
    Sarah C. Hall v. William Hall and Others.
    The courts now adhere more strictly to the statute of frauds than formerly. Parol evidence is inadmissible to set up a parol agreement between husband and wife, to compensate the wife for consenting to renounce her dower. In what cases parol evidence is admissible as to wills. No case where the court has admitted parol evidence to add or strike out a clause in a will on such evidence of declarations of intention after the execution of the will, and the lapse of any time. Admitted in cases of latent ambiguity. And to prove what property was intended, there lining two parcels of the same descriptions. But these cases are treading on dangerous ground. The case is within the statute of frauds. Tlie renunciation of dower is not such part performance as will admit parol evidence to enforce a specific performance. Part performance, it seems, will sometimes take a case out of the statute of frauds, where a specific performance is sought. But it must be where the contract is between man and man acting at arm’s length. The fact that the wife lias renounced her dower raises no presumption that she is to be compensated, in order to let in parol evidence of an agreement to compensate. The court is particularly reluctant to let in parol evidence after the death of one of the parties, where a specific performance is asked. Parol evidence not admissible to shew that the testator did not intend a devise to lose by a sale of the land devised by the testator before his death. Where the testator gives his wife an annuity until his estate is settled, and his debts and legacies are paid, it is not a ground for non-payment that it would be a devastavit in the executor, if the estate should prove insolvent, there being no probability of an insolvency. A widow cannot be compelled to elect before the estate is settled, and if the will allows her an annuity until the estate is settled, it is no objection to the payment of the aimnity, that she has not elected. In some eases the widow has been allowed to retract from an election prematurely made, the condition of the estate not being known. Where an annuity is given without, particnlarinstructions, it is payable at the end of the year. Annuity left to the wife, payable “annually, or in any way she may wish,” ordered to be paid quarterly in advance. The testator left his widow a “ provision in lieu and bar of all claim of dower, inheritance or any other claim on her part.” Held that the widow was not excluded from a distributive share of real property purchased by the testator after making his will, and as to which he died intestate. The testator’s private debts are first to be paid out of his private estate, and his copartnership debts out of his copartnership funds. The personal estate is first liable to pay debts of a-deceased person. The statute abolishing the laws of primogeniture does not alter the law in that respect, which is the English rule. Descended real estate is not first liable. The English rule: — 1. Personal estate not bequeathed. 2. Personal not specifically bequeathed. 3. Lands devised to be .sold to pay debts. 4. Descended real estate. 5. Lands devised subject to payment of debts. Where the testator devised lus estate real and personal tobe divided among his next of kin “as soon as his debts and legacies are paid” and “not until then,” it charges the estate with payment of the debts and legacies: and^ftcr acquired real estate, as to which the testator died intestate, is exonerated until the other is exhausted. A debt due from the executor to the testator is considered as cash in the hands of the executor. The court will often order it to be paid into court for the security of the parlies interested. The application of testator’s private funds to his copartnership debt ordered to be corrected. Widow not bound to elect before the estate is wound up, and may receive her annuity under the will in the mean time, the estate being solvent. Slaves specifically bequeathed, not liable for debts before descended real estate. There are two classes of cases of election : 1. Where there are inconsistent dispositions; and 2. Where a condition is annexed to the gift. The intention must prevail, unless technical words arc used, which must receive their technical meaning. The decree of the chancellor as to the question of election confirmed. Chancellor’s decree confirmed in other respects. The rule as to the payment of debts not so inflexible as not to be departed from on some occasions. A report of the commissioner is necessary before the court will order the executor to pay into court a debt lie may owe the testator, there being a settlement of accounts to be made.
    This case arose under the last will and testament of the Jate Mr. Ainsley Hall, of Columbia, South Carolina, duly executed on the 3d of May, 1822, which he left in full force when lie died in August, 1823. By his will he directed,
    1. That all his individual debts should be paid out of his individual estate and the proceeds of his plantation, and that the division of his estate thereinafter directed should not take place until all his debts and legacies should be paid.
    
    2. He further directed that on his decease the co-partnerships of Kirkpatrick, Halls & Co., of Charleston, and Halls, Kirkpatrick & Co., of Columbia, of which he was a member, should be dissolved (so far as he was concerned,) and that his share of the profits of said concerns, at the time of his death, be considered as part of his estate, to be disposed of, as directed by his will.
    3. That all debts due by A. & W. Hall <fc Co., Halls, Kirkpatrick
    & Co., and Kirkpatrick & Halls, *be paid out of the funds of said concerns before recourse be had to any other part of his estate.
    4. He devised the house and lot in the town of Columbia, occupied as his dwelling house, with its appurtenances, furniture, &c., carriage and carriage horses, and six house servants (whom he names) to his wife, Sarah C. Hall, during her life; and that at her death, the said property should be divided in the manner specified, and among the persons named in the sixth, seventh, eighth, and ninth clauses of his will.
    
      5. He directed that his wife, Sarah C. Hall, should be paid annually, or in any way she, might wish, §3,000 for her support until his estate should be divided as lie directed by his will, and that such sum should not be considered as part of her third as thereinafter divided.
    6. That as soon as his debts and legacies were paid, his estate, real and personal, should be divided into three equal parts, without being delayed by any provision made in his will for annuities.
    7. He devised to his wife, Sarah C. Hall, one of the three parts during her life, with a power of disposing by deed or will over one-half part thereof, whether she should leave issue or not. And if she died without making any disposition, then he devised the, same to her brother, Jesse Goodwyn and his heirs. The other half she might dispose by will in case she should leave issue living at her death, &c. But in case of her leaving no issue, or such issue should die before attaining twenty-one years of age, the said last mentioned half of the said one-third should be equally divided between his brother, William Hall, George Cotchet, John Cotchet and Eliza Mary M’Cord, their heirs, &c.
    8 and 9. He devised the other two-thirds of his estate amongst his brother, William Hall, and nephews and niece, George Cotchet, John Cotchet and Eliza M. M’Cord in certain proportions.
    *The clauses from the tenth to the twenty-fifth inclusive, contained various legacies and annuities to several of his friends to the amount of about §10,000.
    The twenty-sixth directed that in the division of his estate under his will, his wife should have allotted her, as part of her third, the negroes and their increase, which he got by her in marriage. He then proceeds to give directions respecting the management of his planting interest and estates, and to make regulations respecting Mr. Thomas, who was concerned with him therein.
    By the twenty-seventh the testator desired “that the provision made by his will for his wife should be taken in lieu and bar of cdl claim of dower, inheritance, or any other claim, on her part.”
