
    Taylor and Wife v. Browne and Others.
    November, 1830.
    Will — Disposition of Property Settled upon Wife. — B. makes a deed of settlement of property upon His wife, and then by will makes a disposition of the property, different from that made by the deed of settlement, and far less beneficial to the wife, and dies ; the wife takes administration with the will annexed:
    Same — Same—Right of Widow. — Hekd, 1. the -widow may claim under the deed of settlement, without having- renounced the provision made for her by the will according to the statute, 1 Rev. Code, ch. 104, § 26.
    Shme — Same—Election.—And, 2. the widow taking administration with the will annexed, is not an election by her to take under the will and not to claim under the deed of settlement.
    William Browne deceased, by deed executed in his lifetime, dated, the 9th January 1812, and duly recorded in the hustings court of Richmond the 13th July following, in consideration of natural love and affection for his wife, Mary Browne, conveyed to William Kettles, trustee, ten slaves, sundry articles of furniture, and some stock of horses, cows &c. in trust for the sole and separate use of Mary his wife for life, free and exempt from the control of her then husband the donor, or any future husband, with power to the wife to dispose of the subject by will or deed to such persons as she should think proper.
    ^William Browne, died sometime in November 1816, having made a will in the month of October preceding; whereby he devised his lands to his wife during her life or widowhood, remainder, after her death or marriage, to his brother Thomas Browne and his heirs: and he disposed of the property settled on his wife by the deed of January 1812; bequeathing four of the slaves therein mentioned, to her in absolute property; and the residue of the slaves, together with all his personal property, to her during her life or widowhood, and in case she should marry, then that this part of the subject should be sold, and that three female slaves, from six to twelve years old, should be purchased out of the proceeds, one for Eliz.- Marston, one for Eliz. Durfey, and one for Eliz. Nettles, and that the residue of the proceeds should be equally divided between Thomas Browne, Caroline Radcliffe, and Susan Smith; but in case his wife should die his widow, she should have the free disposal of all the personal estate bequeathed to her during life or widowhood, at her own discretion; and he expressed his hope and belief, that if she should die his widow, she would comply with his wishes in the disposal of the said property as above mentioned.
    The will was proved in the hustings court of Richmond; and the executors-named in the will (of whom the widow was one) having renounced the executorship, administration with the will annexed was granted to the widow.
    Mrs. Browne, the widow, married Henley Taylor, in August 1817; and, on the 25th of that month, she executed a deed, whereby she disclaimed the provision made for her by her first husband’s will, and relinquished all benefit or claim under it. And on the 20th October following, her husband Henley Taylor and she joined in a deed of renunciation to the same effect. Both these instruments were duly recorded in the hustings court of Richmond, within the year after the death of the testator William Browne.
    Thomas Browne and the other legatees in remainder of the testator William Browne, exhibited a bill in the superiour *court of chancery of Richmond, against Taylor and wife, charging, that the deed of January 1812 was made without any lawful consideration, and was therefore void; and if it was not so, yet the widow of the testator in taking administration with the will annexed, had elected to take under the will, and could not now claim under the deed. They, therefore claimed all the property which, was bequeathed by the will to the wife during widowhood, with remainder in the event of her marriage to them, and prayed an account of the administration &c.
    Taylor and wife in their answer, stated that the wife had duly renounced the provision made for her by her first husband’s will; and that, even without any such renunciation, they had a right to .claim under the deed of January 1812; which, though voluntary, was good and effectual as against the donor and volunteers claiming under him: that the wife’s taking the administration with the will annexed, was not an election to abide by the will, and not to claim under the deed, nor had she otherwise made such election: and that they were ready to account for all the estate of the testator, except that which was settled on his wife by the deed of 1812; but they claimed, under that deed, all the property thereby conveyed.
    The first of the instruments of renunciation above mentioned, that of the 25th August 1817, which was executed by Mrs. Taylor alone, was filed as an exhibit in the cause, at the time of the hearing and of the interlocutory decree made therein. But the other deed of renunciation of the 20th October 1817, in which Taylor the husband joined with his wife, was not then exhibited: it was filed after the decree was entered, and subjoined to the transcript of the record sent to this court, by the clerk.
    In order to prove, that Mrs. Taylor had elected to take under her first husband’s will, and not under the deed of January 1812, the plaintiffs adduced the deposition of one of the appraisers, of the testator’s estate, that the property 'mentioned in the deed was appraised as part of the estate. The appraisement itself was not exhibited.
    The chancellor held, that Mrs. Taylor was bound to abide by the provision made for her by her first husband’s will, and could not claim against the will, and under the deed of January 1812, unless she had duly renounced the provision made for her by the will, according to the statute, 1 Rev. Code, ch. 104, § 26, p. 381. And taking up the case upon the deed of renunciation of the 25th August 1817, he held, that that deed was ineffectual, because Mrs. Taylor was at that time a married woman, and the deed was executed by her alone without her husband joining in it. Therefore, he held, that the plaintiffs were entitled to the property bequeathed by the will of the testator William Browne, to his wife during her widowhood, with remainder in case of her marrying again to them; and ordered the defendants to render an account of the estate, and of the administration thereof, in the same manner as if the deed of January 1812 had never been made.
    From this decree Taylor and wife appealed to this court.
    The cause was argued here, by Leigh for the appellants, and the attorney general for the appellees,
    upon two points: 1. Whether Mrs. Taylor could claim under the deed of January 1812, without having renounced the provision made *for her by the will of her first husband, William Browne, in due time and form, according to the provisions of the statute? In other words, whether the statute applied to the case? 2. Whether Mrs. Taylor, in taking administration of Browne’s estate with the will annexed, or by causing or permitting the property in question to be appraised as part of his estate (if the fact was so), had elected to take under his will, and precluded herself from claiming under the deed of January 1812?
    
