
    *Kinnaird Ex’or &c. v. Williams’s Adm’r and Others.
    July, 1836,
    Lewisburg.
    (Absent Brooke and Cabeia,, J.)
    [31 Am. Dec. 658.]
    Wills — Election by Legatee — Acts Amounting to.— Where the will of a testator devises away land belonging to another person, and gives a legacy to that person, he cannot claim, the benefit of the legacy, after asserting his right to the land and recovering it from the devisee.
    Same — Same—Effect of Waiving Legacy.  — Though a legatee under a will which devises away property belonging to him, elect to retain such property and to waive the legacy, the testator is not thereby rendered intestate as to the subject of such legacy, but it shall go to the disappointed devisee, in satisfaction of his loss.
    Same — Renunciation by Widow — How Made Effectual. —A widow cannot effectually renounce the provision made for her by the will of her husband, so as to entitle hersglf as distributee, but by declaration made within one year after the husband’s death, before the general court, or court having jurisdiction of the probat of the will, or by deed executed in the presence of two or more credible witnesses.
    Isaac Williams late of Wood county, by his last will and testament, duly recorded in the court of the said county in November 1820, after giving several small pecuniary legacies, devised and bequeathed all his real estate and slaves to his wife Rebecca Williams for her life, and also bequeathed to her one half the proceeds of his other personal estate, which might remain after the payment of his debts. He directed that his slaves should be emancipated at the death of his wife; and from and after her death, he devised half of the real estate to his son in law John G. Henderson (whose wife, the only child of the testator, had died without issue) for and during his natural life. And he directed his executors to sell the real estate, as the life interests "therein devised by the will should expire, and to divide the proceeds, and such balance of personalty as should remain after payment of debts and legacies, among six of his relations, whom he named. Three executors *were appointed by the will; of whom only one, Hezelciah Bukey, ever qualified.
    Within the year ensuing the testator’s death, Rebecca Williams instituted a suit in chancery against Henderson and the other persons interested in the real estate under the dispositions thereof made by the will, claiming the whole of that estate (which consisted of one tract containing' 400 acres) as her own absolute property by title paramount the will; and by the final decree in that suit, pronounced in May 1824, the plaintiff recovered her seisin of the whole tract, and the defendants were required to convey and release to her all their title thereto.
    In 1826, John A. Kinnaird, claiming as executor and sole devisee and legatee of Rebecca Williams, then lately deceased, filed a bill in the superiour court of chancery for the Clarksburg district, against the executor of Isaac Williams, and the several parties who were interested in the personal estate of that testator, as legatees or distributees thereof, setting forth the proceedings and decree in the suit brought as aforesaid by Rebecca Williams, and insisting that the said Rebecca, “'having so renounced her husband’s will,” was in her lifetime entitled, and the plaintifFas her executor and legatee was entitled now, to such interest in the personal estate of Isaac Williams, as by law she would have been entitled to if he had died intestate ; and therefore praying, that the executor of Isaac Williams might be compelled to settle the account of his administration, and pay to the plaintiff a full half of all the said personal estate. The bill concluded with a prayer for general relief.
    Bukey the executor of Tsaac Williams died pending the suit; which was thereupon revived against Joseph Tomlinson the administrator of Bukey.
    Tomlinson the administrator answered the bill, and insisted that Rebecca Williams, never having duly renounced the provision made for her by the will of her *husband, was, on that ground, debarred from claiming any part of the personal estate except what was given her by the will; and having claimed and recovered, by a paramount title, the land devised, was consequently disabled to claim as legatee; and so the plaintiff was not entitled to any portion of the personalty whatever.
    The plaintiff filed a supplemental bill, insisting that the suit instituted by Rebecca Williams was an equitable renunciation of the provision made for her by her husband’s will; but if it were not, that she was still entitled to half of the personal estate, as legatee.
    At the hearing in April 1835, before the circuit superiour court of law and chancery for Wood county (to which court the cause had been transferred) the judge pronounced the following opinion:
    1 ‘This case is understood as follows— [Here the judge made a statement of the case, and recited the provisions of the testator’s will.] — This disposition of an estate over which the testator evidently regarded himself as having an entire control, carries ■on the face of it the leading objects of his mind; which were, 1. an ample provision for his widow for life, who was advanced in years and left childless; 2. the use of the laud, after her death, by the husband of his deceased daughter (who had left no issue) during his life; 3. a provision for some of the branches of his own family. These intentions, so far as relates to the intended bounty to Henderson, had he survived the widow, and to the other dev-isees in remainder, have been defeated by the title of mrs. Williams to the land, paramount the will: and can she, under such circumstances, take the land and defeat the provisions of the will in relation thereto, and yet be entitled to the personalty devised to her, or the legal portion thereof secured to her in a case of intestacy?
