
    Worsley’s Executor vs. Worsley.
    APPEAL FROM LOUISVILLE CHANCERY COURT.
    1. The husband made a deed to a trustee for the benefit of his wife, and afterwards made his will, the provisions of which were renounced by the widow: Held that as there was no provision in the deed showing that the wife was to have no more of the estate of her husband than as provided for her by the deed, that she could renounce the provisions of the will, and claim, in addition to the property deeded to her trustee, her distributive share of the estate — there being no issue of the marriage, is one-half.
    2. An executor is bound to pay to distributees a debt which he owed the testator; and is not entitled to any commission for distributing that fund.
    
      The facts of the case are fully stated in the opinion of the court. — Rep.
    
      James Speed and W. S. Bodley for appellee—
    The main question presented for the decision of the court in this case is, whether Mrs. Worsley has the right to hold the property conveyed in trust for her benefit, renounce the provisions of the will of her husband and claim her distributive share of his estate.
    As the law allowing a widow to renounce the provisions of her husband’s will (in a case like this,) was intended to secure to her one-half the husband’s estate, it was not intended to give her the right to take the one-half given, with the view to provide for her as a widow, and also one-half the remainder against the husband’s will. In a case where the first gift was made by him as the means of securing his wife at least one-half to which she was entitled, and in case he left a will, so much more as he might desire to give her.
    The deed of 1846 expressly secures to Mrs. Worsley a provision for her as widow. It expressly refers to the death of Mr. Worslejq and is designed to secure to Mrs. Worsley a part of what she was entitled to have as his widow.
    It is said Mr. Woi’sley may have intended to give his wife more than he gave by the deed. Evidently he did so intend. This may be inferred from the recital of the deed, and it is manifested by the fact that he did by his will give her the whole income from the residue of his estate during her life. She is not satisfied, but claims such farther benefit as she supposes the law will give her. This is what the husband meant to guard against by the language of the deed. Whether the recitals be regarded as operating by way of election, condition, or covenant, the intention is manifest that the widow was to have what passed by the deed, and what the husband should give by will, as and for her widow's provision 
      in his estate. If she take the gift by deed, she takes it under this condition, “that he might probably fail to make, by a valid last will, such provision for his wife as he would desireand when he did make a will making such provision for her as he desired in addition to the gift, the plain'sense of the deed was that she should be content with what was so given by him. His devise was made the measure of her rights beyond the deed, provided he made “a valid last willin case he did not the deed is silent, and there is no reason to suppose that any intention existed that she was not to take her legal share. The latter event did not happen — a valid will was made. That event was contemplated as the one in which the will was to have effect.
    The terms of the deed, though expressed by way of recital, amount to a condition, and when the gift was accepted, has the effect of a covenant to abide by the will. No different sense can be given to the recital of the objects of the deed. They were to give her a certainty if no will was made, and as part of the provision intended for her, if a valid will was made, and by it ample provision for his widow.
    The deed and will taken together, show the whole purpose of the testator in regard to the provision intended for the wife. Mrs. Worsley was covert when the deed was made, and could not accept or reject its provisions’until the husband’s death. When she accepted the provisions of the deed she accepted the will also; by renouncing the provisions of the will she also renounced the provisions of the deed. Both instruments are the acts of the husband, having in view the same object, and dictated by the same motive and intent.