    
    By the twenty-eighth he declared his wife, Sarah C. Hall, his brother, William Hall, George Cotchet, John Cotchet, and Eliza M. M’Cord, his residuary legatees, and devised to them absolutely any residue that might be.
    By the twenty-ninth, he earnestly recommends to his legatees and executors that all matters of dispute arising between them should be referred to one or more gentlemen of the. law, and that the opinion of the referee be conclusive.
    The thirtieth nominated Sarah C. Hall, executrix, and William Hall, George Cotchet, James Hopkins and John Hopkins to be his executors.
    After the execution of his last will and testament, the testator sold and conveyed his mansion house in Columbia and the furniture thereof to General Hampton, for the sum of §37,000. He then purchased a square in the same neighborhood and contracted to build thereon another mansion house, which contracts were, in part, executed at the time of his death. These contracts amounted to about §22,000.
    On the death of Mr. Hall, all the devisees and legatees in America were living, and William Hall and *George Cotchet proved the will and qualified thereon as executors, and took possession of the estate. Disputes having arisen among the devisees and legatees, this bill was filed to have the judgment of the court thereon, and for the settlement of the estate.
    The first question which was brought before the chancellor was as to the right of the complainant, the widow, to produce parol evidence to prove that she was induced to renounce her dower in the house and lot by the promise of her husband to purchase another lot, and build another house on it of equal value with the former and give it to her. That in pursuance of his promise he did purchase another lot, and contracted to build a handsome brick house thereon, and declared his intention to give her the same. But unfortunately ho died before the house was finished, and without having executed any deed, instrument, will, or other writing for carrying into effect his intentions and promises in favor of his said wife. The object of the parol evidence was to establish these facts, and to obtain compensation or relief in sucha way as might be judged proper, out of the estate of Mr. Hall. The defendant objected to the admission of the parol evidence, on the ground that it was contrary to the statute.
    Greog and Stark for the evidence.
    Harper, Preston, M’Cord and DeSaussüre, contra.
    February, 1826. DeSaussure, chancellor. This question has been fully argued, and I have considered it attentively.
    The mind of every judge is anxiously disposed to get at the whole truth in every cause, so as to enable him to decide knowingly on the merits of the case. There is, therefore, always a reluctance to shut out evidence *which might, if admitted, disclose important facts applicable to the cause.
    Experience has, however, demonstrated that there is great danger in the universal admission of testimony. Various rules have been established to guard against the admission of testimony which might mislead the court. Hence the exclusion of all witnesses who are interested, on account of the bias on the mind of every human being in his own behalf. This rule is uniform in its application, and excludes every day witnesses of the purest integrity. Experience also demonstrated, that in many other cases it was proper to restrain the free admission of testimony even where the witness had no interest. Hence the statute of frauds was enacted, declaring that certain transactions in life should be in writing. It is unnecessary to state the provisions of that famous statute, which was considered so valuable at the time of its enactment, that Lord Nottingham, the great founder of the modern system of equity, declared every line of it to be worth a subsidy; and posterity has confirmed the judgment.
    Still, such is the reluctance of the mind to give up testimony which may lead to truth, in particular cases, though known to be dangerous, in general, that the judges gradually relaxed in the application of the statute, until great experience again retaught the danger, and compelled them to admit that the wisdom of the law is greater than the wisdom of individuals, however enlightened. In consequence of this the courts adhere more strictly to the statute, in our time, than they did some time since. This we perceive in the case of Cooth v. Jackson, 6 Yes. 12, and other cases in England, and in Givens v. Calder, 2 De-satis. Rep. 171, in this State. In the case we are now considering, the offer of parol evidence is to establish a right in the complainant to a provision out of the estate of Mr. *Hall, equivalent to the property devised to her by the will of Mr. A. Hall, and afterwards sold by him. In other words, it is to add a clause or a codicil to his will in her favor, which, it is alleged, he was bound to do, and was willing to do, but was prevented by death; or it is to set up a parol agreement to make compensation to the wife for consenting to renounce her dower in the land in question.
    There are cases, certainly, in which the court has, upon plain proof of mistake or fraud, struck out clauses in a will, and, in others, added clauses. The example of the former is, where a clause has been inserted by misapprehension in the testator; as where he makes a provision by will for persons for whom he had already provided in another way, but was induced to believe the same was a nullity, and on that ground alone gave the legacy, as in Webley v. Beale’s executor, 3 Desaus. Rep. 504. Yet even there, it was thought to be so dangerous, that it was preferred to put the case on the ground of an election between the twro provisions. The example of the latter is, where a testator is about to make provision for a particular person, and is dissuaded on account of his own illness, and assured by his heirs and devisees that they would make the intended provision. In such cases the court compels the persons benefitted by the will to make the provision promised, and attempted to be eluded, which, in effect, is adding a clause to the will on parol evidence. So in Lyde’s case, a clause intended and directed to be made by the testator was decreed to be supplied. All these cases, however, were founded on the transactions which occurred at the time of making the will. I do not recollect a single instance, nor has any been quoted, in which the court ever consented to add or strike out a clause in a will on parol evidence of transactions or declarations of intention after the execution of the will, and the lapse of any time. In other cases parol evidence has been ^admitted to explain latent ambiguities, as in the case of two persons bearing the same name. There, parol evidence has L been received to explain which of them was intended by the testator as the legatee. And so parol evidence has been received to prove what property was intended when the testator was possessed of two of the same description. All these cases are, however, treading on dangerous ground, which is constantly giving way under our feet, and sinking us into the quagmire of parol evidence, contrary to the provisions of the statute.
    It is a vain attempt to seek for universal justice in every particular case, even at the expense of those enactments which were made to attain a safe general rule. Lord Chancellor Talbot felt this danger so strongly, that he refused to allow a clause to be inserted in a will (for it cannot be disguised that that is the effect,) though it was proved, by unquestionable parol evidence, that it was the decided intention of the testator to insert a clause giving a large legacy to a particular person, but was dissuaded by his counsel on the ground that it was unnecessary, as the legatee would get what he intended to give him in another way and character. In that case Lord Talbot was satisfied, that the mistake of the counsel had misled the testator contrary to his intentions, yet he thought it too dangerous to act on parol evidence. See Roberts on Wills, p. 3, and Cas. Tem. Talb. 240.