      
      Election by Widow. — See the principal case cited in Dixon v. McCue, 14 Gratt. 562.
    
    
      
      The words oí the statute are: “When any widow shall not be satisfied with the provision 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 ot the will as aforesaid, or by need 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 &c. and she shall, moreover, be entitled to such share of his other personal estate, as if he had died intestate, to hold 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.’’— Note in Original Edition.
    
   CARR, J.,

delivered ti e opinion of the court. The chancellor, in rejecting the claim of the appellants under the deed of January 1812, seems to have been governed wholly by the supposed failure of the wife to renounce in due and binding form, according to the terms of the statute, the provision made for the wife by the will of her first h'usband William Browne. As to the validity of the act of renunciation, we give no opinion. The provisions of the statute have, in our judgment, no application to the case. They were only intended to direct, how a widow shall proceed, who means to reject the provision made by her husband’s will, and take that made by the law: but this can relate only to the slaves and personal estate of the husband ; and so are the express words of the statute. It does not mean, that unless the widow renounces the will, she shall be prevented from making claim to property to which she is entitled, not under the will, but from a different source. With respect to such property, if it really belongs to the wife, and the husband has undertaken to dispose of it by will, this statute cannot govern the case: it must stand on the general doctrine of election, which disables a person from claiming under a will and against it. In Wallace v. Taliaferro, 2 Call, 447, this court required no renunciation of the will, but decided, that a husband could not devise slaves which he claimed in right of his wife, unless they were reduced into possession during the coverture. In Upshaw v. Upshaw, 2 Hen. & Munf. 381, the wife was entitled to slaves, in which her mother *had a dower right; the husband during the mother’s life devised these slaves away from the wife, but left her all his other property during her life; she took the provision made for her by the will; and on the death of her mother, took also the slaves, which her husband had devised away, and held the whole for many years: she was sued by the devisees of the slaves: this court held, it was a case of election; that the wife could not hold under the will, and yet disappoint its provisions as to the slaves; but they said also, that to make an election binding, a party must have a clear knowledge of his rights and of the funds; and, therefore, though the wife had held the estate given her by the will for twenty years, they would have been inclined even then (as she seemed to have acted in ignorance of her rights, and the consequences of her holding) to have given her the power of election if she had not so appropriated a part of the property she held under the will, as to disable her from returning it. These cases shew (if, indeed, anything can shew it more plainly than the statute itself) that the provision in question concerning a widow’s renunciation of her husband’s will, has nothing to do with a case, where she has a claim to property independent of and paramount to the will. In this case, the widow claimed under the deed of 1812. That deed is charged by the bill as being-fraudulent, and if creditors were before the court, it would no doubt be so considered as to them. But there is nothing shewn, which, as between the parties and volunteers claiming under them, can affect it in the slightest degree. It was contended that the qualification of the widow as adminis-tratrix with the will annexed, was such an election to take under the will, as precluded her from afterwards resorting to the deed. We do not think so. Her duty as adminis-tratrix was well and truly to execute the will, by paying first the debts, and then the legacies, as far as the goods, chattels and credits of the testator would extend, and the law charge her. But this related solely to-the property of the testator: the law could charge her no farther. And even if this could *be considered an election, at the time, to abide by the will, we see that, before any change in the state of things was made, within twelve months, there was a decision not to take under the will, but to abide by the deed: the renunciation of the wife, made and recorded, followed by an act of renunciation by her and her second husband solemnly executed, though not called for by the statute, is surely sufficient evidence of this.

rhe decree is to be reversed with costs, so far as it directs an account of the property contained in the deed of 1812, and affirmed as to the residue, and the cause remanded, to be proceeded in according to the principles here declared.  