
    HERBERT AND OTHERS v. WREN AND WIFE AND OTHERS.
    
      Present...-,Ml the, Judges except Todd, «7.
    Courts ' of Chancery have concurrent jurisdiction' with Courts of law, In cases of tíower, especially, where-j^rtition, .disco•yery, or . account is prayed, and in cases Of sale where the patitie# áre willwfc that a 'sum in gross iihould be given in lieu of ddwer.
    Í& a devise of land in. Virginia to the widow, appear from: circumstances to be intended in. lieu of dower,1 flhera'ustmake her election, and cannot * take both. If a wife join her husband in ^aae for ^«InStied to dower in the
    
      ERROR to the Circuit-Court.for the district of Columbia, sitting at Alexafidria, in a suit in Cliancéry brought by Richard Wren, and Susanna, his wife, who was the widow of Lewis Hipkins', deceased, and John and Westley Adams, her trustees, against W. Herberty T. Swann, R.,B. Lee, and W. B. Page, (trustees of Philip R. Fendall, deceased) and E. I. Lee, Jos. Deane and Ft Green.
    The case was stated by Marshall Ch. J. (in delivering the opinion of the Court) as follows:
    This suit was' brought by Richard Wren,, and Susanna, his wifey formerly the wife qf Lewis Hipkins, praying that dower may be assigned her ip a tract of land of which her former husband died seized, and which has since been sold and conveyed to the Defendant, Joseph Dearie, or that a just equivalent in money may be decreed her. in lieu thereof.
    The material circumstances of the case are'these:
    Lewis Hipkins being seized as tenant in common with Philip Richard Fendall of one third of a tract of land lying in the county 6f Fairfax by his déed exeeuted by himself and wife, leased the same to Philip Richard Fendall for the term of thirteen years, to commenee on the first of September, in the year 1794, at the annual rent of 140i.
    A courtof Chancery esnn“tt purchase money in lieu of e¡a sold, unless by resfe<i.
    In the year 1794 Lewis Hipkins departed this having first made his last will and testament in writing,» in which he devised both real and personal estate to his wife: tjie real estate for her life, with remainder to his three daughters.
    To his two sons he devised the premises in question, and .added that if, during the minority of his sons, Philip R. Fendall should erect thereon another water mill or water mills, his desire was that his sons or the survivor of them should, at the.expiration of the lease for years made to the said Philip pay one third part of the value of such mill or mills, and in default of payment that P. R. Fendall should be permitted to hold the same at the present rent until the value should be received.
    He directed his two tracts of land in Loudon to be sold for the payment of his debts, and appropriated the annual rent accruing on the lands leased to P. R. Fendall to the education and maintenance, of his children.
    The testator then adds the following clause:
    «If it should so happen- that the remaining part of my estate not herein bequeathed should prove insufficient to pay all just demands against my estate, then my will and desire is that my executors shall sell as much of my real and personal estate as may be necessary to niake up the deficiency, and that they shall sell such parts as will divide the loss among my representatives as nearly as may be in proportion to the property bequeathed to-them and each of them.”
    On the 13th day' of December, in the year 1797, Susanna Hipkins, then the. widow of Lewis Hipkins, conveyed her dower in the premises in question and álsq in the land devised to her for life by her deceased husband to the Plaintiffs, John Adams and West ley Adams, .in trust for her use.
    
