
    Eliza Jennings v. William Jennings et al.
    
    1. The laws of Ohio govern in the construction of wills disposing of lands situated in this State.
    2. Such wills, foreign as well as domestic, are to be construed in accordance with the rule of the statute of this State which prescribes that if a provision be made for a widow in the will of her husband, she shall not be entitled to such provision and also to dower, unless it plainly appears by the will to have been the intention that she should have such provision in addition to her dower.
    3. Where, in such case, the widow elects to be endowed of the lands of her husband, the devisees who are prejudiced by such election, are equitably entitled to compensation out of the rejected provision made for her in the will.
    Appeal. Deserved in the District Court of Mahoning county.
    
      On the 21st July, 1866, Eliza Jennings filed in the court of common pleas of Mahoning county, her petition for partition and dower, stating that she is a resident of Hancock county in the State of West Virginia ; that on the 30th October, 1865, her husband Simeon Jennings, then á resident of said county of Hancock, State of West Virginia, died without issue of his body, leaving the plaintiff his widow and only heir at law. That on the 9th September, 1859, her said husband, Simeon Jennings, executed his last will and testament, and on December 26th, 1860, executed his codicil thereto, all of which has been duly probated and admitted to record by the proper court of said county of Hancock, State of West Virginia, and which has also been duly admitted to record by the Probate Court of Mahoning county, Ohio ; that a copy of the will and codicil is attached to the petition, and made part thereof; that in and by said will, the testator devised all his real estate, wherever situated, as follows : the undivided one third part thereof to the plaintiff for and during her natural life only, and the remaining two-thirds thereof to the brothers and sisters of the testator, and their lineal descendents, jjer stirpes; the defendants being such devisees. Whereby the testator died intestate as to the fee of said one-third of said real estate, leaving it undisposed of after the death of the plaintiff. That on the 12th July, 1866, the plaintiff, as the widow of the testator, in due form of the laws of the State of West Virginia, and in the proper court for said county of Hancock, refused to accept the provisions made for her in said will and codicil, thereby claiming and herein demanding her rights in and to said real estate, according to the laws of the land. That said Simeon Jennings acquired and died seized in fee simple of tracts of real estate situate in various counties in the State of Ohio. These tracts of land are described in the petition, as- situate in the several counties of Mahoning, Stark, Cuyahoga, Medina, Wayne, Putnam, Defiance, Wyandot, Henry, Vanwert, Hancock, Columbiana, Lucas, Wood, Hardin, Williams and Carroll. The plaintiff claims a legal right to, and to be seized in fee simple of the undivided one-third part of the described tracts of land, as heir at law and next of kin to said Simeon Jennings, deceased, and avers that the defendants are tenants in 'common with the plaintiff in said lands and are entitled to the undivided two-thirds thereof, subject, however, to the dower estate of the plaintiff therein. The plaintiff asks that her one-third part of the lands may be set off to her in severalty, and that her dower estate in the remaining two-thirds thereof may be assigned to her according to the statute ; and prays for such other and further orders and decree as equity and justice to all parties in interest may demand.
    The answer of defendants deny that the plaintiff is entitled to one-third of the lands and dower in the remaining two-thirds of the same; but say that the plaintiff was bound to elect between the provisions in the will of her late-husband in her favor, and her dower in his lands, and that she could not take both dower and those provisions, That upon the election of the plaintiff against the will, and in favor of taking her dower in the lands, the defendants, who are devisees in the will, are entitled to beconqpensatedforthe dower taken by the plaintiff in the two-thirds devised to them by the testator, out of the one-third devised to her during her life, and rejected by her on her election, leaving her only what is equal to one-third of the lands in fee simple. The court is asked to decree accordingly.
    The case was appealed to the district court, and therein reserved to this court for decision, on the following agreed statement of facts : Simeon Jennings, deceased, left no issue of his body, and owned the lands described in the petition, having acquired them by purchase. He died on October 30th, 1865, leaving the plaintiff, his widow, surviving him. He resided in the State of West Virginia at the time of his death, and by the laws of that State, the plaintiff, as his widow, is entitled to one-half of all the personal property left by him at his death, subject to distribution. He had no power to bequeath that half of his personal property to others to her exclm sion, unless she voluntarily relinquishes it by electing to take under the will of her husband. The estate is not yet set-tied, but it is supposed by the parties that the personal estate, subject to distribution, will exceed two hundred thousand dollars. The defendants are the surviving brothers and sisters of the testator, and the children and grandchildren of deceased brothers and sisters. The testator made his last will and testament and codicil thereto, as charged in the petition, and the will and codicil have been duly proved and admitted to record in the State of West Virginia. The will gave the plaintiff the one-third of the real estate of the testator during her life, and gave the other two-thirds of his real estate to his brothers and sisters that were living, and to the children and grandchildren of such as were deceased, the children and grandchildren taking per stirpes, so that each living brother and sister, and the representatives of each deceased brother and sister, take the one-sixth of the two-thirds of the lands, free of the dower of the plaintiff therein, provided she had taken under the will. But the plaintiff elected against the provisions of the will, and claims her legal rights. The testator made no disposition of the remainder estate after the termination of the life estate in the one-third of the land given to the plaintiff during her life. The parties disagree as to what the plaintiff’s legal and equitable rights are in the lands of the testator under this statement of facts. The plaintiff claims that she is entitled, as heir of her late husband, to the one-third of his real estate in fee simple, and that, as widow, she is entitled to dower in the remaining two-thirds, without the defendants, or any of them, being compensated for the dower estate taken by her in the two-thirds of the real estate devised to others than herself. The defendants deny this claim, and insist that if she does not take the same third for her dower estate in the lands that was devised to her for life, but takes dower in the two-thirds devised to others, that then, and in that case, those to whom the two-thirds were devised, are entitled to be compensated for the dower so taken in the two-thirds, out of the one-third devised to her for life.
    