    A widow now, in Kentucky, has a legal claim, which is a foundation for the doctrine that whatever the husband advances to his wife, to provide for her after his death, is not a mere bounty, but is intended, by the very act of advancement to her, to be a part satisfaction or performance of his marital obligations. See 6 Watts, 87; 2 Sargeant Rawle, 333; and Revised, Statutes, 696, sec. 17, which extends the presumption of intention to satisfy to persons other than children; and although the language extends to a particular class of cases the enactment recognizes an equitable rule of construction that applies to other cases of like kind.
    It is well settled that if a husband be under covenant to settle money on his wife, and die intestate, her distributive share of his estate is to be regarded as part satisfaction of the obligation. (See Blandy vs. Widmore, 2 Vernon, 710; 2 Pecre William, 324, which was a covenant to leave the wife £620; party died intestate; wife’s share £620; this is a satisfaction. See also Bee vs. Cox Sf D'Aranda, 3 Atkins, 519; 1 Vesey, Sr., 1; Walker vs. Walker, lb., 54.) So if the husband be under covenant to settle lands upon his wife, of a certain value, and he afterwards purchased lands arid take the conveyance to himself in fee, and die without making the settlement, that purchase will be regarded as made in performance of the covenant. (1 Bright H. W., 488; lb. 306, 451, §1 citing Tookevs. Hastings, 2 Vernon, 97; Wilcox vs. Wilcox, lb., 558; Goldsmid vs. Gold ¿raid, Swanston, 219 ; Story's Eq. Jurisprudence, section 1106, and cases cited in note, and section 1107.)
    They proceed upon the idea that when that is done which the decedent was under obligation to do, the courts will not stand upon the particular mode in which it was done, but will see that there be not a double provision, share, or satisfaction. In the language of Lord Hardwicke, (1 Vesey, 1,) “When husbands create debts of this kind the intention is that she should have it, without regarding the manner how, and the court leans against double satisfaction.”
    The case of Garthshore vs. Chalie, 10 Vesey Sr., 1, was a case of covenant that the executors should pay the widow, if she survived and had no child, five-eights, but if a child, then one-half the estate of which the husband should die possessed; nothing said about her rights in case of intestacy; on his dying intestate the court denied her claim to have both the settlement and her distributive share. The deed recited that this settlement was “for making some provision for her,” and it was contended that this was not intended to be a complete provision. (10 Vescy, 5.) But Lord Eldon held the above cited cases to be good law, and that the widow could not have both.
    The deed of 1846 being made by the husband in behalf of one “who, independent of it by the relation between them and the provision of the law attaching upon it, will take a provision,” the deed “is to be construed in reference to that.” (See 10 Vesey, 13.) And being so construed it prevents the widow from the renunciation of the provisions of the will, unless she refuses to take under the deed. The half given by the settlement being so construed to have reference to the husband’s obligation to make provision for his wife, is inconsistent with her right to take the other half against his will. Commenting upon the doctrine of satisfaction Judge Story says it is “the donation of a thing, with the intention expressed or implied that it is to be in extinguishment of some existing right or claim in the donee. It usually arises in courts of equity as a matter of presumption, where one being under. an obligation to do an act, does that by will, w'hich is capable of being considered a satisfaction of it — the thing performed being ejuidem generis with that which he engaged to perform.” (Story’s Equity, section 1099 ; see in connection with this section section 1100 and note 4, appended thereto; see Rutherford vs. Craik, 2 Hey., 262.)
    1. The principle applicable to election, in cases where dower is claimed, is not analogous to this case. The effect of the distinction which exists is clearly made by Lord Redesdale in Birmingham, vs. Kirwan, 2 Scho. 6f Lef, 452, cited with approbation in note 4 to sec. 1088, in Story’s Eq. Juris. Wills always import bounty. (1 Cruise, 128; Story’s Eq. Juris., 1100.) Deeds are contracts, import consideration.
    
      2. The nature of dower right is a right and title to and in the property; the husband cannot convey so as to defeat it; it'belongs not to him, but to the wife; the title of the wife is paramount to the title of the husband. -{Adset vs. Adset, 2 Johnson’s Chancery Reports, 451, per Kent.)
    
