
    Vincent Floyd & Wife vs. Elias E. Hodge.
    At. a sale of the personal property of an intestate, his widow and her second husband purchased to a small amount, and gave the administrator a receipt for that amount, as her distributive share. The debts were sufficient to consume the whole personal estate, and were after-wards paid by a sale of the lands : — Held, that the widow was not barred of her dower, the personalty being the primary fund for the payment of debts, and there being no personal estate to distribute.
    BEFORE GLOVER, J., AT SUMTER, FALL TERM, 1856.
    The report of Ms Honor, the presiding Judge, is as follows: “ The plaintiffs declared in dower, demanding that Martha •Floyd, late Martha Allbrook and relict of the late Willis Allbrook, be endowed of a tract of land, of which the said Willis Allbrook was seized during the coverture.
    “ The land was sold by the sheriff, as the property of Willis Allbrook, and purchased by the defendant, who, in bar of demandant’s right of dower, relied on the receipt by the plaintiffs, after their intermarriage, of the distributive share of the said Martha, in the personal property of Willis Allbrook.
    “James W. Eichardson, the administrator of the goods and chattels of Willis Allbrook, stated that plaintiffs purchased at the sale of the personal property to the amount of twenty-eight dollars and sixty-nine cents, and instead of giving a note, plaintiffs gave a receipt to the administrator for Martha’s distributive share in the personal property sold, and that the amount of sales would not pay the debts of the intestate. He did not explain to the parties that the receipt by them of Martha’s distributive share, would bar her right of dower, but they did receive it as her distributive share.
    
      “I instructed tbe jury that the widow could elect to take, either her distributive interest in her deceased husband’s estate or her dower in such real estate as her husband was seized 'of during the coverture, and that any unequivocal act by the demandant would decide her election. I submitted to them to inquire, if the demandant had made such election, and if any fraud had been practiced (which was urged in the argument) to mislead the plaintiffs respecting the legal rights of the said Martha.
    “ The jury found for the demandant.”
    The defendant appealed and now moved for- a new trial, on the grounds:
    1. Because the verdict was capricious, without evidence, and against the charge of the Judge.
    2. Because the evidence was uncontradicted of the accept-' anee of the distributive share of Mrs. Floyd in the personal estate of her first husband, Willis Allbrook, under whom she claims her dower, and there was, therefore, no room to presume or infer fraud.
    3. Because the administrator was not bound to explain the law to demandant, and without proof of fraud she was barred after receipt given as in this case.
    4. Because two witnesses, unimpeached, swore to one state of facts and the jury found another. ■
    
      Spain & Richardson, for appellant.
    «7". S. Richardson, jr., contra.
   The opinion of the Court was delivered by

O’Neall, J.

In this case I think the-verdict was perfectly right. Por according to tbe proof tbe personal estate was less than tbe debts, and of course there was nothing of it to distribute.

It is no answer to this to say, tbe real estate paid the debts, and that there is a surplus left for distribution.

In Warley vs. Warley, Bail. Eq., 397, tbe rule is very clearly settled, that in an intestacy, personal estate is the primary fund for the payment of debts.

Here therefore the widow cannot have bad a distributive share of that which did not exist. The debts consumed or ought to have consumed the personal estate.

Independent of this conclusive view the jury were told to inquire whether the demandant had elected to take her distributive share of the personal estate, and also whether any fraud bad been practiced upon her. They answered in her favor, on both these inquiries. How are we to say they decided them wrong ?

The motion is dismissed.

Wardlaw, Withers, Whither, G-lover, and Muhro, JJ., concurred.

Motion dismissed.  