      R. P. Ranney for plaintiff.
    
      The questions reserved relate exclusively to the plaintiffs right to dower, and the consequences of asserting that right.
    I. By the statutes of West Virginia, a widow is required to elect only between the provision made for her in the will, and her rights at law in the personal estate, unless such provision is expressed to be in lieu of dower. The common law doctrine is there adopted ; and it is conceded, that there is nothing in this will which would put her to an election, and that she might there take both the provision and her dower. 2 Scribner on Dower, 413, 416, 428; Higginbothan v. Cornwell, 8 Gratt. 83; Dixon v. McCue, 14 Gratt. 540 ; Douglas v. Feay, 1 W. Va. R. 26; Walker v. Hall, 15 Ohio St. 355.
    II. Conceding the perfect power of each State over real estate within its borders, whatever may be the domicil of the owner, still, there is nothing in the laws of this State which requires a different result, or which would deprive the plaintiff of the right to hold both the devise and her dower.
    (1) The common law rule is in force here, in so far as it has not been changed by statute. Walker v. Hall, supra.
    
    (2) The 43ct and 44th sections of our act relating to wills, which are relied upon as effecting a change, have no application to wills made and proved in other States, or to the rights of widows resident there. They were only intended to apply to domestic wills, and to govern domestic administrations, as is demonstrably shown by the judicial construction already placed upon that act, and by the express provisions of these sections.
    (3) It has been settled that this act was designed to provide for three classes of wills — 1st, those made by residents of this State, in virtue of power derived from our laws; 2nd, those made under, and governed by, the laws of other States or territories of the United States ; and, 3d, those made in, and dependent upon the laws of, foreign countries; and that, the first twenty-five sections of the act, although not so expressed upon their face, relate exclusively to wills of the first class. Manuel v. Manuel, 13 Ohio St. 458.
    
      (4) The sections (43 & 44) in question, are amongst what the court designates as “ miscellaneous provisions; ” and the question is, to which of the above classes of wills do they relate ? It is clear they relate exclusively to the first class, and never could be executed if given a wider scope. The question is one purely of legislative intention; and that is gathered from the subject matter and objects of the enactment, the language in which it is expressed, construed in reference to the whole act, and all statutes in pari materia.
    
    When thus construed, and the necessary implication is supplied, the 43d section would in substance declare, that if any provision is made for a widow, in the will of her husband, executed and probated as provided in the first twenty-five sections of this act, she shall elect, &c.
    1st. To prescribe the measure of justice between a widow, and other claimants upon estates in the course of settlement in our courts, and, giving the widow a free choice, to require her to elect within such time as would not delay the. settlement of the estate, and to make the final settlement conform to her election, are the plain objects of the enactment. As applied to persons and things within our limits, its propriety is not to be questioned. But it never could have been intended to intervene in the affairs of the residents of other States, or to require a widow in another State, who lawfully holds there what is given her by a will and her dower, to give up all that is given her by the will, as a condition to asserting her right of dower here.
    2nd. No will executed in another State by a resident there, can be probated in this State ; and yet, the election provided for by these sections, can only be made upon the personal appearance of the widow, in the Probate Oourt of the county where the will is probated. Manuel v. Manuel, 13 Ohio St. 466.
    3d. The court in which a domestic will may be probated, and administration had, and from which the citation to the widow must issue, it is settled, is the Probate Court of the county in which the testator had his last place of residence. Lines v. Irwin, 16 Ohio St. 490.
    
      4th. The probate judge, as soon as the will is probated, is required to issue a citation to the widow, and one year after its service upon her she is required to elect. The impossibility of making service out of the State shows that it was never intended to extend to such cases.
    5th. In the case of foreign wills, no probate judge in Ohio could discharge the duty of explaining to the widow what would be her rights by law ; as her rights in the personalty would depend upon the foreign law, and be exclusively governed by it.
    6th. If she fails to elect, the statute assures her that she shall take “ such share of the personal estate of her husband as she would be entitled to by law, in case her husband had died intestate leaving children;” and yet, our laws could not control a dollar of that estate, and whether she could take any of it, would depend upon the foreign law. Manuel v. Manuel, supra.
    