    It is not necessary that a provision for the wife should be expressly stated to be in lieu or satisfaction of dower; it will be sufficient if it can be clearly collected frem the instrument to be so intended. (See BHght on Husband and Wife, 1 volume, section 9, pages 450,451; lb., sections 13 and 14; Hamilton vs. Jackson, 2 Jones Sf L. at page 295.)
    The rules on this subject are now changed to some ■extent by the Revised Statutes, page 281, section 13.
    Every case of election pre-supposes “a plurality -of gifts or rights, with an intention, expressed or implied, of the party who has the right to control one or both, and that one should be a substitute for the other. The party who is to take must choose, but he ■cannot enjoy both.” {Story’s Eq. Jurisprudence, sec. 1075, note 1; 1 Bright on Husband and Wife, 547; Moore vs. Butler, 2 Sclm. dj- Lef., 267; '2 'Scho. Sf Lcf.., 449-50.)
    The deed of 1846, in this case, presents a case for election. There is a plurality of rights in the widow ; one is the right to the property it conveys to her, the other the right to renounce the will. She must choose; she cannot have the rights under both; to accept the benefit and decline the burden is to defraud the designs of the donor. (Story’s Eq. Jurisprudence, sec. 1077.)
    The answer properly insists that if Mrs. Worsley has accepted the provisions of the deed since the death of her husband, she cannot renounce the provisions of the will, or if she has the right to renounce the will that is or should be treated as a renunciation of the deed also. If she is not barred by the acceptance of the deed from renouncing the will, when she do.es renounce the will she must bring the property in the deed into account. The deed is testa- * mentary in its character; it made a disposition of property in view of death, and makes a provision for after events; it was a provision for the wife after the death of the husband ; the deed was in some sense a testamentary paper.
    It is insisted that Mrs. Worsley is bound to make an election; she cannot have both the provision made by the deed and claim' against the will, but must elect between them, or else bring the advancement into account, as part of her legal half of the estate.
    
      Bland Ballard for appellee—
    The appellants insist that the deed made by W. W. Worsley, in 1846, conveying a part of his estate to his wife, is of a testamentary character, and is to be taken in connection with his will, and both together, as showing, the provision intended to be made for Mrs. Worsley; and that Mrs. Worsley cannot be permitted to take the benefit of the deed and renounce the provision made for her by the will, and claim a distributive share of the whole estate.
    This defense involves two propositions. The first, that the paper dated in November, 1846, and that dated in June, 1847, are together the will of W. W. Worsley, and that the widow cannot renounce the provisions of the will. This proposition is regarded as absurd. The statute gives a widow the right to renounce the provisions of her husband’s will. To contend that a will, if it exist on two papers instead of one, cannot be renounced, is a proposition, which cannot be maintained.
    Secondly it is argued, that if the widow can re* nounce that such renunciation will, affect her right to the property conveyed by the deed of 1846. There is nothing in the statute allowing a partial renunciation ; and if it be admitted that the paper here called a deed and that called a will together constitutes the will of Mrs. Worsley, I think it may be conceded either that the renunciation which has been made is ineffectual, or that it applies to the whole will. But in order that the renunciation shall apply to the deed of 1846, the terms of the proposition require that the instrument should not be a deed but a testamentary instrument — that is, a will. There is nothing in the paper to give to it the character of a testamentary instrument; it is called a deed,, and it has all the qualities of a deed — 1st. It took effect immediately upon its execution. 2d. It was irrevocable. 3d. It has none of the' forms of a will, or witnessed as a will, or proved as a will.