    It is unnecessary to follow out the examination of the various cases on this subject. The case we are considering does not appear to me to fall within any of those in which parol evidence was received; and I do not feel at liberty to enlarge the boundary of parol evidence, especially where the parol evidence related to transactions long after the execution of the will. It was, however, contended for Mrs. Hall, that this was an agreement by which she consented to renounce her contingent dower in the house and lot devised to her, in consideration Prom'se made to her that a house and lot should be purchased and given to her; and that she, having performed her part of the contract, was entitled to have the benefit of it out of the estate of Mr. Hall, who was prevented from fulfilling it by death.
    I will not stop to inquire into the capacity of the wife thus to contract with her husband for the renunciation of her legal rights, nor into the old custom of the country now disused, that the purchaser, in order to make his purchase secure, must give the wife a gown or a petticoat for her renunciation of dower. But I will at once examine the question on the supposed state of facts. If it be considered as a contract for land, it becomes subject to the statute of frauds. There is not a tittle of proof in writing. The agreement offered to be proved is acknowledged to be wholly parol : the terms are stated to be wholly parol. Then consider the extreme uncertainty of witnesses remembering terms expressed loosely, at various times, to persons not called upon to witness any act. The bill of Mrs. Hall put it on the ground that the promise was to build as good a house for Mrs. Hall as the one sold to General Hampton for 837,000; and this for renouncing a contingent dower. All this alarms the mind, and drives it from reliance on loose and floating recollections of verbal declarations testified even by good and accurate men, to the safe harbor of the statute.
    The renunciation of dower is stated as part performance, which is argued to be sufficient to take the case out of the statute. The counsel wisely laid stress on this ground. Without this they would not have had an inch of ground to stand upon. I have paused on this, and should not have regretted that it had furnished a basis strong enough to support the claim. For it cannot but be a subject of regret that this lady should be deprived of a benefit intended for her by her husband, by the subsequent sale of the property devised to her. I cannot* however permit these regrets to guide my judgment: I must decide according to law.
    Part performance certainly in some cases takes the case out of the operation of the statute; formerly on too easy terms; latterly more strictly guarded. Part performance in contracts between man and man acting at arm’s length, each pursuing his own interest, raises a presumption of some corresponding obligations on the other side, and thus induces the court reluctantly to open the door to parol evidence in a limited circle of cases. Is that presumption raised by a wife’s renouncing her dower here? In this country, where lands are sold as frequently almost as personal property, there is not one case in a thousand where any compensation is stipulated or given to the wife for renouncing her dower. 1 do not say she may not so stipulate, but 1 do say that the fact of renouncing dower raises no presumption of such a stipulation. Not a single case exists of such a demand in our courts of justice by a wife against her husband or his representatives on this ground. And the absence of any such case shows how little reliance can be placed upon it as a basis on which to ask the court to let in parol evidence to establish such a contract. It is inconceivable what an extent of litigation might ensue from opening this door. It would apply to all cases of dower renounced by the wife : and in every family which was unfortunate, and stimulated by necessity, applications might be made to obtain relief through parol evidence of promises of compensation for renouncing dower. And this too always of course after the death of the husband. The court is particularly reluctant to let in parol evidence in cases seeking specific performance of a parol contract, after the death of one of the parties.
    Upon the whole, I feel bound to say that I dare not admit this evidence, however hard the case may be, and *however satisfied I might be that there would be no danger of perjury or fraud in this case. I must act on principles, and they are against the admission of the parol evidence offered.
    The motion for the admission of parol evidence must therefore be refused.
    Mr. Gregg then moved the admission of the same evidence to prove that the testator did not intend that Mrs. Hall should lose and be deprived of any benefit under his will, by the sale of the house and lot to General Hampton. This evidence was rejected on the same grounds.
    Another question in this case arose upon the annuity bequeathed to the wife. The executors refused to pay the annuity to Mrs. Hall, on the ground that the estate was considerably indebted, and that the debts should be paid before her annuity. It was admitted by the executors, that they thought the estate was worth §300,000. But there were debts of A. & W. Hall & Co. and Halls, Kirkpatrick & Co. due to British merchants, and guarantied individually by A. Hall, and they therefore contended that these debts, as well as others, should be paid before the widow could receive her annuity.
    Gregg, for the widow.
    Preston, for the executors.
    March, 1826. DeSaussure, Chancellor. The testator directs, that the annuity of §3,000 should be paid his widow in any way she might wish, and at any time, for her support, until his estate should be divided, which was not to take place before his debts and legacies were paid. The executors allege, that the estate is considerably indebted, and they state it will require a considerable time to *get in the assets and pay off the debts. This state of things was manifestly foreseen by the testator, for he looks to and provides for the payment of considerable debts, and directs that all his individual debts be paid out of his individual estate and the proceeds of his plantations : and that all the debts due by the co-partnership, in which he was concerned, should be paid out of the funds of said concerns before recourse should be had to any other part of his estate; the co-partnership to be dissolved, and his share of the profits to be considered part of his estate. And it is immediately following- this sentence, and forming part of it, he makes the provision for the annuity of his wife. The executors have paid on account of the annuity (according to their statement) $6,448 50. But they have since objected to go on with the payment of the annuity on two grounds. First, that the estate being greatly indebted, it was possible there might be an insolvency; and in that case any payment of the annuity would be pro tanto a devastavit. Their own statements shew such a large surplus that it is next to an impossibility for an insolvency to occur, unless the estate should be grossly mismanaged and wasted. This ground wras not seriously persevered in. If it had been, and should be supported, then it would be impossible, in any case, for a testator to provide for the temporary subsistence of his wife until his estate, if at all complicated, could be settled and divided.
    The other objection was, that the wife had not yret made an election to take under the will, or to give up her claims under the will, and resort to her legal claims; and that she was bound to do so immediately before payment of the annuity.
    I think this objection is not well founded. The testator appears to have foreseen that it would take some time to wind up his affairs, and pay his debts; for he directs this annuity to be paid his wife, as a support, *till his debts and pecuniary legacies should be paid; -when, and not before, a division of his estate should be made among his devisees and legatees. Now, until the settlement of the estate, the law gives the wife the election. She has a right to know what she has to elect. Election is choice, and she is entitled to know correctly what she is to choose between. The cases have gone so far, that after the wife has made her election, and has received benefits under the will, she has been allowed to retract and resort to her legal rights, when the estate has turned out differently from what it was believed and stated to be at the time of the election prematurely made.