    7th. The assurance, if she elects to take under the will, that she should remain in the mansion house and receive a year’s support for herself and children, is very sensible when our laws can make good the assurance, but utter nonsense when both mansion house and money to pay the allowance are out of our reach. The expression, “ as now provided by law,” demonstrates what wills and administrations are alone provided for, and to what only these sections extend.
    8th. If they were so tortured as to make th.% probate abroad, and record here, answer their requirements, we are then brought to this absurdity; that while she must elect within one year from the probate, or, as amended, within one year from the service of a citation, the devisees, by section 52, have four years within which to cause it to be recorded.
    These considerations sufficiently show, that the sections relied upon are but part of a complete system providing for the execution, probate, and administration of domestic wills, and defining the rights of domestic widows; and when taken in connection with the sections relating to the recording of wills made and probated in other States, completely demonstrate, that the legislature has intended in this as in many other directions, to allow the citizens of such States to dispose of property held here in accordance with their own laws, simply requiring- them to place the evidence of their title upon our public records, and then contenting ourselves by declaring their complete validity here. This harmonizes the whole act; and simply places us in the attitude of subordinating things to persons, and of remitting the latter to the dominion of the laws which they participate in making; and, also, measurably realizing that “ more perfect union,” which is so befitting the relations of sister States.
    If I am right in this, or, to any considerable extent, in the premises from which the conclusions are drawn, the case ends here. Because, if no election was required by the laws of W. Ya. or Ohio, between the provisions of the will, and the dower of the widow, no foundation is laid for the further claim to compensation. But if I am altogether wrong, and this will is to be treated as a domestic will, and this widow as a domestic widow, still, no case is made for the defendants.
    III. The claim that there is, is not founded upon any denial of her right to have dower assigned as she claims, but upon the assertion of the affirmative right to be compensated from that which she has rejected, and which has come to her by descent, or which remains in her hands as a trust for that purpose. The argument is this : — The testator, looking to the laws of Ohio, knew that if his wife accepted the bequest and devise made her in the will, she would be barred of dower in the lands given to other devisees, and intended, if she did not accept, that the property he devised or bequeathed to her should be held in trust for their indemnity. The devise and bequest did not lapse, it is said, but is still vested in her for that purpose. This goes very deep. It, in effect, makes every testator warrant against the incumbrance of dower, and, in the absence of the disposition, takes from the heir, whether wife or child, all that is necessary to satisfy the incumbrance ; and as this is not liquidated, and as the right to indemnity attaches both to real and personal prop erty, the estate must await settlement until it is done.
    It would be enough to condemn the whole proposition that not one testator in ten thousand would have the slightest idea of the occult doctrine upon which it is founded; and, it is believed, not one estate in Ohio was ever settled with any reference to it. But what is this doctrine ? It will be found treated of in the elementary books under the head of “ election.” To a certain extent the whole subject is very clear. No one is permitted to claim under, and adversely to a will. If he takes the benefit, he must make good the testator’s attempted dispositions. But suppose he takes his own property and abandons that given by the will, what becomes of the abandoned property ? I have been unable to find a single American case which, in the absence of words indicating such an intention, has given it to a disappointed legatee or devisee ; or a single case any where which has held a devisee entitled to indemnity, because the widow asserted her right to dower in the lands given to him by will. But these considerations may be postponed to another time. No single one of the indispensable elements to make a case of compensation, as defined in any book, exists in this case.
    1st. It is indispensably necessary that the intention of the testator to give specific, property belonging to another, “as manifested by the will itself,” should be made “ clear and decisive 2d. That a devise or bequest should be given to the owner of such property, of the testator’s own property ; and 3d. That such owner should elect to take his property from the disposition of the will. 1 Jarm. on Wills, 394; 2 Redf. on Wills, 737, et seq.
    
    (1.) There is not the slightest indication of a purpose, on the face of this will, or in the surrounding circumstances, to give these devisees the widow’s right of dower in the property. “A general devise of the testator’s real estate has always been held to show an intention to give what strictly and properly belonged to him, and nothing more.” 1 Jarm. on Wills, 394.
    (2.) In the point of view in which we are now considering this will, and treating it as a domestic will, no title or interest to one cent of the testator’s property ever vested in the plaintiff. Our statute, unlike those of some others States, requires the widow affirmatively to approve the will before she takes anything under it. If she fails to approve, she retains her dower and her legal share of the personal estate. Until 'election, she is neither divested of her legal interests, nor invested with title by the will. The dispositions in her favor are upon the precedent condition that she first surrender her legal rights, and failing to do so, they never take effect. As consequence, no interest or estate vested in her to be held in trust, or to be sequestrated for the benefit of devisees.
    (3.) If no purpose is manifest in the will to give the defendants the plaintiff’s dower estate, it is a self-evident proposition that she takes nothing from the dispositions of the will when she asserts her dower right.
    (4.) Our statute cannot be made a substitute for all these indispensable requisites of the old equity doctrine. It does not cover the ground in spirit or purpose. No man can say with any certainty, that the testator has intended to give away the wife’s dower, when he has not so indicated, from the mere fact that he has made a conditional devise which might or might not have that effect, dependent upon the will of another ; while it is legally certain that if such a devise never takes effect, because the precedent condition is not complied with, the property descends to the heir wholly unaffected by the will.
    (5.) To hold otherwise would be to make a disposition for the testator, where he has made none ; and to do it upon the blindest conjecture, as to what he might have done, if he had attempted it. Such a course would overturn a long line of decisions in this State, in which it has been conclusively settled that the mere intention of a testator, in the absence of absolute disposition, is of no importance ; that a failure to dispose of property by will, leaves it to descend by law, and that such a thing as an estate derived from both sources, is unknown. Craner. Doty, 1 Ohio St. 282; Needles v. Needles, 7 Ohio St. 432 ; Bane v. Wick, 14 Ohio St. 505 ; Gilpin v. Williams, 17 Ohio St. 396.
    (6.) The election required by our statute is only between the legal rights of the widow as widow, and the provision of the will, and in no wise extends to or affects her interests as heir or distributee. Bane v. Wick, 14 Ohio St. 505 ; Carder v. Fayette Co. 16 Ohio St. 365.
    Finally and in brief, my answer to the novel and extraordinary claim made by the defendants, may be summed up in this : I deny that the testator can be presumed to have contemplated an application of the 43d and 44th sections of our wills’ act, to the will he was making, as they could legally have nothing to do with it, or with the rights of any person to lake under it; that the election of the widow in W. Ya. only affected her relations to the personal estate, and that, but for the merger which ensued, she might have held her life estate in these lands in addition to her dower. But if he might legally contemplate these sections as affecting his will, and contingently the rights of his wife, and had a full understanding of the old equity doctrine of compensation, he was also bound to know that no court would presume he intended to give- away his wife’s dower without his saying so ; that his provision for her was simply an offer to buy her dower, which her failure to accept, vjould leave wholly inoperative, and the property to descend, unless he made a further disposition of it; and that the result would be, that he had given away nothing of hers, and she ■had talcen under the will, nothing of his. If he had been as learned as Lord Cowper, he could have found nothing in this state of things upon which to base a claim for compensation. And if he had applied his good sense to the matter, he would have further known, that no man living ■could tell, with any certainty, what he would have done with -the property offered to her, if he had seen lit to dispose of .it; that courts were not accustomed to make wills for parties, or to supply defects in those made by them, and that the ■courts of this State were not likely to undertake the job for him.
    