    It is entirely certain that Mrs. Worsley did not intend to renounce the provision made for her by this deed, and it is equally certain that her renunciation did not have that effect, because, 1st. The deed is not the will. 2. The renunciation is to the paper dated in 1847 — the will. And if it be true that when Mrs. Worsley became discovert, in 1847, she might have refused to hold under the deed, she did not do it or make any disclaimer.
    It is said that this case presents the case where the party is bound to make an election ; in which Mrs. Worsley cannot renounce the provisions of the will without a surrender of what passed to her by the deed, and if she refuses that she must claim no share of the personal estate.
    It is denied that any case requiring an election is presented. Such cases exist only where something is given by will or deed to one who is entitled to some other thing disposed of by the same instrument to another. In such case the devisee or grantee is put to his election whether he will take that which is given or retain that to which he has claim. Mrs. Worsley claims nothing under the will of her husband, and therefore no case requiring an election can arise. A case for election may arise where there is a condition annexed to a devise or grant, with which the devisee or grantee must comply or not take under the devise or grant. There is no condi'cion annexed to the deed of 1846 which requires Mrs. Worsley to surrender any right or claim. No case has been found where an election has been required except where the condition was positive, express.
    The uniform adjudications have been that no devise — and the same doctrine applies to deeds — will ever be held to be in satisfaction of dower unless it be expressly so, or the intention clear and manifest. To establish such implied intention the claim of dower must be clearly repugnant to the will — it must disturb the will. It is not enough that the matter is doubtful whether the testator had in contemplation that his widow should take both estates — she will not be required to do that unless it be clear that he designed she should not enjoy both provisions. (Adset vs. Adset, 2 Johnson's Chancery Reports, 448 ; 4 Johnson's Chancery Reports, 9; Timberlake vs. Parish's ex'or, 5 Dana, 345 ; see also English and American note to the case of Streatficld vs. Streapield, Leading Cases in Equity, 1st vol.,page 283; Birmingham vs. Kirwan, 2 Scho. Lefroy, 442; see also Ellis vs. Lewis, 3 Hare, 310; French vs. Davis, 1 Vesey, Jr., 572; Pitts vs Snowden, 1 Bro. Chancery Cases, 292; Pearson vs. Pearson, lb., 291.)
    Though a will giving a provision give it expressly, “in lieu of dower, inheritance, or other claim on her part,” the wife may take such provision and also her share in after-acquired lands. (Hall vs. Hall, 2 Me-Chord's Chancery Reports, 269, 299, 306.)
    In this case there is not the slightest intimation that Mrs. Worsley is to have no more of the estate of the grantor than that which passed by the deed, and that it was to be in bar of dower or distributive share in the remainder of the estate of the husband; on the contrary a different intent is clearly apparent both fx’om the deed and the will, dated only a few months after the deed, in which was a large provision for the wife.
    
