
    McALLISTER’S EXECUTOR vs. McALLISTER.
    JfcnX IN EQUITY BY widow, AFTER ALLOTMENT OF DOWER, FOR RECOVERY •OF RENTS, OR MESNE PROFITS.]
    3. Extent of widow's quarantine. — A plantation, about five milos distant from the town in which the husband, resided at the time of his death, ■from whioh he drew his supplies and derived his entire income, and the superintendence of which constituted his only business, is not so .connected with his residence, (Code, § 1359,) as to entitle the widow to the possession or rents thereof until her dower is assigned. (A. J. Walker, C. J., dissenting.)
    
    
      Ü. Jurisdiction of equity to award mesne profits, and measure thereof. — After dower has been allotted to the widbw by the probate court, she may como into equity to recover damages for its detention; and the measure of tier damages, where the husband le.ft no descendants, would be one-half of the rent, from the death of her husband, until the assignment of dower.
    
      3. Equitable set-off against claim for mesne profits. — If tlie executor carries on the plantation of tlie deceased husband with the labor of the slaves, pays all the debts and expenses of administration out of the income, thereby saving the entire personal estate for distribution, and'distributes to- the widow, under an order of the probate court, her distributive share of the residue of such income, this constitutes no defense-to the widow’s claim for mesne profitsyet, if. he acted in good faith, he is- entitled to a credit out of the assets- for the amount of damages' recovered from him by her; and ifttlie amount received by her as a distributee exceeds her proper share, t'o be ascertained after deducting the-amount of her recovery from the-ehtire fund for distribution, he-may, under appropriate pleadingsi recover the balance-from. her, and. have it adjusted in the suit for mesne profits.
    Appeal from the Chancery Court of Marengo..
    Heard before the Hon. Wade Heyes.
    The bill in this case was filed'' by Mrs. -Agnes McAllister,' the widow of William McAllister,, deceased, against the-executor of said decedent, to recover the<rensfcs of the plantation belonging to the decedent', fronii the time of. his death until her dower was assigned to her under am order of the probate court.. The decedent died in-October, 1858, leaving no children or their descendants ;i having executed and published bis last will and testament, which was duly admitted to probate after his death, and* of which Lewis B. McCarty, the- defendant, was-appointed the executor; and being seized and possessed.of a house and lot in the town of Demopolis, in which he resided at the time of his death, and a plantation about five miles distant in tbe country, which contained about eight hundred acres. The widow dissented-from the will, within the time prescribed by the statute,, and afterwards instituted proceedings in the probate court for an allotment of her dower ; and her dower was allotted to her, by commissioners appointed by said probate court, on the 14th January, 1856. The bill alleged, that the decedent “resided on and cultivated said plantation, from the year 1826, until January, 1851, when he removed to the town of Demopolis, (about five miles distant therefrom,) for the Sake of-comfort and society, and for no other purpose; that he continued the cultivation of said plantation as before, was engaged in no otlier business than that of planting, derived all his income from- said plantation to the time of his death, and all the supplies for the support and consumption of his family, except, sugar, coffee, and similar articles of foreign export, as well- after as before his said removal to Demopolis ; that said plantation was in fact, at the time of his death, but an appurtenance to bis residence in the town of Demopolis, and connected therewith j” and that said executor had been in the possession of said plantation, .and in receipt of the rente and profits thereof, from the time of his appointment and qualification -..-The complainant claimed that she was “entitled to the rents of- -said-eutire-plant-ation, from and after her husband’s death, until dower was assigned her, under and by virtue-of her right to the -,-possession -thereof until the-assjgnment -of her dower, together -with interest on said rentsand.added the general prayer, for-other and further relief.
    The .executor-filed an answer to-, the bill? denying -that-the plantation was appurtenant to the decedent’s residence, or connected therewith, or that the complainant was entitled to any portion of the rents; but admitting all tbe other, allegations of the bill. He alleged, also,-by way of defense, that with'the proceeds.of-the crops-raised on tbe plantation he had paid all the debts of .tbe estate,,with the expenses of-administration, and, .under an order .of. the probate court, .liad distributed one-half .of /the residue to the complainant, as. a part of her distributive-share.of the personalty ; and he insisted, that she was. thereby estopped from asserting any claim to the rents.
    By agreement between the parties, it was admitted, “that the decedent drew all of his supplies from said plantation during his life-time, and owed money and large debts at the time of his death; that the defendant, as. executor, had cultivated four hundred and thirty-five acres of said plantation, from 21st August, 1S54, until the,14-th December, 18-56, when the complainant’s dower was assigned to her ; that said land was worth, by way of rent, $2'é(bpei’ acre ; that the crops raised on said land by said defendant, during the time aforesaid, were sold by him for $5,101 58, of which amount $3,553 43 was applied by him to the payment of debts, being, all the debts of the estate ; that the complainant dissented from the will, and took one-half of the property after the payment-of debts ; that a balance of $1,875 06, after payment .oh-debts*-was left in said defendant’s hands, arising fromthe'proceeds of said crops, as ascertained by a decree of the probate court of said county, on a settlement had 'before the institution of this suit i and that one-half- of this amount, $937 83, was decreed to complainant on said settlement, and paid to her by said defendant-.”
    • On final hearing, on-bill, answer, and admitted facts, the chancellor- held the complainant entitled to thfe entire rents of the plantation, and ordered an account to be taken by the-master ,• and his decree is now assigned as error.
    