      F. C. Servís, also, for plaintiff:
    The plaintiff having refused to accept the provisions made for her in the will of her husband, or electing to take against his will, is remitted to her dower, under the wise and humane provisions of the law, and takes not by the will but by the law, so that the will must be lost sight of entirely, until that Legal interest or estate is determined ; and what that is, the statute regulating dower, S. & C. 516, sec. 1, and the statute regulating descents, 62 O. L. 33, sec. 2, define. The first gives to plaintiff, as the widow of Simeon Jennings, a dower estate in all the lands of which he died seized. The second gives to the plaintiff, as his only legal heir, the fee-simple estate of all the lands in controversy, or of all the lands he did not devise away in fee-simple, which, in this case, is the one undivided third part of all the lands situate in Ohio.
    To defeat this claim of the plaintiff, the defendants interpose the application of the old common law doctrine of election and compensation, whereby to abrogate and override the statute law of Ohio. And while I admit the correctness of the doctrine of “ election and compensation,” I deny its applicability to this case. Compensation does not necessarily follow election, and the phrase “ election,” does not always have the same meaning. In this case it is synonymous with the word “refusal” and not election, as defined by the common law under the title of “Election and Satisfaction.”
    As to the doctrine of election and satisfaction, see 2 Story's Eq. (3d ed.,) 335, and the cases therein cited, amongst which are Laurence v. Laurence, 2 Vern. 366 ; Gretten v. Harvard, 1 Swanston, 441 ; East v. Cook, 2 Ves. 33 ; Pickering v. Lord Stanford, 3 Ves. 332 and 392 ; Ditton v. Parker, Swanston, 404. The last two cases review the whole doctrine. ■ And no where does it apply, except in cases where something is taken under the will or instrument of conveyance. And in this case, if the widow had taken anything by the will, by which any other devisee would have been disappointed, then compensation ought to be made.
    It is said the provisions in this will were intended to be in lieu of dower. It could only be so intended, in case she elected to take under the will; and as she did not, she has nothing given her by the will out of which to make compensation ; and if she is compelled to compensate, for a disappointment arising from a gift, which the giver had not to give, it must be to take from her that which the law has given her, which is certainly a new doctrine.
    Compensation only arises in cases where something is taken by some instrument of conveyance, as a will, a deed, and the like. I know it is claimed that, in all cases where a widow is bound by the will to elect between her dower and the provisions in her favor, and she elects against the will, it is a case for compensation. If this doctrine was applicable to the case at bar, it is not law, and never was. 2 Story’s Eq. (3d ed.) 351, sec. 1088.
    In giving two-thirds of his real estate to his brothers and sisters, the testator gave only such an interest as he had, and which was only a fee-simple subject to the inchoate dower of his wife, and he cannot be understood to have intended to do more. Fuller v. Yates, 8 Paige, 328 ; Story’s Eq. (3d ed.) sec. 1087 ; Blake v. Bunberry, 1 Ves. 523.
    It is true the statute reverses the common law presumption that the provisions made for a widow in a will is intended to be in addition to dower, but is now held to be in lieu of dower, unless it plainly appear that the testator intended it to be in addition to dower. But the mischief intended to be remedied by the statute was that claimants of dower often obtained larger portions of the testator’s estate than was intended, and the remedy was to remove that presumption, and this alone, is the office of the statute ; but it does not furnish any new rule for the construction of the language of a will. Jarmon on Wills, 742 ; 2 D. & E. 352 ; 4 Ves. 329.
    
      Wilson & Leslie, also for plaintiff.
    