      The right of dower, and of a distributive share of the estate of the husband are both legal rights ; the husband can no more bar the one than the other.— All the authorities in respect to the provisions which will bar a dower claim equally apply to the claim of the widow to her distributive share of the personal estate. In England the case is different; there the widow has no distributive share in the ¡personalty unless the husband die intestate. The English statutes do not allow a renunciation. The only English cases having any application to this case are such as relate to dower, and not those relating to the distributive share of the widow.
    The deed makes no reference to any condition which is to be performed by the widow, and on which her right to a distributive share is to depend after the deed of 1846. The property passed by that deed was no part of W. W. Worsley’s estate. His will could have no operation upon it, and the renunciation of the provisions of the will by the widow could have no effect upon her rights in the estate of the testator at his death.
    
      M. C. Johnson on the same side — -
    The only ground urged by appellants’ counsel for a reversal of the judgment of the chancellor is that contained in the fifth paragraph of the answer. It is in substance that the terms and implied conditions contained in the deed of W. W. Worsley conveying properiy in trust to his wife, dated in November, 1846, preclude the appellee, Mrs. Worsley, from retaining the benefit of that deed, and renouncing the provisions of the will.
    It is not denied that Mr. Worsley had the right to impose such a condition, and if an intention to impose.such a condition is expressed in the deed, or can be legitimately inferred from its recitals, it is not doubted that the condition can be inforced by compelling the widow to elect between abiding by the will and surrendering the property embraced in the deed, or by applying tbe value of tbe property conveyed by the deed of trust, either wholly or partially, to the satisfaction of her legal interest as widow. It is admitted by appellants’ counsel that there is no such condition expressed, but it is contended that such a condition is to be implied from the recitals in the deed. They say that such was certainly the intention of Mr. Worsley, and we concede that if they show such an intention from the deed itself their proposition is established. This is believed to be the only issue in the case, and to this question the great body of the authorities cited by appellants’ counsel is directed.
    The deed conveys to Thomas S. Forman a house and lot, and some servants, for the sole and separate use of Mrs. Worsley, the wife of the grantor, in fee simple, subject to the use, for life, of the grantor, Mr. Worsley, in the event of his surviving his wife.— The object of the deed, as therein expressed, was “to provide, with certainty, a good home for his beloved wife.” The reason expressed in the deed for making this provision, “by an executed deed,” was “that from the uncertainty of life, and other casualties, he might possibly fail to make, by valid last will, such provision for his wife as he would desire.” It is from these recitals of his object and reasons the condition is to be implied.
    No intention is perceived, from these recitals, to impose any condition upon this bounty to the wife, or that they contain, expressly or impliedly, any power to the grantor, by a future will, to render this bounty less absolute and unconditional. Mr. Worsley must be regarded as knowing the provision made by law for his wife in case she survived him, and as knowing that, unless she survived him she had no legal right to his estate, real or personal. The deed shows that he did not consider those legal rights adequate to the just claims of his wife with whom Providence had blessed him, and he therefore gave her at once a good home, consisting of his residence and household servants, to be hers immediately and forever, whether she survived him or not. This cannot be called a provision for Mrs. Worsley as a widow; it is a gift to her as a wife, made as well to supply the absence of all legal right in case he survived her as the insufficiency of her legal right in case she survived him.
    It is not contended by appellant that this deed would impair her legal right in case Mr. Worsley had died intestate, and that she could not have claimed her distributive share of his estate, but that it does sustain any will he might afterwards make, to the extent that she should abide by it or give up the benefit of the deed. The main argument in favor of the proposition is that this deed, and a will executed some six months afterwards, are to be regarded as one instrument, “being the offspring of a single intent or motive.” Instruments executed at the same time are sometimes construed together as one. It is something new to weld together two instruments of different characters, executed six months apart, and neither referring to the other — on the contrary, the deed reciting the possibility of no will being made as one of the motives for making the deed, and not making at that time a will, which would have been a shorter and more easily executed instrument, rather proves that his mind was not then fully made up as to what will he would make, or whether he would make any at all. The will and deed “being the offspring of a single intent or motive,” must be regarded as rather of the private knowledge of the appellant and his counsel, and not inferable from the instruments themselves, or from any evidence in the record. Whether Mr. Worsley, when he made the deed, had any fixed purpose to make a will, or how he would dispose of the remainder of his property, or how often he may have changed his intention in six months, is not shown by any proof, and, as we conceive, was not known to any one but himself.
    
      Much stress is laid upon the fact, which is assumed, that the two instruments are to be taken as one ■ — as being the offspring of one and the same intent ■and motive — yet if the condition of the deed be that Mrs. Worsley should abide by the grantor’s will, in case he made one, then it does not matter how often he should change his intent and motive; his “valid will,” no matter when made, or how often changed, must be abided by or the trust property forfeited. This principle, that a valid deed, operating in presentí, cannot be changed or impaired by the grantor by any subsequent act, unless the power to do so is ■contained in the deed itself, is too familiar to require illustration or authority to support it. The position assumed, that this will, the sole act of the grantor, made six months after, can be used in giving construction to the. deed, or of infusing into the deed conditions or terms prejudicial to the grantee, is a disguised denial of that principle.
    Although, as contended by appellants, the deed and will may show what provision Mr. Worsley intended to make for his widow at the time the will was written, they do not show what he desired when the deed was made, which desire is the only one that could have any effect upon the construction of the deed.
    The authorities referred to 'fey my adjunct show that the law implies no such condition as that contended for; that gifts of this kind to a wife do not put her upon her election between her legal rights and the gift, nor do they operate in whole or in part satisfaction of those rights.
    The appellants seek to avoid the force of those authorities — 1. By urging that the English authorities, in regard to her distributive share, are not in point, because in England the wife had no legal right in the husband’s personal estate at his death. 2. In regard to dower, the decisions do not apply, because the wife has a legal right of dower. It is suggested that appellants’ arguments do not harmonize.
    