      In the ye&r 1803 P. R. Fendall and Walkér Mtíse iiistituted a suit against the executors and children of Lewis Hipkins, deceased, and in the month of J.une in that year the cause came on to be heard by consent of parties, when the Court decreed that the whole estate of Lewis Hipkins be sold and tlie money brought into Court.
    The report of the salb does not appear on the record, but an entry was made that the report was made and confirmed by the Court.
    . Under this decree the premises were sold and conveyed to the Defendant, E. I. Lee, who purchased in trust for P. R. Fendall, one of the executors of Lewis Hipkins. On the deed of conveyance is a memorandum stating that the property was sold subject to dower.
    Lee conveyed the premises to the other Defendants, trustees of P. R. Fendall, for the purposes of a trust deed which had beenxpreviously executed conveying to them tlie other two thirds of the same estate on certain trijsts in the deed recited.
    The trustees sold and conveyed to the Defendant, Joseph Deane.
    The bill states that the Defendant, Joseph Deane, had not paid the purchase money, and was nulling, should the Court decree dower in the premises, to give an equivalent in money in iieu thereof.
    Soon after the trust deed from Susanna Hipkins to John and Westley Adams she intermarried with the Plaintiff, Richard Wren.
    Philip R. Fendall continued to pay the Plaintiff, Susanna, during her widowhood, and the Plaintiffs, Richard and Susanna, after their intermarriage, one third part of tlie rent accruing on the premises devised to him by Ilipkins and wife until the year Í803; since wljich lie has refused or neglected to pay the same.
    The Defendants, the trustees of Philip Richard Fendall, lie having departed this life previous to the institution of this suit, insist,
    
      1. That the remedy'of the Plaintifis, if they-have any, is at law, and that a Court of equity can take no jurisdiction of the cause-
    2. That the provision made by the will of Lewis Hip-kins for the Plaintiff, Susanna, not having been renounced by. her, bars her right of dower in bis estates.
    The Defendant, Joseph. Deane, has put in no answer, and as against him the bill is taken as confessed.
    The Circuit Court determined that the claim of the Plaintiff, Susanna, to dower was not barred, and decreed her a sum in gross as an equivalent therefor.
    From this decree the trustees of Philip Richard Fendall have .appealed The Plaintiffs also object to so much of the decree as refuses them rent on the premises, and have therefore taken out likewise a .writ of error.
    E. I. Lee, for the Plaintiffs in error.
    
    1. If the Complainant, Susanna, has any right of dower, her remedy was in a Court of law.
    In a suit in Chancery, if a question of dower arise, and the right of dower be denied,, a Court of equity will send it to a Court of law to he tried.
    The Courts of the United States are forbidden by law, to exercise Chancery jurisdiction in a case in which there is a remedy at law. A Court of equity, takes cognizance of no case of dower which does not involve some peculiar ground of equity: such as discovery, partition^ account, &c.
    Here was no prayer for discovery, nor partition, and although an account was prayed, yet it.was unnecessary. 1 Fonb. 19. 1 Br. C. C. 326. 3 Atk. 130. Dormer v. Fortescue. 2 Br. C. C. 631. 2 Vez. Jr. 124.
    2. She had no right to dower. Her husband, Hip-kins, had devised to her an estate for life, which appears, by the various'provisions in liis will, to have been intended to be in lieu of dower. Tiie lands out of which dower is now claimed, he devised to his sons, and also.devised them for payment of his debts. He specifically devised away all his lands.
    . In-the case of Ambler v. Norton, 4 Hen. and Mum 23, tfie devise was not expressly in lieu of dower, hut the fact was collected from the whole context of the will.
    3. Rut if she had a right of dower, the Court had no authority to make, a decree for part of the purchase money,, without the consent of all parties concerned, 1 Inst. 33.
    
    R,. I. Taylor, contra.
    
    None of the facts upon which the claim of dower is founded'is denied by the answrer. The denial of the right is founded on particular facts therein stated.
    1. As to the jurisdiction: at the present day" Courts of law and equity have a concurrent jurisdiction in dower, if the facts are not denied upon which the claim, of- dower is founded,* such as seizure, &c. In general a Court of Chancery ip the proper tribunal. A diseqvery ís almost always sought 5 partition is frequently required, and an account is generally taken. Comyns Dig, Tit. Chancery, E, Mitford, 109, 129. 1 Fonb. 22. 6 Bac. Ab. 417. 2 Vez. Jr. 122, 124. There is no case in Virginia, where-$he jurisdiction has been denied.
    In this caso a partition was necessary, and that is p special ground of equitable jurisdiction.
    Rut the property had been sold by order of Court, expressly subject to dower, and the deed to Deane contained a covenant to indemnify him against the claim of dower; A Court of Chancery can call all. parties before it, and by decreeing a compensation in lieu of land, prevent circuity of action. The widow and the purchaser had consented to such a decree. An account of rents and profits was also necessary. The act of Congress prohibiting the resort to Chancery where there is a remedy at law, is only an affirmance of a principle of the common law..
    