    In Stewart v. Henry, Vern. & Scriv. 53, the rule is stated in clear terms, that where a devisee takes a gift *under the will, the law annexes a condition to the gift, that he shall not dispute any other part of the will, even though another part gives away from him something to which he had an undoubted right. To this rule there are some exceptions, but none of them apply to this case. As a corollary from this proposition, I presume it follows that if the devisee insists upon his paramount right, he surrenders the devises in his favour. In Wilson v. Mount, 3 Ves. 191, it was decided that a person entitled under a will, and also paramount and against it, must elect. In Vane v. Lord Dungannon, 2 Sch. & Lef. 130, the court held that where a will proceeds upon a mistake, a devisee, insisting upon the benefit of such mistake, must relinquish what the will gives him. In Moore v. Butler, 2 Sch. & Lef. 267, it is said, 1. that no person puts himself in a capacity to take under an instrument, without preforming the conditions of it, expressed or implied; and 2. that the foundation of the rule of election is, that a person cannot accept and reject the same instrument: and that this rule is equally applicable to every species of instrument, whether deed or will. The same doctrine will be found in various cases, and among others in Thellusson v. Woodford, 13 Ves. 209; Dash wood v. Pey-ton, 18 Ves. 41; Welby v. Welby, 2 Ves. & Beam. 187; Gretton v. Haward, 1 Swanst. 409. In Cogdell’s ex’or v. his widow &c., 3 Desauss. 388, it was decided in South Carolina, that where a testator has a right to dispose of some property, and no right to dispose of some other property, which is vested in others beyond his control, and makes disposition by his will of both, those entitled to the property which testator had no right to dispose of shall not take any benefit under the will, unless they acquiesce in the disposition made by the testator in relation to their property. In Upshaw v. Up-shaw and others, 2 Hen. & Munf. 381, our court of appeals recognize and affirm the whole of the doctrine here discussed. Judge Roane states the *settled doctrine to be, “that no man shalldisap-point the will under which he claims, and that therefore, if a man bequeath to another property to which he has no title, but which belongs toa third person, to whom he gives by the same will other parts of his estate, such third person must elect, and convey his property to the devisee, or he cannot take the property devised to him.” And his reasoning upon this point is, to my mind, conclusive of the first question.
    Rebecca Williams, by her recovery, has converted the estate for life, devised to her, into an estate of inheritance. She has thereby defeated the intentions of the testator to provide for the collateral branches of his family, and invested the present plaintiff, who was not within the bounty of the testator, with a fee simple estate in the land. In the language of judge Roane, she has disappointed the will of the testator, and cannot, therefore, be permitted to assert a right under the devises in her favour; nor can the present plaintiff be in a more favourable situation. I hold it unnecessary to enter into a process of reasoning to shew that the recovery of the land, and the devising of it in a different channel from that intended by the testator, was not only an election, but an actual taking in contravention of the will. Indeed, in the first bill filed, the plaintiff charges the recovery of the land as constituting a renunciation of the will and of the devises under it, and claims in right of his testatrix such portion of the personal estate as mrs. Williams would have been entitled to, if her husband had died intestate.
    Without entering into the enquiry as to what were the rights of the wife at common law, so fully discussed in Lightfoot’s ex’ors &c. v. Colgin et ux., 5 Munf. 42, we may safely adopt the conclusion that in Virginia a widow, where no settlement has been made, can only acquire an interest in the personal estate of her deceased husband, by virtue of some devise in his will, if he *makes one; by renouncing the will as provided by the act of 1785, now constituting the 26th section of the 104th chapter in the revisal of 1819; or under the 29th section* of the same chapter, where the husband dies intestate. If the views herein before taken are correct, mrs. Williams could not take any benefit from the devises of the personal estate in her favour. She cannot take as distributee under the 29th section, because, as to Isaac Williams’s estate, there was not an intestacy. His will is before us, and excludes her from the moiety of the personal estate given by that section to widows whose husbands die intestate as to goods and chattels, or any part thereof, if there be no child. It yet remains to ascertain whether her election to take the land in her own right operates so as to let her in as a dis-tributee under the 26th section.
    In Taylor and wife v. Browne and others,, 2 Leigh 419, the court decide that the renunciation of the will is an immaterial circumstance, with reference to the' right of *the wife to take by election against the will; and that taking out letters of administration with the will annexed did not amount to an election to take under the will. In that case the question was, whether mrs. Taylor’s election to take under the deed, and against the will, could be made in any other form than that of a renunciation, in the manner and time prescribed Ipy the act of assembly. The chancellor held that it could not, and decided against her. The court of appeals was of opinion that this statute had no relation to a case of election to take by title paramount to the will, or under the provisions of the will, and reversed the decree. Taylor and wife offered to account for all the property not conveyed by the deed to-mrs. Taylor; and consequently the question, what interest she took as distributee, or whether she could take any thing in that character, did not arise in the cause, nor was any opinion expressed on that point.
    The power of disposing of personal property by will, to the exclusion of the wife, is only restrained by the act of assembly authorizing her to renounce the provisions of the will, in the manner therein provided, and giving her, as a consequence thereof, a share in the distribution. This mrs. Williams did not do.
    I am of opinion, therefore, 1st, that by recovering the land in fee, and thereby defeating the intentions of the testator, mrs. Williams was precluded from claiming as legatee; and 2dly that, failing to renounce the provisions of the will in her favour, in the manner - and within the time prescribed by the statute, she did not entitle herself to claim as distributee of the personal estate, if such renunciation would, after the election which she made, have conferred such right: and consequently her devisee and personal representative, the present plaintiff, is not entitled to recover on either of those grounds.”
    The circuit court accordingly dismissed the bill with costs; and the plaintiff appealed to this court from the decree.
    *Fisher, for appellant.
    Summers, for appellees.
    