      The appellants rely upon the doctrine that advancements and gifts by a parent to a child are construed as made in satisfaction of the moral or imperfect right of the child to a provision from the parent, as applicable to this case. We think they overlook the rule that this doctrine of advancement only applies when there is more than one child, and that a husband can have but one wife at a time, and but one legal widow. The relation'of husband and wife has no analogies outside of itself. The circumstances of that relation admit of endless variety in the moral duty and motive of the husband in the provision he may make for his wife. It is a full motive for the absolute gift, by the husband, of his whole estate, while on the other hand it explains the desire of some to deprive the wife of every dollar of her rights in his estate.- Every shade of difference between these extremes is found to exist. No inference, therefore, can be drawn from a gift by the husband to the wife, other than that it is a bounty, unless it is otherwise expressed or otherwise provided by law.
    The only authorities cited by appellants bearing on the relation of husband and wife, are decisions in regard to the satisfaction of covenants .or executory agreements by a husband to make certain provisions for his wife — as for example, to settle lands of a certain annual value being satisfied by a conveyance, in fee, of lands of that value, or covenant to leave, at his death, a sum of money to his wife is satisfied by her distributive share in his estate, to that or a greater amount.
    We make the following brief comments on these decisions:
    1. They are executory contracts, in which a greater flexibility of construction is allowed than in executed agreements.
    2. If applied to this case they would sustain the position that the deed of 1846 should be a satisfaction, wholly or in part, of the widow’s legal right of distribution in Mr. Worsley’s estate in case of intestacy, which the appellants themselves repudiate.
    3. Satisfaction is only implied when the thing given, and the right to be satisfied are ejusdem generis —that is, land can only operate as an implied satisfaction for land, and personal property for the right to personal property; land cannot so operate for a right to personal property, and vice versa. (See 8 B. Monroe.) Here the conveyance was of land and slaves, (slaves being in 1846, real estate for most purposes.) To operate at all this conveyance must operate as a satisfaction — as a satisfaction for a right to personal property or money.
    The liberality of Mr. Worsley to his wife is justly lauded. His bounty to the Timberlake family may be regarded as a farther bounty to his wife; they were her relations, not his.
    December 24.
   Judge Sijipson

delivered the opinion of'the Court.

In November, 1846, William W. Worsley conveyed to a trustee, for the separate use and benefit of his wife, Rebecca Worsley, a house and lot in the city of Louisville, and also several slaves. He subsequently, in ihe month of June, 1847, made a will, which after his death in 1852, was proved and admitted to record. His wife Rebecca, who survived him, having within the time prescribed by law, renounced the provisions of his will, so far as they were for her benefit, brought this equitable action against the executor for her distributable portion of the estate.

Her claim is resisted on the ground that, as her husband during his lifetime made a provision for her out of his estate, she has no right to any part of the remainder of it, except such part thereof as he thought proper to bequeath to her. Or in other words, that according to the terms of the deed, she cannot hold under it, and also claim in opposition to the will, by exercising the widow’s right of renunciation, and claiming her distributable portion of the-estate.

I.. The husband made a deed to a trustee for the benefit of his wife, and afterwards made his will, the provisions of which were renounced by the widow: Held, that as there was no provision in the deed showing that the wife was to have no more of the estate of the husband than as provided for her by the deed, that she could renounce the provisions of the will, and' claim in addition to the property deeded to her trustee, her distributive share of the estate— there being no issue of the marriage is one-half.