    Her counsel have stated very properly, that in all probability she will adhere to the will; but that if her interest should require a different decision, and she should be obliged to give up the money received under the annuity, that the estate would be safe, and the executors would have in their own hands the means of reimbursement. It would appear to be peculiarly hard to compel the widow to make her election before she knows the true situation of this estate, and how to choose judiciously and beneficially; for the estate is greatly altered since the will was made. A large house and lot, of great value ($37,000,) which was specifically devised to her, has been sold by the testator before his death. This she loses, and considerable acquisitions of real estate have been made which do not pass by the will. The estate is entirely unsettled ; she cannot, therefore, make a judicious choice. Now nothing could be more opposed to the intention of the testator, than to stop her annuity, given her for support, because of the unsettled situation of the estate, when in fact that appears to have been the motive of granting the annuity. It appeared to me that the counsel for the defendants were satisfied with the force of this reason-mg', and were not very unwilling that *the annuity should be paid, provided that a fixed and reasonable rule should be given to them agreeably to their wishes as to the time of paying the annuity. That, therefore, becomes the duty of the court to determine. When an annuity is given simply, without any particular instructions, the rule of law is, that the annuity is payable at the end of the year. In this, however, the testator has declared, that the sum of 83,000 shall be paid her, “annually, or in any way she may wish,” for her support. He means then to leave it in her power to depart from the rule of law, and to make a lawr for herself, and to require the payments earlier if she wished. In the exercise of this discretion, she claims the payment of the whole annuity in advance. I, at one period, thought that the words, and apparent intention, would bear out even that construction ; and I am not now very sure that they would not. But I would rather adopt the more moderate construction, that she would be at liberty to call for the payment of the annuity at short periods; that is to say, at the beginning of each quarter. This will be adhering to the general principle, that annuities are payable when due, and also to the modification of the rule as made by the will of the testator, who meant it for her support.
    
      Decreed accordingly.
    
    March, 1826. This case came up again before the chancellor, on an application of the executors for an order to sell the real estate which the testator had purchased after executing his will, amounting in value to about 830,000, and which of course did not pass by the will, but descended to his heirs at law7. His heirs at law' were William Hall the defendant, a brother, and George, John and Sarah Cotchet now Robson, his nephews and niece, the children of a deceased sister, and Eliza May M’Cord, the wife of R. P. M’Cord, Esq. the daughter of a deceased* brother of the testator, besides the complainant his widow7. At this hearing these questions were made.
    First. That the widow was excluded expressly from any portion of the descended or undevised real estates by the twenty-seventh clause of the will, which was in these words, viz: “I desire that the provision made by this will for my wife, shall be and be taken in lieu and bar of all claim of dower, inheritance, or any other claim on her partand that she should elect to take under the will or against it.
    Secondly. That the descended real property, or after acquired estate was primarily liable for the payment of debts, in exoneration of the personal and other estate which had been devised. This question involved the general doctrine as to what funds were first liable to pay debts.
    Thirdly. That the new mansion house, for the erection of which the testator had entered into contracts before his death, was liable to be sold to indemnify the personal estate of the testator for the moneys paid out by the executors, in compliance with the contracts for the erection of the buildings, and that such contracts stood as liens on the house for its cost.
    Fourthly. That the parties were bound by the twenty-ninth clause to decide all questions arising between them by a reference to arbitrators, which the widow had refused, all the others consenting thereto.
    
      Fifthly. The executors having- confessed in their answers, that they were considerably indebted to the testator as surviving partners of the different mercantile houses to which they had belonged, it was contended that they should be ordered by the court to pay into court the amount which they had so acknowledged to be due, viz : §112,000; although the acknowledgment had been qualified by the statement that the affairs of the ^copartnership were unsettled as to other creditors, and would take some time to be arranged.
    Gregg and O’Nealr, for the widow.
    Harper and Preston, for the executors.
    M’Cord and DeSaussuke, for the heirs at law (whose claims were the same as those of the widow, except as to her exclusion from the descended real property in which they joined the executors. The reporter has not deemed it necessary to separate the arguments.)
    
      For the widow. As to the question of election (the first ground.) The widow is not excluded by the words of the will from the unde-vised real property. To make a case of election there must be a disposition of both estates. There must have been a disposition of the property which Mrs. Hall now claims under the statute of intestacy. The party must’ give full effect to the instrument under which he claims, and unless it be shown that Mrs. Hall has not given full effect to the will of her husband, the court must conclude that it is not a case of election. Is it necessary to give effect to this will that the widow should elect? In what manner? Can the counsel state? If it had been stated in the will, that the widow should be excluded from all share in the real property which might be bought after making the will, it might have made a case of election. But there is neither an express nor implied intention of the sort derivable from the will. But if there had been an implied intention of that sort apparent in the will, it would not have been sufficient The twenty-seventh clause does not say that she shall be excluded from the lands bought after making the will. There is an expression, that she shall not take dower or inheritance of the *lands devised. If there be any adjudged cases like the one in point, why have they not been produced ? The case of Thellusson v. Woodford, 1:5 Ves. 220, is not in point. The testator there had contracted for the lands. He had only an equitable title. It was not a case of descended property. The case of Cogdell v. Cogdell, 3 Desaus. Rep. 388, is a case in point for us. The widow in that case was admitted to the descended property. They admitted, however, that the point was decided by chancellor DeSausstjre alone.
    One class of cases similar to this is, where there is a defective execution of a will of real and personal estate, or the testator incompetent to dispose for any cause. In such cases the land being given to a stranger, and the personal estate to the heir at law, the court can not look into the will to put the heirs to an election. In Hearle v. Greenbank, 1 Yes. Sen. 306, Lord Hardwicke held the heir entitled to both the real and personal estate, there being no express condition attached to the gift of the personal. There the intention could but be implied. It was evident the testator did not intend the heir to have both; and yet the chancellor held the heir could not be put to his election.
    
      The case of Boughton v. Boughton, 2 Yes. Sen. 12, seems to be a leading case, differing somewhat from Hearle v. Greenbank. In Boughton v. Boughton, there was an express condition that no party claiming under the will should dispute it. But to make that case applicable the testator should have said, “I intend this provision in bar of any claim my wife may have of lands purchased after making this will.” Lords Eldon, Erskine, Kenyon, and Sir William Grant, have all expressed their doubts of the case of Boughton v. Boughton. They considered the distinction a nice one between Hearle v. Green-bank, and Boughton v. Boughton. The cases of Sheddon v. Goodrich, 8 Ves. *482, 595; Carey v. Askew, 1 Cox’s Ca. 244, follow the rule laid down in Hearle v. Greenbank. Snelgrove v. Snel-grove, 4 Desaus. Rep. 295, was a case decided in this State, acknowledging the rule in Hearle v. Greenbank.