      But it is said that by joining in the lease for 13 years, she barred her dower during the lease. This is not so. Her husband still had. a fi‘ee hold of inheritance in the land, and died seized thereof. And. the widow is entitied to dower in all lands of which the. husband was seized of the freehold of inheritance during thé ture. 1 Inst.. 32. Com.. Dig. Tit. Dower, A. 6.
    
    But the most formidable objection arises upon the devise to her by the will. That devise was .not expressly in lieu of dower, nor is there such averment as the state of Virginia requires. Therb is no averment that shé accepted the lands devised in hen of dower; nor that her husband was seized of such an estate in those lands as would be a bar if she had accepted them.
    The decree of the Court was for. a sale, of thé wkoie real estate of her husband, it does not appear that the.. land devised to her was not sold as well as the rest. If it was she ib not barred of her dower. Co. Lit.: 18, (B.) Harg. note. Ridgeway's Rep. tem. Hardwicke 184. Dormer v. Fortescue. Fonb. 22. 6 Bac. Ab. 417.
    But there is an error in favor of the Plaintiff in error, and if the cause should be sent hack it ought tq hb corrected. There was no allowance made for arrearages of rent;
    As to the decree for money in lieu of land. Thé widow was willing to receive it, and the Defendant,' Deane, to pay it. If, there had not beetí a decree .for money, Deane would have been obliged to, pay the whole purchase money to the trustees and then sue them for a breach of covenant, and’ recover back in damages the value of the dower to be assessed by a jury. By ascertaining that value in the first instance, this circuity of action and loss uf time are prevented; Whether thé Cs art below ought themselves to have fixed the value of the dower, or left it to be ascertained by a master in chancery, or by a jury, we do not.pretend to say. We do not wish the decree to be affirmed. Wé hope the hill will not be dismissed; but sent back with instrucr turns to allow us the arrearages of rent with the, profits thereon, and that an account be taken accordingly.
    
      C. Lee, in reply.
    
    The essential point oí the case is that she is barred of her dower by her acceptance of a jointure under the' will. The act of assembly (Rev. Co,. 180, § HJ say? “ tjiat if any estate be conveyed by deed or will, either expressly, or by averment, in lieu of dower,” &c. “ such conveyance shall bar her dower of the residue,” &c. She has accepted her jointure and resides upon it. All the circumstances of the will show the intent to. be in lieu of her dower. By. averment, means by allegation and proof dehors the will. 1 Inst. 36, (b) note. Waodeson. Tit. Bower. Hargrave Co. Lit.,36, (bJ note. I Br. C. C. 292, Pearson v. Pearson.
    
    The Court had no right to decree money in lieu of the land without consent of the creditors.
    No arrearages of dower can be recovered for the túne preceding the demand.
    
      February 26th....
    
   Marshall., Ch. J.

after stating the case, delivered the opinion of the Court as follows:

Thd material questions in the cause are:

• 1. Has a Court of equity jurisdiction in the case ? •

2. Is the Plaintiff, Susanna, entitled to dower ?

3. If these points be in her favor what decree ought the Court to make?

, According to the practice which prevails generally in England, Courts of equity and Courts of law exercise . a concurrent jurisdiction in assigning dower. Many reasons exist in England in favor of this jurisdiction: one of which is, that partitions are made and accounts are taken in chancery in a manner highly favorable to the great purposes of justice. In this case dower is to be assigned in an undivided third part of an estate, so that it is a case of partition of the original estate 'as well as of assignment of dower in the part of which Lewis Hipkins died seized.

An additional reason and a conclusive One in favor Of the jurisdiction of a Court of equity is this : lands are in' possession of ,a purchaser who hats not yet paid the purchase money* A Court of law could adjudge to the Plaintiffs only á third part of the land itself. Now, if the Plaintiffs be willing to leave the purchaser undisturbed, to affirm the sales and to receive a compensation for her dower instead of the land itself, a Court of equity ought never, by refusing its. aid, to drive her into a Court of law and compel her to receive her dower in the lands themselves* This is therefore a proper case for "application to a Court of Chancery*

2. It is perfectly clear that the provision made by Lewis Hipkins in his last will is no bar to a claim of dower for several reasons, of which it will be necessary to mention only two.