According to the recitals in the deed of trust, it was-executed by the grantor “to provide with certainty a good home for his beloved wife,” and it was deemed by him prudent and proper to do so in his lifetime, because “from the uncertainty of life, and other casualties, he might possibly fail to - make such provision for her, by a valid last will and testament, as he would desire.” The deed does not contain any other recital, or any other provision which indicates an intention on tie part of the grantor that the conveyance was made for the purpose of investing his wife with the whole of that part of his estate which he designed her to have, and such an intention cannot be deduced from anything contained in the deed, unless it can be implied from the foregoing recitals-therein. So far, however, are they from authorizing such a deduction, that they clearly indicate a different intention, and not only demonstrate the grantor’s-desire that his wife should be secured in a home, but also that she should have an additional portion of his estate besides that therein conveyed to her. Indeed, according to the language of the deed, a case of intestacy seems to have been contemplated by the grantor, and the estate therein conveyed for the benefit of the wife, was to supply the deficiency which in bis opinion would exist in such an event, in consequence of the inadequacy of the provision which the-law would make for her.

The grantor certainly bad the power to have made1 the estate conveyed to his wife conditional, if he had thought proper to do so, and he might have inserted in the deed an express defeasance in the event that she claimed any part of his estate after his death; or if such were his intention, he could have stated that the separate estate with which he thereby invested her, was to be all that she was to have out of his estate at any time. But the deed does not contain a condition of any kind, nor any recital or provision evincing an intention on the part of the testator that she was not to have any more of his estate than was therein conveyed.

We have considered the deed, in determining its legal effect, without any reference to the will which the grantor subsequently made, because the deed is not testamentary in its character, but is absolute and irrevocable, and its provisions could not be affected nor modified in any manner by the future acts of the grantor. It took effect immediately on its execution, and had nothing testamentary either in its character or its operation. The testacy or intestacy of the grantor could not affect to any extent the rights which the wife acquired under it, they having been created and defined by the deed itself.

It is, however, contended that in equity the estate conveyed to the wife should be regarded as a satisfaction of her legal right to demand a portion of her husband’s estate after his death, and cases have been referred to where the wife’s distributive share of his estate has been deemed a satisfaction of his covenant or obligation to leave her so much money, or a certain specified part of his estate. But the cases are not at all analagous. Here there was no covenant by the husband to leave money or property to the wife. He had conveyed to her part of his estate which he designed her to have for a certain purpose, by an absolute and unconditional deed. This was a mere gratuity on his part. It could not satisfy any claim she had upon him for a portion of his personal estate at his death, for no such claim existed at the time the deed was executed. He had a right during his lifetime to dispose of his personal estate as he pleased without her consent, provided such disposition took effect before his death, and consequently she had no legal claim to any part of it at the time the deed was executed. Her claim did not accrue until his death, and that claim cannot be considered as satisfied by a donation made to her at the time the claim itself had no existence.

2. An executor is bound to pay to distributees a debt which he owed the testator, and is not entitled to any commission for distributing that fund.

Neither has the doctrine of election any application in this case, except so far as the widow had by law to elect to take under the will, or to renounce its provisions, and claim her portion as a distributee of her husband’s estate. There is no incompatibility in holding under the deed, and claiming her portion as distributee. She was under no obligations to abide by her husband’s will. The deed did not impose any sncb obligation upon her, either expressly or by implication, nor did the law, but by it she was invested with the right which she exercised, of renouncing the provisions of the will. In our opinion, therefore, she is entitled as widow, there being no children, to one-half of the estate in the hands of the executor.

So far as the executor was indebted to his testator at the time of his death, neither his duties nor his responsibilities have been increased by the assumption of the office of executor. It was his duty as a debtor to pay the amount be owed to the person legally entitled to receive it, and no other duty has devolved upon him as executor. The chancellor, therefore, properly refused to allow him any commission on this part of the estate in his hands.

Wherefore, the decree is affirmed.  