangement, who takes the objection. On the best consideration which I have been able to give this case, I am of the opinion, that justice and the law of the country requires, that the judgment of the Common Pleas be affirmed. -

Judgment reversed.  