      W. JEC. West, for defendants :
    The defendants concede that by the statute of Ohio, which governs the succession of real property situate therein, the plaintiff was her husband’s heir at law, to whom the intestate fee in the third of those lands descended, and should be aparted; also that, by the same laws, the right reverted to her, by her renunciation, to demand and have aparted to her for life, as dowress, the one-third of the remaining two-thirds of said lands so devised to them. But they deny that the fee so descending to her is unincumbered. On the contrary, they say that the devise of a life estate to plaintiff, in the one-third of these lands, was a provision intended, by implication of law, to be in lieu and bar of her dower estate in said lands ; that the testator intended they should take the said two-thirds so devised to them, free from and disencumbered by the plaintiff’s .potential right as dowress; that by her renunciation, and assertion of dower, she has frustrated the testator’s intention and reduced the bounty pro tanto he designed for them. Wherefore the right has accrued to them in equity to demand and have the life estate, intended as a provision for the plaintiff in lieu of dower, sequestered to compensate them for their disappointment occasioned by her assertion of dower; that therefore said life estate does not merge in and descend with the fee, as intestate, but that being by the testator severed from the fee, for the purpose of satisfying the dispositions of his will, equity does not permit its mei'ger and descent, but will hold and sequester it to effectuate in substance, and by an equivalent, the intention of the testator, the effectuation of which is, by the plaintiff’s nonconfirmance and renunciation, defeated in form.
    The claim of the defendants is founded on the firmly established and universally recognized doctrine of compensation, as an incident or effect, in equity, of testamentary election. As where a testator assumes by will to alienate or dispose of property of which another is the owner, and by the same will devises to the owner an estate over which he has the power of disposition; this creates a case of election. The owner of the property alienated is not permitted to assert his own proprietary right against the will, and also his testamentary right under the will, but is required to make his election, either to confirm the will» and with it the alienation of his own proprietary estate to another, or, reclaiming his own estate, to surrender or renounce that devised to him. He shall not hold both. If he renounce the will, equity does not permit the rejected devise to merge or sink as undisposed of, but sequesters it, pro tanto, to compensate the devisee for whom a bounty was '.intended, but of which, by the renunciation, he is deprived. This is equitable, compensation.
    So where a testator, out of his estate, makes a provision for his widow in lieu of dower in his lands, and at the same time devises to another the lands in which dower inheres, he is presumed to have intended the purchase of her dower, and its alienation to the devisee, the consideration thereof being the testamentary provision made for her. But the testator not having the power of absolute disposition over his wife’s paramount estate, she may assert it against his will. Yet as it would frustrate his purpose, and defeat the benefit, pro tanto, intended for the devisee, if she be permitted to retain both the provision and dower, the law requires her to elect between them. If she renounce the will, and assert dower, equity does not permit the rejected provision to merge or sink as intestate, but seizes upon and sequesters it to compensate the devisee, whose intended bounty she has diminished by the assertion of dower in the estate designed to be given him, freed therefrom.
    Such is, and for centuries has been, the law of England and America. See Dillon v. Parker, 1 Swanst. 400, n. ; Gretton v. Haword, 1 Swanst. 441, n.; 2 Story’s Eq. § 1075, 1083; 1 Leading Cases, Eq. 304, n. ; 2 Redfield on Wills, 744, et seq. ; 1 Jarman, 2 Roper on Legacies, 1661; Roper’s Husband and Wife, 566, n. ; Timberlake v. Parish, 5 Dana, 345; McCallister v. Brand, 11 B. Monroe, 395; White v. Brocaw, 14 Ohio St. 348 ; Kinnaird v. Williams, 8 Leigh, 409 ; Dixon v. McCrue, 14 Gratt. 540.
    A will is the testamentary intention of a competent person, made known in the mode authorized by, and exerted in a manner not inconsistent with the law governing its subject matter.
    
    
      At the threshold, then, is the inquiry, what law governs the construction and controls the operation of Mr. Jenning’s will ? As the question concerns the succession of real property in Ohio, it might be supposed that since the decision of Bailey v. Bailey, 8 Ohio, 275 ; Mees v. Keefe, 10 Ohio 362, and Manual v. Manual, 13 Ohio St. 463, it was res adjudicada, and not longer open for discussion. And see 1 Jarman, pp. 2, 3 ; 2 Id. p. 762 (Eng. Ed. 1861) Rule I; 1 Redf. 397-8, § 30, s. 8 ; Wills act, secs. 26, 43, 44, 52. Sections 43 and 44 of the will’s act embrace foreign as well as domestic wills.
    All the reasons urged for the exclusion of foreign wills are based on recent amendments to sections 43 and 44. That requiring citation was enacted in 1858: Those respecting the mansion house, an allowancé, explanation by the court, etc., are of a date but little more remote. The statutory provision obliging widows to elect, and forbidding them to take both under the will and at law, did not originally contain these modern provisions.
    It results, then, that if foreign wills have become excluded from section 43 by these amendments, they could not have been- excluded before the amendments existed. So that foi*merly, at least , such wills were within its purview.
    Was it intended by these amendments to exclude such wills ? The statute does not so declare ; nor do the nature and effect of the amendments necessarily require it.
    The statute originally contained, as now, section 45. The legislature certainly intended not to impair its operation or force, else it would have been repealed. But this section remaining in full force and unrepealed, it follows that citation, personal election in open court, and explanation by the judge, are not essential conditions of the statute, for they are restricted to widows residing in the county of the court. There is, then, nothing in these amendments to- exclude the will of a testator non-resident of the State, that may not be urged with equal force to exclude the wills of testators nonresident of the county. Hence, if the reasoning be sound, a widow, to evade the statute, need only remove from the county before citation issues. But she cannot thus evade it, for a commission may issue. And if it may issue to another county, it may to another State.
    But neither citation nor commission is essential. A widow may now, as before these amendments she was required to, voluntarily appearand make her election. Or she may elect inpais, as in Kinnaird v. Williams, 8 Leigh, 409, and Thompson v. Hoop, 6 Ohio St. R. 480, or by demanding the judicial recognition of her rights at law, to the exclusion of the will, as the plaintiff is now doing.
    The construction of this will is within and governed exclusively by the laws of Ohio, so far as it concerns realty therein; and it must receive the same construction as if ■ made in Ohio, in conformity with the laws thereof. Being so construed, obliges the plaintiff to elect between her provision and dower in said realty. If comity required it to be construed according to the laws of Virginia, the same comity demands that the construction given to it by a court of competent jurisdiction in Virginia, and the judgment of that court shall be recognized and respected, as having determined the obligation of the plaintiff to elect there, and hence also here; and therefore, being obliged to elect, and having elected, the incidents and equities of the election fob low necessarily.
    In cases touching the question whether a case of election is raised against a devisee, between whom and the testator the relation of coverture did not exist, the common law rule of construction controls ; as in Walker v. Hall, 15 Ohio St. 355.
    In all cases touching the question whether an election has been raised against a widow, between whom and the testator the relation of coverture did exist, the rule of the statute, reversing that of the common law, governs. 1 Jarman, 352, Perkins’ note ; Van Arsdale v. Van Arsdale, 2 Dutcher, 409, 410 ; Young v. Smith, 2 Metc. (Ky.) 410; Timberlake v. Parish, 5 Dana, 352.
    Compensation is an incident of every election, whether at common law or under the statute. 17 Pick. 422 ; 2 Sugden on Powers, 145 ; 1 Swanstou, 400, 402, (n); U. S. v. Duncan, 4 McLean’s Rep. 101; Key v. Griffin, 1 Richardson’s Eq. Rep. 67 ; 2 Redfield, 742, § 7 ; Ib. 746 § 19 ; White v. Brocaw, 14 Ohio St. 348 ; Welby v. Welby, 2 Ves. & Bea. 190, 191; 1 Lead. Cas. Eq. 304; 2 Roper, 1661; Adams’ Eq. 267 ; Roper’s Husband and Wife, 566, note; Gretton v. Haword, 1 Swanston, 441; McCallister v. Brand, 11 B. Monroe, 395 ; Kinnaird v. Williams, 8 Leigh, 400-409 ; Dixon v. McCue, 14 Gratt. 540 ; 1 Jarman, 440.
    The claim that compensation is allowed only in a case where the widow takes something under the will, is a misapprehension of the doctrine. It is allowed only in a case where she would have taken something under the will if she had confirmed it; but does not because she has renounced and dis-affirmed it. That which she renounces goes as compensation, because she does not take it.
    The adjustment is without difficulty. One-third of the lands must first be aparted to the plaintiff as dowress. Of course, one-third of this dower will fall upon the life devise to the plaintiff, and two-thirds upon the devise to the defendants. The two-thirds of the life devise, not consumed by dower, is the exact equivalent of the two-thirds of the dower falling on defendants. Between these, equity, by sequesti’ation, effects an exchange, casting the whole of the undisposed fee under the dower estate, and leaving the devise to defendants freed therefrom.
    