      
      Wills — Doctrine of Election. — In Wilson v. Lord Townshend, 2 Ves. Jr. 697, it is said : “Suppose, in a will, a legacy is given to yon by one clause : by another, an estate of which you are iq possession, is given to another : while you hold that, you shall not claim the legacy.” As affirming this doctrine, the principal case was cited in Dickinson v. Dickinson, 2 Gratt. 496 ; Penn v. Guggenheimer, 76 Va. 846. See further, monographic note on "Legacies and Devises” (subhead, Acceptance and Refusal of).
    
    
      
      Same — Renunciation by Widow — Appropriation of Property Given up to Indemnifying Legatees. — In Mc-Reynolds v. Counts, 9 Gratt. 244, it is said-: “The widow, by her renunciation of the will, disappointed the legatees to the extent of one-third of their respective legacies ; by her waiver she gave up a life estate in two-thirds of the real estate. Familiar principles of equity authorize and require courts of chancery jurisdiction to sequestrate the property thus given up, and appropriate its profits to indem - nify the legatees for their disappointment. Kinnaird's Ex'or v. Williams's Adm’r, 8 Leiah 400: Dillon v. Parker, 1 Swanst. R. 359 ; Gretton v. Haward, 1 Swanst. R. 409.” See also, cases cited in. foot-note to McReynolds v. Counts, 9 Gratt. 242.
    
    
      
      1 Rev. Code of 1819, ch. 101, § 26. p. 381, provides, that “when any widow shall not be satisfied with the provisions made for her by the will of her husband, she may, within one year from the time of his death, before the general court, or court having jurisdiction of the probat of his will, or by deed executed in the presence of two or more credible witnesses, declare that she will not take or accept the provision made for her by such will, or any part thereof, and renounce all benefit which she might claim by the same will: and thereupon such widow shall be entitled to one-third part of the slaves whereof her husband died possessed, which she shall hold during her life; and she shall moreover be entitled to such share of his other personal estate, as if he had died intestate, to hold to her as her absolute property; but every widow not making a declaration within the time aforesaid, shall have no more of her husband’s slaves and personal estate than is given her by his will.
      § 29, p. 382, provides, that “when any person shall die intestate as to his goods and chattels, or any part thereof, after funeral debts and-just expenses paid, if there be no child, one moiety, or, if there be a child or children, one third of the surplus shall go to the wife; but she shall have no more than the use for her life of such slaves as shall be in her share. Note in Original Edition.
    
   CARR, J.

I am for affirming this decree ; and 1 take pleasure in declaring that the opinion of the judge in the court below has placed the subject in a light so strong and clear, as to render it hardly necessary to saj7 a word. The widow could not claim under the 29th section of our statute of wills, as in a case of intestacy, because we have before us the will of her husband. She could not claim under the 26th section, as renouncing the will, because such renunciation must be made within 12 months after the husband’s death, before the general court, or court having jurisdiction of the probat of the will, or by ' deed executed in the presence of . two or more credible witnesses; and she has done neither of these things. She ■ must then, by the express words which close the 26th section, be held to take under the will. -But she has precluded herself from doing this, by her election to claim against the will: for she has sued for and recovered, in fee, by title paramount the will, the tract of land which the testator, considering it his own, had devised to her for life, and to others after her. By this step she has disappointed and defeated the whole scheme of the will: and the doctrine of election, that you cannot claim under a will, deed, or other instrument, and against the same instrument, is too well settled to need that

1 should quote cases in support of it.

I am for affirming the decree, and cannot but express some surprise that the appeal should ever have been granted.

TUCKER, P.