1. It is not expressed to be made in lieu of doWer.

2. It is not averred that she has accepted the provisión and still enjoys it.

3. It remains to inquire what decree the Court ought to make in the case.

The first question to be discussed is this: Is the Plaintiff, Susanna, entitled both to dower and to the provision made for her in the will of her.late, husband?

The law of Virginia has been construed to authorizes an averment that the provision in the will is made ul lieu of dower, and to support that averment by matter dehors the will. But, with the exception of this allowance to prove the intention of fhe testator by other testimony than may be collected from the will itself, the act of the Virginia legislature is not understood in any respect to vary the previously existing common law;

. In the English books tliere are to be found many decisions in which the widow lias been put to her election either to take her dower and relinquish the provision made for her in the will, or to take , that provision and ¿relinquish her dower. There are Other cases in which she has been permitted to hold. both. The principle upon which these cases go appears to be this:

It is a maxim in a Court of equity not to permit tW same person to hold under and against a will. If tli^re.-, it be manifest, from the face of the will, that the testator did not'intend the provision it contains for his widow to he in addition to her dower, hut to be in lieu of itj if. his intention discovered in other .parts of the will must be defeated by the allotment of dower to the widow, sitó must renounce either her dpwer, or the benefit she claims under the will. But if the two provisions may stand well together, if it may fairly be presumed that the testator, intended the devise or bequest to his wife as additional to her dower, then she may hold both.

The cases of Arnold v. Kempstead and wife, of Tillaracl and lord Galway, and of Jones v. Collier and others, reported by Ambler, are all cases in ’ which, upon the principle tiiat has been stated, the widow was put to her election.

In the case under consideration neither party derives any aid from extrinsic circumstances, and therefore the cáse must depend on the will itself.

The.value of the provision made for the wife compared with the whole estate is not in proof: but so far as a judgment on this point can be formed on the evidence furnished by the will itself, it was supposed by him to be as ample as his circumstances would justify.

The only fund provided for the,maintenance and education of his five children is the rent of 140Í. per annum, payable by P. R. Fendall. Since he has made a distinct provision for his wife, the presumption is much against his intending that this fund should be diminished by being charged with her dow'er.

That part of the willy too, which authorizes P. R. Fendall, in the event of building a mill and not receiving from the sons of the testator their half of its value, to hold the premises until the rent, should discharge that debt, indicates an intention that in such case the whole rent should be retained-

• The clause, too, directing the residue of his estate,to he sold for the payment of debts is indicative of an expectation that the property stood discharged of dower, and is a complete disposition of his whole estate. The testator appears to have considered himself as at liberty to arrange his property without any regard to incumbrance of dower.

Upon this view of the will it is the opinion of the majority of the Court that the testator did riot intend the provision made for his wife as additional to her dower, and that she cannot be permitted to hold both.

She has not however lost the right of election. Np evidence is before the Court that she has accepted the provision of the will, nor that she still enjoys it. Indeed there is much reason to suppose the fact to he otherwise. The decree of 1803, does not . except the lands decreed to her for life from its operation, _ nor is the Coprt informed by the evidence that those lands were not sold under it.

But if she had accepted that provision and still enjoyed it, there is no evidence that she considered herself as holding it in lieu of dower. On the contrary, she was in the actual perception of one third of the rent accruing on the lease held by P. R. Fendall ; and in the deed executed by her in 1797, before hqr second mar-, riage, she conveys her dower in the lands leased, to Fcndall, and also her dower in the lands devised to tier by her deceased husband. It is therefore apparent that, she never intended to abandon her claim to dower.

The next enquiry tp be made by the Court is, to what profits is the Plaintiff, Susanna, entitled in consequence of the detention of dower ?