      J. A. Ambler and Thomas Kenneti also for defendants:
    1. This case being in regard to land in Ohio, the laws of this State regulate the matter, and not the laws of West Virginia. Bailey v. Bailey, 8 Ohio, 239; Meese et al. v. Keefe et al. 10 Ohio, 262, and cases there cited ; Manuel et al. v. Manuel, 13 Ohio St. 463; Wills’ act, S. & C. 1620, sec. 26 ; S. & C. 1623, 1624; 1 Chase, 473 ; 2 Chase, 929, 1305 ; 3 Chase, 1785 ; 1 Curwen, 691.
    2. The plaintiff is bound to elect between dower and the provisions in her favor in the will of her late husband. She is here insisting that she has elected and bases her rights on that election. See Wills’ act, sec. 43, S. & C. 1623; Reed v. Dickerman, 12 Pick. 146.
    3. Those persons disappointed by her election against the will, should be compensated for the dower she takes from them on that election. 2 Story’s Eq. secs. 1076, 1078, 1083, 1088 ; Adams’ Eq. (4th Am. ed.) p. 267 ; 1 Leading Cases in Eq. p. 402; Grelton v. Howard, 1 Swanstou, 409, note.
    The doctrine of compensation is not changed by our statute, but is sustained by its justice and by authority. White v. Brocaw, 14 Ohio St. 348 ; Maskell v. Preston, Weekly Law Gazette, July 3d, 1858, p. 65, Cincinnati; 5 Call. 481, 482, 489; 2 Spencer’s Eq. Jur. 601; 2 Story’s Eq. Jur. secs. 1083, 1084, 1085 ; 6 Ala. 243; 11 B. Monroe, 470, 383 ; 8 Leigh, 409 ; 1 Call. 481, 492, 499 ; 12 Pick. 150 ; 1 Cush. 66, 70, 72.
    Justice demands that each legatee shall have as near what the testator said he should have as can be given, without interfering with the fixed rights of others ; and this justice lies at the foundation of the equity doctrine of compensation, which we insist ought to be applied to this case.
   Scott, C. J.

The will of Simeon Jennings, under which the questions in this case arise, was executed in West Virginia, where the testator was domiciled at the time of his death. He OAvned numerous tracts of land, many of which are situated in this State, and also personal property of the value of $200,000 or more. By his last will and testament, duly probated in West Virginia, and admitted to record in this State, he gave to his wife, the present plaintiff, one-half of all his personal property, and one-third of all his real estate wherever situated, during her natural life. To the defendants, who are his surviving brothers and sisters, and the descendants of deceased brothers and sisters, he gave one-half of all his personal property, and two-thirds of all his real estate wherever situated. The will makes no disposition of the remainder in fee of the third of his lands devised to his wife for life ; and as he left no issue, she succeeds to this undevised estate, as his heir.

The plaintiff has elected not to accept the provision made for her by the will of her husband; and in the assertion of her supposed statutory rights, she now demands partition of the lands in Ohio of which her husband died seised ; of which she claims to be the owner in fee of an undivided third part, as heir at law of her late husband ; and also asks for the assignment to her, as his widow, of dower in the remaining two-thirds which were devised to the defendants.