    By saying that to constitute a case of election there must be an express condition, it is not meant to comprehend all cases; for there are cases of implied condition, as in the case of Hearle v. Greenbank. In the case before Lord Rosslyn, Pickering v. Stamford, 3 Ves. 492, he said, lie could not look into the will to see whether it was a case of election or not. And Lord Hardwicke seems to have acted upon the same principal in Hearle v. Greenbank. If in those cases therefore the property could not pass under the will, and for that reason the court could not look into the will, how can the court look into the will in this case ? There could be as little doubt of the intention in those cases as in any other; but the intention could not be got at in a legal manner, and therefore could not be regarded. Is there any evidence of disposition by Ainsley Hall of the property bought after executing the will ? The will says nothing about it. You cannot travel out of the will to get the intention ; and therefore it is to be presumed, that the testator had no intention as to any real property he might buy after making the will. Not one case can be found of election, where the property from which the party was to be excluded was not given to some other person. We challenge, the counsel on the other side to produce a single case. The court then is called upon to decide a new case, and to put the widow to her election will be to extend the principle beyond any case heretofore decided. In cases of informal devises it is not only necessary that the testator should endeavor to pass the particular estate, but the attempt to pass it must be expressly with a view to put *the heir to his election. Brodie v. Barry, 2 Ves. & Bearnes, 130. Carey v. Askew, I Cox’s Ca. 244. Implication will not answer. There must be an express condition, as in Boughton v. Boughton.
    We are aware of the copyhold cases, and at first did suppose they might be applicable; but upon looking at them it will be found that copyholds will pass under a will which would pass only personal estate. Besides the surrender necessary to qualify copyholds to pass may be made after making the will as well as before. And as to copyholds, the court can look into any will of copyholds, because it is not necessary to have witnesses; to be sure it is necessary to see if they were surrendered. But in ail such cases there must be an express condition, which does not exist here.
    There was another class of cases, where there was personal property not disposed of. In the case of Sympson v. Hulton, and Pickering- v. Stamford. The former case was stated in full by the master of the rolls, in arguing the case of Pickering v. Stamford, and may also he found in Roper’s Law of Husband and Wife, 25. The master of the rolls in the latter case changed his mind, and said he was lead into the erroneous opinion which he first entertained by considering the cases of wills similar to those of marriage settlements, which he after-wards acknowledged to be an error, and let in the widow. The distinction between wills and marriage settlements is good. Neither the heir at law nor the next of kin can be put to election without a disposition made of the property from which they are excluded by the testator. Pickering v. Stamford, 3 Yes. 332, 493. For whose benefit could this election have been made ? For the heirs at law ? That could not be, for one of them the testator excluded from his will. He gave nothing to Mrs. Robson, and he could not have intended to exclude his wife from the descended property to let her in. *Moreover, the heirs at law would take as such in different proportions from those made by the will. The testator never could have intended that. In Sympson v. Hutton, the exclusion of the widow and daughter Jane was in favor of the other daughter; yetas the object of the testator’s bounty failed, the undisposed residue was divided among the representatives of the three. A devise of things expressed could not put the party to an election of things not expressed. East v. Cook, 2 Ves. Sen. 33. In Cogdell v. Cogdell, the chancellor, who presides now, looked upon the claims of the widow for dower and under the statute as similar. A widow’s claim was always more favored than that of strangers. Judd v. Pratt, 13 Ves. 176.
    As to the second question, whether the undevised real property was liable for debts before the personal estate, they said the first case in this State on that point was Stuart v. Carson, 1 Desaus. Rep. 511. There the English rule was acknowledged, that the personal estate was the primary fund for the payment of debts notwithstanding all the alterations of our laws. So in Halyburtonu. Kershaw, 3 Desaus. Rep. 115, and in Dunlap v. Dunlap, 4 Desaus. Rep. 329, 325. It is unnecessary on this point to do more than cite the cases as to the general principle. The cases in Brown’s C. Cases were Ancaster v. Mayer. Samwell v. Wake. Davis v. Topp, vol. I. 144, 454, 524. Donne v. Lewis, 2 Bro. C. C. 263. Manning v. Spooner, 3. Ves. 117. Taitt v. Northwick, 4 Ves. 816. Harmood v. Oglander, 8 Ves. 124. Watson v. Buckwood, 9 Ves. 447. Inchiquin v. French, 1 Cox’s Rep. 34, in note. Tower v. Rous, 18 Ves. 138. Booth v. Blundell, 1 Meriv. 218. Githens v. Steel, 1 Swan. 28. The same rule prevails in New York. Lupton v. Lupton, 2 Johns. Cha. Rep. 628. Livingston v. Newkirk, 3 Johns. Cha. Rep. 319. Thompson v. Tappen, 5 Johns. Cha. Rep. 521. There were many reasons why the *English rule should still be adhered to in this country. Money in the hands of an executor could be applied more promptly. The property would not be sacrificed to obtain ready money. Lands were assets under our statute after the failure of the personal estate. Besides personal estate is of a more perishable nature, and can always be sold to greater advantag-e; and the policy of the country would rather protect that property which cannot go to aliens, than that which might be carried off by them; and the widow could not be compelled to elect between her dower and testamentary provision; and to sell the real property subject to her claim must greatly depreciate the price. Besides, the will here expressly charged the whole estate devised with the debes. This was a devise after the payment of debts. The testator first of all, orders his debts to be paid, ‘‘and that the division of my estate hereinafter directed shall not take place until all my debts and legacies be paid.” He orders that his individual debts be paid out of his individual estate and the proceeds of his plantations, and that the debts of the mercantile houses to which he belonged should be paid out of the funds of those houses, before recourse should.be had to any other part of his estate. Here were express directions, and the executors must pursue them. 2 Johns. Cha. Rep. 614. 1 Vern. 45. 1 Ves. Jun. 440. Before the court will order a sale of descended real property, an account must be rendered of the amount of the debts, and a deficiency of personal estate shown. 2 Johns. Cha. Rep. 62. 6 Johns. Cha. Rep. 389, 406. From the words of this will it might be questioned, whether the whole of the devised property real and personal was not liable before the real property undevised, the will making a charge on that devised. 2 Johns. Cha. Rep. 623. Executors have no control over descended real property. It is not assets inter main. The common law calls personal property alone “assets inter main.” Termes déla Ley. The executor can only come *against the real property unde-vised as a creditor. But how could they show themselves creditors before an account was finally taken, and until then no sale of real property could be ordered. It will be necessary here to inquire into the capacity of the firms to pay their debts, before the testator’s individual estate can be sold; for until then the creditors in no case can become creditors upon the real property.