It is unnecessary to decide whether, in general, a person claiming dower from a purchaser can recover profits which accrued previous to the institution of her suit. In this case the Plaintiff was in the actual enjoyment of dower. She received one third of the rent accruing from the premises for nine years; She was therefore in full possession of her dower estate; anil when afterwards the land was sold under a decree of a Court, P. R. Feudal! was one of the'executors who made t]ie sale, and was himself in effect the purchaser of the estate. Upon no principle could he justify the refusal to pay that portion of the rent which was equal to her doWer in the.land, unless on the principle that she was entitled to dower. In this case therefore the Plaintiff is entitled to one third of 1401. per annum for the remaining four years of the lease under which P. Rw Fendall held the land, and to an account for profits after the expiration of the lease.

But thé Plaintiff, Susanna, cannot claim the profits on her dower and hold any portion of the particular estate devised to her, or of the! profits on that estate. An account therefore must be taken, if required by the Defendants, showing what she has received under the will of her husband. Tliigj must be opposed to the profits to which she is entitled for dower, and the balance placed to the credit of the party in whose favor it may be.

It remains to enquire whether the allowance of a sum in gross in lieu of dower in the land itself, or of the interest on ohe third of the purchase nioney, might legally be made.

This must be considered as a compromise between the Plaintiffs and the Defendant, Deane. His assent being averred in the bill, and the bill being taken pro coiifesso as to him, this may be considered as an arrangemdht to which he has consented. ' This, however, cannot affect the other Defendants. They have a right to insist that, instead of a sum in gross, one third of the purchase money shall be sot apart and the interest thereof paid annually to the tonant in dower during her life.

If the parties all concur in preferring a sum in gross to the decree which the Court has a right to make, still it is uncertain on what principle seven years were taken as the value of the life of the tenant in dower. It is probably a reasonable estimate, but this Court does not .perceive on what principles it was made, nor does the record furnish tiic means of judging of its reasonableness.

This Court is of opinion that there is error jn the decree of the Circuit Court in not requiring the Plain». tiff, Susanna, to elect between dower and the estate devised to her by her late husband, and in not allowing profits on her dower estate if she shall elect to take dower. The decree is to be reversed and the cause re-mantled for further proceedings in conformity with the following decree:

This. Court is of opinion that the Plaintiff, Susanna, is not barred of her right of dower in the lands of which her late husband, Lewis Hipkins, died seized, but that she cannot hold both her dower and the property to which she mpy he entitled under the will of the said Lewis. She ought therefore to have made her election either to adhere to her legal rights and renounce those under the will, or to adhere to the will and renounce her legal rights, before a decree could be made in her favor.

This Court is farther of opinion that the Plaintiff, Susanna, having been in possession of her dower by the receipt of rent for several years after the death of her late husband, is, in the, event of her electing to adhere to her.claim of dower, entitled to receive from the estate of P R. Fendall the profits which have accrued on her dower estate in his possession from the time when, he ceased to pay the same, until the sale was made to the Defendant, Joseph Deane, and is entitled to receive from the said Joseph Deane the profits which have accrued thereoji since the same was sold and conveyed to him to ascertain which an account ought to be directed. And the Court is further of opinion that an account ought also to be directed to ascertain how much the said Susanna has received from the estate of her' late husband, and what profits she has. received from 'the estate devised to.her in his will: all which must be deducted from her claim for dower,

: The Court is further of opinion that if the parties or either of them shall be dissatisfied with the allotment of a sum in gross, and shall prefer to have one third. part of the purchase money, given by the said Joseph Deane for the lands in which the Plaintiff, Susanna, claims dower, set apart and secured to her for her life, so that, she may receive during life the interest accruing there-oil, and shall apply to the Circuit Court to reform its decree in this respect, the same ought to be done.

It is the-opinion of this Court that there is no error in the decree of the Circuit Court for the county of in determining that the Plaintiff, Susanna, was entitled to dower in the estate of her late husband, Lewis Hipkiris* deceased, but that there is error in not requiring her to elect between her dower and the provision made for her in the will of her late husband, and in not decreeing profits on the same. This Court doth therefore reverse and annul the said decree; and doth remand the cause to the said Circuit Court with instructions to reform the said decree according to the directions herein’ contained.

Johnson, J. dissented from the opinion of the Court, but did not state his reasons.  