The authorities cited by the judge of the circuit court who rendered this decree, established beyond question the position that the decedent Rebecca Williams, by asserting her individual right to the real estate devised away by her husband’s will, and thus ^disappointing that will, forfeited all her rights under it. No principle has been more incontrovertibly settled than this, that where a devisee under a will sets up a claim to property devised by the same will to another, he must either release his right to that, or be excluded from the devise to himself. Upshaw v. Upshaw and others, 2 Hen. & Munf. 381 ; Wilson v. Lord Townshend, 2 Ves. jun. 697. In this latter case lord Rosslyn says, “You cannot act, you cannot come forth to a court of justice, claiming in repugnant rights. When you claim under a deed, you must claim under the whole deed together. You cannot take one clause, and desire the court to shut their eyes against the rest. Suppose, in a will, a legacy is given to yon by one ■clause; by another, an estate of which you are in possession is given to another: while yrou hold that, you shall not claim the legacy. You cannot dispute the ownership. So in the case of personal legacies. If a specific thing belonging to one of the legatees is by the will given to another, the legatee cannot hold both. He must make himself competent to take the legacy, by giving up the specific thing'.’’ In this case, mrs. Williams has actually sued for and recovered the land, and has thus entirely disappointed the will. She must therefore give up all claims under the will.

I do not mean to deny that there may be cases in which the interest, given by the will, will not be considered as altogether forfeited, but only quousque (as the phrase is) ; that is, the subject devised will be sequestered until satisfaction is full3 made to the disappointed object of the testator’s bounty. Green v. Green, 19 Ves. 669; S. C., 2 Meriv. 95. As, if the legacy was of 10,000 dollars, and the property claimed was only a single slave; though the legatee asserted his title to the slave, he would still have a right to the excess above his value. So here, had the plaintiff rested this case upon the allegation that the legacy was worth more *than the land recovered, he would have had a right to the excess. But this is not pretended, nor is it probable; and the modification of the general principle, therefore, cannot properly be applied to this case.

We come next to enquire whether the widow has entitled herself to demand her distributable share of the estate, either upon the ground of a supposed intestacy as to part, or upon the ground of a supposed renunciation of the will as to the whole.

As to the first, there is no pretence for saying there is an intestacy as to that portion which she has forfeited by claiming the land. Eor it is actually devised to her, and is construed to go to those whom she has disappointed by her claim, in part satisfaction for their loss.

As to the second. By the act 1 Rev. Code, ch. 104, f 26, it is provided that the renunciation shall be made within one year: and this with a view to enable the executor, and all parties concerned, to know within a convenient time what course the widow may choose to take, and what disposition is to be made as to other distribu-tees, legatees &c. If the renunciation were indefinitely postponed, specific legatees and others must in like manner be held in suspense for indefinite periods, which would be greatly vexatious. The time therefore was fixed to a single year, which affords to the widow ample leisure for reflection, while it determines her choice early enough to avoid any material injury to others interested in the estate.

Again, observe How the renunciation is to be made, and before what tribunal. It is to be made before the general court, or the court of probat, or by deed executed in the presence of two witnesses; and the act must be no equivocal act, which may be avowed or disavowed, insisted on or explained away, according to subsequent events, but the widow must distinctly declare that she will not take or accept the provision made for her by the will, or any part thereof, and that *she renounces all benefit which she might claim by the will.

Lastly, observe the negative words, “every widow not making the declaration within the time aforesaid, shall have no more of her husband’s slaves and personal estate than is given her by his will.’’

Now in this case it is contended that the suit was a renunciation. Was it the distinct, unequivocal act required by law? There is not a word or remote allusion to renunciation in it; and in the present bill we find the party actually renouncing the idea of renunciation, and claiming to hold as legatee under the will. The act of suing and recovering, then, does not bring the party within the provisions of the statute. It is neither a renunciation in itself, nor in the manner and form required by law. If a renunciation by parol or even by deed with one witness, or before any court other than the court of probat or the general court, would be void, how much clearer is the case of a mere bill in chancery, filed without a word of renunciation, and exhibited before a court not authorized by law to receive the renunciation. Had the widow solemnly appeared before that court, and renounced in the form required, she would not have been bound by it, and could therefore take no advantage of it. A fortiori she was not bound by, and could have no advantage of, that suit as a renunciation.

Then, as to the time. The suit, it is true, was brought within the year; but the decree was not rendered in her favour until several years after. Had it been decided against her, there can be no doubt that she would have asserted her claim under the will, and denied all renunciation. The suit, then, at most could not have had that effect until the decree in her favour. But that decree was pronounced nearly four years after the testator’s death, and so was not within the time required by law.

On the whole I am of opinion to affirm the decree*

*BROCKENBROUGH, J.

I concur ■ entirely in the opinion of the president.

Decree affirmed.  