This claim is partially resisted by the defendants, who insist that the provision made for the plaintiff in the will of the testator, was intended by him to be in lieu of dower; and that it was his intention that they should hold the two-thirds of his lands devised to them, free from her right to dower therein ; and that if this intention be defeated by her rejection of the provision made for her by the will, and the assertion of her rights as dowress, they are entitled, for what they thus lose of the testator’s intended bounty, to be compensated out of the devise which she rejects. And as her dower estate in the two-thirds of the land devised to them, is the exact equivalent of what is left of the one-third devised to her, after taking out her dower therein, they claim that she is entitled simply-to one-third of the lands in fee simple. They concede that she is entitled, as dowress, to a life estate in one-third of all the lands of which partition is sought, and that as heir she is entitled to the remainder in fee, of the undivided third part of the same lands, after the termination of the life estate devised to and rejected by her; and that these estates, if assigned to her in the same third oí the land, will, by merger, constitute a fee simple; leaving to them the remaining two-thirds of the land in fee, free from dower, which will be neither more nor less than the testator intended to give them.

These conflicting claims give rise to the questions in this case. In the consideration of the case we shall inquire :

1. "Whether the provision made for the plaintiff, in the will of the testator, is to be regarded as having been made in lieu of dower, or in addition to dower.

2. If the provision be in lieu of dower, then does an equitable right to compensation arise in favor of the defendants, from the plaintiff’s election to reject the provision and assert her right to dower ?

We find nothing in any part of the will, which either expressly, or by necessary implication, answers the former of these questions. In .such a case, the doctrine of the common law is that the- provision shall be regarded as having been intended to be given in addition to dower. And such, it is conceded, is the law of West Virginia, the place of the testator’s domicile. The 43d section of the wills’ act of this State reverses this rule of construction, at least as to domestic wills ; and declares that if any provision be made for a widow in the will of her husband, she shall make her election, whether she will take such provision or be endowed of the lands of her husband; but that she shall not be entitled to both, unless it plainly appears by the will to have been the intention that she should have such provision in addition to her dower. Now, in the case of a foreign will, devising lands situated in this State, is its construction to be governed by the law of the testator’s domicile, or by that of this State, within which the lands devised lie ? Laws cannot, proprio vigore, have any extra territorial operation or effect. And in regard to wills of real property, it is well settled by all the authorities, that the construction, as well as the mode of execution and validity of such wills, must be governed exclusively by the lex rei sitae. The question of testacy or intestacy, as to real estate and the succession, in either case, is governed solely by the law of the place where the property is situated. 1 Redf. on Wills, 307, 8 ; 1 Jarman, 2, 3; 2 Jarman, 762. Bailey v. Bailey, 8 Ohio, 239 ; Meese v. Keefe, 10 Ohio, 362; Manuel v. Manuel, 13 Ohio St. 463, and authorities there cited.

It is true that in regard to the mode of execution and probate of foreign wills, the 26th section of the wills’ act of this State provides that authenticated copies of wills executed and proved according to the laws of any State or territory of the United States, relative to property in this State, may be admitted to record, in the probate court of any county in this State, where any part of such property may be situated; “ and such authenticated copies, so recorded, shall have the same validity in law as wills made in this State, in conformity with the laws thereof, are declared to have.” But, in such case, the validity of the foreign will, of which a copy is thus recorded, is derived from the provisions of this section, and not from the foreign law, to which its execution and probate conform.

But, it is claimed that, admitting that the construction of the will in this case is governed by the law of this State, yet that the rule of construction prescribed by the 43rd section of the wills’ act, to which we have referred, was clearly intended to apply only to domestic wills. The section in full reads thus:

“If any provision be made for a widow in the will of her husband, it shall be the duty of the probate judge, forthwith after the probate of such will, to issue a citation to said widow to appear and make her election whether she will take such provision or be endowed of the lands of her said husband ; and said election shall be made within one year from the date of the service of the citation aforesaid : but she shall not be entitled to both, unless it plainly appears by the will to have been the intention that she should have such provision in addition to her dower.”

We think it must be conceded, as claimed by counsel, that the provisions of this and the following sections, which prescribe the time and manner of making her election, and the effect of her election to take under the will, &c., ai’e clearly inapplicable to the case of foreign widows, and were only intended to apply to domestic wills, where the probate of the will and the settlement of the estate would properly belong to tne probate courts of this State ; and that the purpose of these provisions was, as counsel suggest, to secure a. free choice to the widow ; to require her to elect within such time as would not delay the settlement of the estate ; and to make the final settlement conform to her election. Still, it does not follow that the rule which the 43rd section prescribes for the construction of the will, was not intended to be general, and to apply in all cases in which its construction would properly belong to the courts of this State. The purpose of the rule prescribed was, no doubt, to carry out, and not to defeat the intention of the testator. The enactment proceeds on the idea that where a provision which can properly be called such, is made for a widow in the will of her husband, and it does not plainly appear from the will that the testator’s intention was that it should be in addition to dower, that his intention would generally be more likely to be effectuated by regarding the provision as having been made in lieu of dower, than by following the common law rule. The statute therefore raises a presumption as to the intention of the testator, in such a case as conclusive on that question as the plainest words in the will could possibly have made it.