    As to the third ground. The debts contracted for building the new mansion house are of course to be paid out of the personal estate. No recovery can be had on these contracts but in assumpsit. The personal fund therefore can alone be made to pay these contracts. Haly-burton v. Kershaw, 3 Desaus. Rep. 106. Pringle v. M’Pherson, 3 Desaus. Rep. 106. Cumberland v. Addington, 3 Johns. Cha. Rep. 234, 317. 1 Vern. 36. 6 Bro. P. C. 520. Moers v. White, 6 Johns. Cha. Rep. 388. Langford v. Pitt, 2 P. Wins. 632. Whitaker v. Whitaker, 4 Bro. C. C. 31. Broome v. Monk, 10 Ves. 611.
    As to the fourth ground, it was said that the will was not peremptory as to submitting all disputes to arbitrators, it was only recom-mendatory.
    As to the last point, it was said, that here the executors had applied to sell the real property, and yet acknowledge themselves indebted to the testator to an enormous amount. They should long ago have paid up their debt. Indeed such debts were assets in their hands. They must be considered as having received so much money for the testator; and having done so they yet state that the testator owes debts, when this fund alone, besides the crops of his plantations, &c., might long ago have paid them all. It was now three years since the death of the testator, and yet the executors had not settled their own debts due to the estate. The court in such cases will order the executor to Fay ^e money *into court immediately. 2 Cox’s Ca. 377. 8 Yes. 466. 11 Ves. 87. 13 Ves. 624. 2 Meriv. Rep. 491. Toll, on Exec. 480. 11 Mass. Rep. 256. 6 Mass. Rep. 149. It was sufficient cause for the appointment of a receiver. Winthrop v. Bass, 12 Mass. Rep. 199. Middleton v. Dodswell, 13 Ves. 268.
    
      In reply. The question whether the testator could have made a disposition of this property by the will is no question at all. The only real question is whether there is a condition annexed to the portion given to the wife. During the whole argument the counsel have never once attempted to give any meaning to the 27th clause — contrary to the rule that words are not to be rejected as surplusage where they can have a meaning. And the true question is whether these words are so utterly unmeaning that they may be stricken out. What is the meaning of the word inheritance'? We can see no change in its meaning in this country except as modified by the statute of distributions. It is the taking property by descent. Jt is the legal as well as the vulgar sense. The only doubt in this country is, whether it does not comprehend personal as well as real property. It certainly is the vulgar sense that it does. But that it did mean real property obtained under the statute of distributions no one could doubt. The word is somewhat more extensive in this country than in England. That is all. “The law of inheritance,” says Judge Brevard in his Digest, Vol. 1. p. 425, in note, “in this State; in cases of intestacy, is established by this act (1791) and other statutes.” The general principles of succession or inheritance, the same accurate judge observes, as to real and personal property are the same. The act of 1791, abolishing the laws of primogeniture, establishes new heirs, and of course the old doctrine of inheritance must be applied to ^K’se new heirs; and if *the act creates an inheritance as to one. heir it creates it also as to another, and as to all circumstances to which the act applies, as well between husband and wife, parent and child, as between collaterals. The law of desce?its may properly be said to have been abolished. That was a common law right — this a statutory right. In this State a father maybe said to inherit from his son, a wife from her husband, as well as a child from its parent.
    That it is prospective cannot be doubted; for no one can take as heir until the death of the person whose estate is distributed by the statute. It is contended, on the other side, that it should be restricted to lands owned at the time of executing the will. But all such lands are devised in the will. And if there had been such lands, it would have been a refinement to make a difference between such lands and lands bought after making the will. The will plainly means inheritance at the death of the testator. And if the construction contended for was good, then the lands bought before and after making the will, if not devised, would be distributable under the statute in a different way. The residuary clause would hardly have been inserted if there was an intention to lease a part of the real estate undevised. The residuary clause was inserted to meet legacies that might lapse. Therefore the testator, who was an intelligent man, knew there tvas nothing left to exclude the wife from. It cannot apply'then to any property he had at the making of the will : for there was nothing then to which it possibly could apply. It is said that the will could only be considered as made in relation to property lie then had. But this is presuming against the express intention of the testator. Besides, the observation is not just. It is frequently the case that a particular portion is given to the wife, to constitute* her whole share, in every way, of the r^ono husband’s estate. The condition attached to the widow’s claim L is intended to save the necessity of making a new will for every piece of real property purchased. The will is the words and intention of the testator from the time of making the will to the time of the testator’s death. If a party sells property he is supposed to revoke his will quoad the thing sold. Does that revoke the condition attached to Mrs. Hall’s benefit under the will? Do the words operate before the death of the testator ? If he intended to alter his will he would have revoked it. The rules for construing wills were to be found in 1 Roberts on Wills, 562.