    -I. W. -G-arrott, .-for appellant.
    JNO. T. Lomax, contra.
    
   A. J. WALKER, C. J.

The-complainant’s deceaséd husband removed from bis plantation, in 1851, to a town distant about five miles, and thenceforward until his death, in lo53, resided in the town ; drawing his supplies from the plantation, having no business save the superintendence of the plantation, and no -income except from the planta-' ¿ion. -The majority of the court- are of the opinion, that the plantation of the deceased was not, within the meaning of section 1359- of the - Code, “connected with the dwelling-house where the deceased most usually-resided next before Ms death," and that the widow was not entitled to the possession of the plantation until her dower was assigned hex. They flunk, that the same reasoning which would make the plantation so connected in this case, would -producé-the same-result if the planfcatioivwere a hundred miles-distant from the residence, and would give the widow the possession, as her-quarantine, of two or more plantations within a, few miles.- of the residence. They think, that to bold the plantation in this case to be within the statute, would be inconsistent with the spirits and intent'of the law, and would establish a precedent-which might, lead to most unjust and unreasonable consequences.. In would myself prefer-a different, conclusion, and I think the previous decisions-of? this court; sustain'the widow’s right to possess the plantation until her clow-er was assigned. — Pinckard v. Pinckard, 24 Ala. 250 ; Smith v. Smith, 13 Ala. 329.

The complainant had-fa right to- come into chancery to-recover damages for the detentiom-of her dower and the measure of her damages would be one-half the rent, (the deceased having left- no descendants,) from the husband’s death, until the dower was assigned. — Perrine v. Perrine, 35 Ala. 644 ; Slatter v. Meek, ib. 528 Smith v. Smith, 13 Ala. 329-336.

As a defense to this suit, it is said by the defendant, that he carried on thé plantation, and from the income he discharged the debts of the estate, leaving the entire personalty to be divided ; that there was a large balance in his hands, after the payment of the debts- and expenses of administration ; and that one-half of this- balance was, under a decree of the probate court, paid to the complainant. The argument, we suppose, is, that.-the com? plainant, in having the income of the plantation appropriated to, the payment, of the. debts, of the estate, and the personalty- thus, saved from sale to pay, the debts, and in, receiving, one-half the balance of the income, has received-;, the benefit of, one-half the rent, of the land. The income-from the plantation was the product of the soil, the labor-, of the slaves and animals, the. implements.of husbandry¿ and the skill and-industry of the supervisor, un&istinguish-.. ably commingled. It- is not true, therefore, that the income stood to the,, complainant,, in the place of the rent*of the. land. It was the product of the commingled elements-, above stated, one of which-,was .the use of the land ; and to one-lralf the benefit of aü the others she was entitled as, a, distributee of the estate.. By virtue of a right altogether.distinct from her dower, she was entitled to her-distributive share, after the payment of debts and expenses, in* the product of all the agencies employed, except the use of the land ; and to one-half, that she was as dowress entitled. The doctrine of election obliges a party,.having inconsistent rights, to choose between them. No such inconsistent rights exist, here, between which a choice could have been., made. The complainant, could, not have given up the income derived from the land, or the benefit accruing to her from, the discharge of debts and expenses- out of it, without at the'same time yielding, up-her right as a dis-tributee, which she could not be required to do.

If, however, the executor in good faith cultivated the land, and the distributees have accepted the benefit offhis use of the land;, he is entitled to a credit out of the assets for the rent which maybe recovered from him by the complainant. — McCreliss v. Hinkle, 17 Ala. 459 ; Gerald v. Bunkley, ib. 170. And if, upon the recovery by the complainant of hen rents, it should be the case, that, with the charge upon, the estate thus superadded, the amount received by the complainant, as a distributee, should exceed her share, then the defendant would be entitled to recover the excess from her. — Sellers v. Smith, 11 Ala. 264. Should the defendant have such right against the complainant, we see no reason,why the balance should not be adjusted in this case ,- and if necessary,, the pleadings may be amended for that purpose.

Reversed and remanded;  