This is not the only instance in which the statute construes particular Ismguage in a will as indicative of au intention wholly different from that which the same language would indicate, if construed according to the rules of the common law. The 53rd section of the same wills’ act reverses the rule in Shelly's case. It does so. doubtless, because the legislature believed that rule of the common law tended to defeat, rather than to carry out, the intention of testators. There can be no doubt but that the rule of construction, thus given by the 53rd section, applies to all wills, wherever made, whatever may be the rule governing that subject in the place of the testatatof’s domicile. Now, why should the intention of the testator be ascertained in the latter case, by a rule of construction prescribed by the lex rei sito;, and in the former case, by the law of the domicile ? Did the legislature intend that the legal force and effect of a foreign will, when duly probated abroad, and admitted to record in this State, should be different from that of a domestic will couched in the same terms ? Did they intend, on principles of comity, to adopt the foreign law, not only in regard to the mode of formal execution of a will, aud the effect of the judgment of a- foreign court of probate, as to the conformity of the execution of the will with the requirements of the law of the testator’s domicile, but also as furnishing the rule of construetion for the will, when thus executed and duly proved in a foreign jurisdiction ? No principles of comity require that in a will of real property, the construction and effect of plain and unambiguous terms shall be g'overned by the law of the domicile, and not by the law of the place where the property is situated. The Ohio statute clearly repudiates, in respect to domestic wills, the rule of construction given by the common law ; and as to foreign wills, it declares that when duly executed and proved according to the law of the testator’s domicile, authenticated copies of such wills and probate, when admitted to record in this State, and duly recorded, “ shall have the same validity,” [that is, the same legal force and efficacy] “ as wills made in this State, in conformity with the laws thereof, are declared to have.” The effect of this provision, as was said in Bailey v. Bailey, 8 Ohio, 239, was merely to place the will on the same footing as though the original probate had been made in this State ; that is, to place it on the same footing as that of a domestic will. Now, if the foreign and the domestic will both stand on the same footing, are both to have the same legal force and efficacy ? They must both be subject to the same general law of construction, unless the statute provides otherwise. To hold otherwise, would be to give an operation and effect to the one, which is denied to the other ; and to make the construction and effect of the testator’s will, in its operation upon titles to lands in this State, depend upon the law of another sovereignty. We cannot believe that such was the intention of the legislature.

If we are right in these views, it follows that, under the statutory rule of construction, we must presume it was the intention of the testator, that the provision made for the plaintiff in his will, should be in lieu of dower. And on the question of his intention, this presumption is as conclusive as the plainest language in his will could haye possibly been. And this being so, a necessity forelection arises, from the very nature of the case. The widow cannot claim, both under the will, and adversely to it. She has a right to do either, but cannot do both. It may not be necessary, in the case of a foreign will, that she make her election within the time, or in the manner, prescribed by the statute in the case of domestic wills. Nevertheless, the will, properly construed, having created a case for election, at common law, such election must be made, whenever the protection of the rights of other interested parties makes it necessary ; and in such manner as will be binding upon her.

No difficulty on that subject arises in this case, for she avers in her petition, that she has elected not to take under the will of her husband ; and the defendants do not call this averment in question.

The authorities concur in holding, that a bequest of property by a testator to his wife, with the intention of its being in satisfaction of her dower, creates a case of election. 2. Story’s Eq. Jur. § 1088, and authorities there cited.

It remains to consider, briefly, whether the right to compensation results in favor of defendants, as an equitable incident of the plaintiff’s election adverse to the will.

The doctrine of election and compensation is acted upon and enforced by courts of equity ; and may be stated thus:

If a testator assume by his will to give to A. property which belongs to B., and by the same will makes a bequest or devise to B. of property which he has the right to dispose of, B. is not permitted to take the property thus given him by the will, and at the same time assert his rights of ownership in the property given to A. He may do either, but not both: Hence, a case of election arises ; and if he elect to reclaim his own property, a court of equity will sequester so much of the bequest or devise in his favor, as may be necessary to compensate A. for that which is taken from him by the election.

The rule is thus stated by Mr. Swanston : “In the event of an election against the instrument, courts of equity assume jurisdiction to sequester the benefit intended for the refractory donee, in order to secure compensation to those whom Ins election disappoints.” Gretton v. Haword, 1 Swanst. 441, note.

“The effect of election is not to divest the property out of the donee, but to bind him to deal with it as the court shall direct.” Adams’ Equity, 267.

The whole subject is fully discussed by Justice Story, in his commentaries, on Equity Jurisprudence, Yol. 2, § 1075. et seq. And it may suffice to say, that the doctrine of compensation, as incidental to testamentary election, is an old and well established one. And resting as it does on principles of the clearest equity, no good reason is perceived for denying its proper application to the case of a widow who elects to withdraw her right of dower from the operation of the will, and to forego the benefit of a provision made for her in the will, in lieu thereof. Where a will contravenes no public policy, effect is to be given to the intention of the testator, in so far as the protection of the rights of others will permit. A widow has a perfect right to insist that the dower, which the policy of the law awards to her, shall not be taken from her by the will of a deceased husband. But she has no equitable right, as widow, to insist that the benefit intended by the testator, as a compensation for her dower, shall be treated, upon her rejection of it, as a lapsed legacy or devise, and go to the heir as intestate property. And her rights, as widow, are not affected by the fact that she may be, as in this case, herself the heir.

The authorities cited by counsel for defendants clearly show that the rule in cases of testamentary election, is compensation or forfeiture, and not intestacy ; and that the principle of compensation is applied in the case of an election against the will by a widow, equally with that of a similar election by any other devisee. Timberlake v. Parish, 5 Dana, 352 ; McCallister v. Brand, 11 B. Monroe, 395 ; Kainnaird v. Williams, 8 Leigh, 400-409 ; Dixon v. McCue, 14 Grattan, 540.

We are of opinion that the defendants are equitably entitled to take the two-thirds of the life estate devised to the widow and which she rejects ; this being the exact equivalent of the dower estate which she rightfully claims in the premises devised to them. The result is, that we find the plaintiff entitled to one-third part of the lands described in her petition, in fee simple ; and. that the defendants are entitled to the remaining two-thirds of the same lands, free and discharged from the plaintiff’s right of dower therein.

Decree accordingly.

Welch, White, Day and McIltaine, JJ., concurred.  