    It was suggested yesterday that the word inheritance might have been intended to mean dower, and that inheritance must have meant the estate which the wife had when she married her husband. But the testator meant his own estate. No question was made as to her estate. Besides, Mrs. Hall had no such estate. The testator only bars her of any claim on his estate. The expression of the testator is as direct as if he had said, in bar of any distributive share of lands I may hereafter acquire. If the intention be thus clear, what rule of Jaw would prevent it from having effect? They have referred us to Pickering v. Stamford, which is the leading case on the subject. But in that case the wife was barred in favor of a particular person, who, not being able to take, it was held, that should not then prevent the widow from taking. And it decides, in effect, that if the particular devisee could have taken, she would have been excluded. This was the view of the master of the rolls, as explained in Waring v. Ward, 5 Yes. 670. It was upon the ground of intention. The intention was only to favor the charity, and, that object failing, the condition wras held not to apply to the *circumstances as changed. The case had not been approved of. The master of the rolls appears confused throughout. Pie appears doubtful, and thought that Simpson v. Hutton governed him. Before the court examine that case, they can not but observe, that in that case it was said the widow was not put to her election. But that differs from a legacy with an express condition, which one cannot take but with the cond ition attached. Pickering v. Stamford came up four times. This question did not arise until its second appearance in court, which is reported in 2 Yes. Jun. 581, and the question then was, whether she had the privilege of election, after twenty years’ delay, and under the words of the. will. In Waring v. Ward, the master of the rolls says expressly that he first decided that case on the ground that the wife could not take at all — that she could not elect. It was conceded in the argument of Pickering v. Stamford, that the case could only be decided on the ground of the accidental failure of the object for whom the exclusion was intended. The liberty of choosing seems to have been the question. The case of Simpson v. Hutton was where all the parties were excluded in favor of one child who died, and the wife, who was intended to have the estate after the death of the daughter, did not get it on account of the failure to execute some necessary power. So that the bar of the widow did not apply. But if the lands had descended to the favorite daughter, could the court have held that the widow could have come in for distribution and retain her testamentary provision? Pickering v. Stamford is considered as a case of a lapsed legacy. But it is admitted by all the cases, that where the testator by his own act revokes the legacy, it will not alter the condition. The dictum of the chancellor, that you cannot look into the will at all, if it means to say that you must shut y°ur °yes! and l°°k to see if there is an express condition *in the will, was foolish and wrong, and every lawyer in England knew better. But he did not mean that; but when the testator’s views have accidentally been defeated. Can you not read the will against any one claiming under the statute of distributions or by descent ? If it had been on condition that it should be in bar of her claiming any thing against W. Hall, George Cotchet, and E. M. M’Cord, under the statute, would it be said that the court could not look into the will ? It is true the widow could not be absolutely excluded under the statute. She could only be put to her election, and of course, of property, either not contained in the will, or which the testator could not devise. The testator may annex any condition. To talk of condition in any other sense is idle. There is no difficulty of disposing of this property undevised. If she were out of the way the law would provide for that. Vatchel v. Breton, 5 Bro. Par. Rep. 141, was of good authority, and was expressly in point. The two children with “ten shillings and no more” were excluded. It is incorrectly cited in Snelgrove v. Snelgrove. In the report of the case in Brown, no reference is made to the legitimacy of the children. It is put upon the ground of intention alone. By expressly excluding two of the children, the implication was absolutely necessary that the other two should take. So in Pickering v. Stamford, it is suggested, that if all the heirs at law are excluded, what is to be done ? We can only say, let the next of kin come in ; for those that stood nearest to the testator are to be considered as dead. We cannot see the difficulty which the. master of the rolls felt in that case. The dictum of Lord Rosslyn, that there must be an effective disposition of the property, is as erroneous as the last referred to; as the very reason of election is the want of power in the testator to dispose. It is said, the heir can not Put t0 an eIechon unless the will is properly* executed, and that he cannot be compelled to an election of property to which he only has an inchoate right. These reasons contradict each other. As to the distinction said to exist between Hearle v. Green-bank and Boughton v. Boughton, the counsel have mistaken the doubts of the subsequent chancellors. The doubt is, whether it was necessary to have any express condition attached to the devise, where the intention can be ascertained from the whole will. The will cannot be read only in such cases where the testator was totally incompetent to make any will. If the party takes an estate, the will may be looked into to see if the party takes at all, or otherwise he could not take at all, there being no will seen; if the gift is looked to, the condition attached to it must be seen. So what becomes of Lord Rosslyn’s dictum, that you cannot look into the will? It is perfect nonsense. Welby v. Welby,2 Ves. & Beames, 187, was acase of implied condition.
    As to the words “or any other claim,” they cited Glover?)- Bates, 1 Atk. 439. Read v. Snell, 2 Atk. 642. Da villa v. Davilla, 2 Vern. 725. Judd v. Pratt, 13 Ves. 173.
    
      All the copyhold cases are most directly in point, notwithstanding what has been said. That is, a copyhold cannot pass by the will unless surrendered to the use of the will, and the testator having expressed an intention to join the copyhold to another, has been held enough to put the heir to his election. Rumbold v. Rumbold, 3 Yes. 65. Frank v. Standish, 1 Bro. C. C. 508, note, was a case of copyholds brought after making the will, and the coheiresses were entitled to a provision in the will, in bar of all other claims, and they were held to the election of such lands. M’Namara v. Jones, 1 Bro. C. C. 481, was a case of implied condition. Brodie v. Barry, 2 Yes. and Beames, 36, 127, was a case of a Scotch heir. The Scotch heir was put to election, *though the will did not bind his property in Scotland. And Thellusson v. Woodford is also in point. All these were cases of wills read to pul the heir to election. On the general principle that the intention is to govern ; it is enough that the widow should take her portion, with the condition annexed; and authority is to be produced on the other side, and it is not for us to shew that the condition was inoperative. It is argued that the testator must declare how he means the property to go, to raise a case of election. But the law presumes he meant it for the benefit of those who can take, she being out of the way. In Davilla v. Davilla, 2 Vern. 725, the wife was excluded, and the court said the testator might forbear making a will, as he might know how his property would descend. So in Glover v. Bates, 1 Atk. 439, the wife was excluded from her distributive share, although there was no will. In Read v. Snell, 2 Atk. 642, a provision in lieu of the wife’s customary share was held to put her to an election. 2 P. Wms. 526. As to the distinction between marriage settlements and wills, it only applies to contracts before marriage, and not to deeds or wills during the marriage, in lieu of the wife’s claim. As she could not contract, she may elect. 1 Roper on Husband and Wife, 452. If made before marriage, it is an absolute bar; if after, she may elect. 1 Roper on Husband and Wife, 554. It is admitted here that the wife is excluded from dower. Her distributive share is in lieu of dower. It is, in fact, a statutory jointure. And if she is barred of the one, why may she not be barred of the other? The case of Warde v. Warde, Amb. 299, is a case exactly in point, as much so asa case can be. That was a case of after acquired land, of which the widow was put to her election, though the testator could not have disposed of it by his will, *when he executed it; nor did he express any intention to dispose of it in favor of another. It is also said that the party cannot be put to his election unless he has some inchoate right before. It is a strange supposition, entirely unfounded; and arises from confounding cases of election with cases upon condition. The cases of election arc those that depend on an implied condition, and not those expressed. This is explained in a note to Judd v. Pratt, 13 Ves. 173. Stratton v. Best, 1 Ves. Jun. 523. Cavan v. Pulteney, 3 Ves. 384. Bailey a. Wright, 18 Ves. 49. Wilson v. Greenwood, 1 Swanst. 433, note. 2 Madd. 42.
    The cases properly of election are attended with a compensation. But the cases of express condition have no compensation. It is sufficient that the party must take with the express condition. Newman v. Newman, 1 Bro. C. C. 186, is a strong case to explain the force of an express condition. Whistler v. Webster, 2 Yes. Jun. 367. Did the testator intend his wife to be excluded from this after purchased estate ? If that was his meaning-, she cannot take. The clause says, “ the provision shall be taken in lieu and bar,” &c. “ or any other claim;” of course at his death. We ask again, what other meaning can be attached to the word inheritance, than property obtained under the statute of distributions? This will was written by one of the ablest lawyers in the State. He could not confound dower and inheritance.
    As to the liability of the real estate descended to pay debts in exoneration of the personal. There is no such character in this country as the English heir at law. We will cite some cases to shew the reasons of the English rule, and will endeavor to shew that they are inapplicable to this country. The personal estate is rendered liable to favor ^e^r) and therefore express* words are required to bind the heir. But we have no feudal heir who is thus to be favored. A devise of the freehold to pav debts does not exempt the personal estate. Is it possible that the rule can be of force in this State ? In England the real estate is not liable at all to pay personal debts, and is it possible that a rule founded on such reasons should be obligatory in this country, where the real and personal may be sold under execution to pay debts? A devise to sell or mortgage real property does not exempt the personal, though given to his daughter. 3 P. Wms, 134. This would not be law in this country. In Inchiquin v. French, Amb. 33, it is said there is no difference between charging a real estate, and devising one to be sold. In 1 Bro. C. C. 144, the testator charged the real estate, which was held not to exonerate the personal. That is not law in this State. So of the case of Brummel v. Prothero, 2 Ves. Sen. 112. Taitt v. Lord Northwick, 4 Ves. 817. It is said that in nine cases out of ten, in England, the intention of the testator is violated. Why violated there ? To favor the heir under a system not applicable to this country. Then why violate the intention in this country? It is said the act only renders the real estate liable, as lands are to speci-alities in England. In England the land is liable primarily to speci-alities. To be sure the heir can make the executor refund, or relieve him of the responsibility; but that is upon reasons not applicable to this country. If the personal fund is bequeathed, his rights are as good in this country as the rights of the heir, and although, in such a case, the personal estate would be liable in England, yet that is not law in this State. In England, when a testator gives his personal, he knows that it must be applied first to pay debts, and therefore he is to be considered as only giving the residue ; but in this State the testator knows that the lands may be sold to pay his debts. In Waise v. Whitfield, 8 Vin. Ab. *277, a residuary clause of personal property was held a specific legacy. 1 Roper on Legacies, 277.
    The cases cited from 3 Johns. Cha. Rep. seem rather to support the positions we have laid down ; so of the case of Livingston v. Livingston.
    July, 1826. DeSaussure, Chancellor. The first point in this case is, whether Mrs. Hall, the widow is entitled, under the statute, to a distributive share of the real estate acquired after making the will? She will be so of course if she is not barred by the twenty-seventh clause of the will, which is in these words : “ The provision made for 
      my wife shall be, and be taken, in lieu and bar of all claims of dower, inheritance, or any other claim on her part.”
    Where a man is disposing of his estate by his last will, it is presumable he is making a disposition of what he actually owns, and not of what he may by possibility acquire. He provides according to the actual state of his property, and not according to imaginary hopes or fears. There is perhaps hardly any man whose devises and bequests would not be greatly varied by the anticipation of great acquisitions or great diminutions of his estate. The very strong presumption then is, that the testator believing that the provision made for his widow by his will out of the estate he then held, was an adequate one, desired that she should not have any more of his then estate. The rights of the wife, and the duties of the husband, were in his mind performed by the provision made in the then state of affairs. If his fortune had been suddenly increased ten or a hundred fold — as often happens in the wonderful mutations of human affairs — there is no reason to believe that he would have thought the provision he made an adequate one. This is porportionably true as to any material change. Now it is always a question of intention, whether, and how far a husband means to bar his wife’s legal rights by a special *provision. It must be apparent that he meant to put her to an election between her legal rights and her rights under his will, before the courts will put her to an election. In the case we are considering, the testator purchased a large lot and made contracts for building a large house at a great expense, after he had made his last will, which is the subject of controversy. Now is it probable that in framing a clause in his will, by which he makes a liberal provision for her, and excludes her from dower and inheritance, he liad in view any other property than that which he then possessed ? I think not. Besides, in construing wills, the rule is, that you must look to the state of things at the time of making it. The decided cases are numerous. There are some exceptions.
    The cases of election are, where the wife claims something under the will, and something which will disappoint the will. She is not permitted to take both. She must elect. But can that claim be said to disappoint the will when the claim is made on a subsequently acquired property, which could not have been in the contemplation of the testator when framing his will, and which does not pass by the will. Mad-doc.k, in his treatise on the principles of equity, examines the cases and states their results. He cites the early and leading cases on the subject of election. Noy v. Mordant, ‘2 Vern. 581. Clarke v. Guise, 2 Yes. Sen. 617. Morris v. Burroughs, 2 Atk. 629. Vincent v. Vincent, 1 Ves. Sen. 200. Frank v. Standish, 1 Bro. C. C. 588, in note; and many other cases which he enumerates; — and he then adds, the result of these appears to be, “ That a person shall not claim an interest under an instrument, whether a deed or will, without giving full effect to that instrument as far as he can.” See 2 Madd. Cha. pages 46 and 48, &c. He adds, “An election can only take place where a person has a decided interest before, and something is left him by the will. Where *there is no certain benefit before, there can be no election.” 2 Madd. 52. Crosbie v. Murray, 1 Ves. Jun. 561. Even as to dower, the claim under the will and of dower must be repugnant. If there be no inconsistency in the two claims, if both may stand together, the wife is entitled. 2 Madd. Cha. 57.
    In the case before us the wife is barred of dower, because she had an inchoate right of dower in the land acquired after making the will, and that expressly makes a provision for her in bar of dower. But she had no inchoate right as distributee, for the husband might dispose of the land from her. He did not dispose of it, and her right as distribu-tee arose on his death. Her claim as distributee thus arising after his death cannot be said to disappoint the will, which did not and could not dispose of this after acquired real estate, and could never have been in the contemplation of the testator. It would be strange to say, that the claim as distributee disappointed the will of the testator in relation to a property which he could not have even had in contemplation, and which does not pass under the will.
    Upon the whole I am of opinion, that Mrs. Hall is entitled to a distributive share of the after acquired real estate which did not pass by the will ; which share under our statute amounts to one moiety, as there were no children.
    We come now to consider the last question, out of what funds the debts of the estate are to be paid ? The will of the testator is in the following words: “I desire that all my individual debts be paid out of my individual estate and the proceeds of my plantations.” “It is my will and desire that all debts due by A. Hall & Co., and Halls, Kirkpatrick & Co., be paid out of the funds of said concerns before recourse be had to any other part of my estate.” These are very explicit declarations of the testator’s intentions on this subject. Now it is not a ^disputable point that the will of the testator must prevail where it is distinct and intelligible, [t was however argued, that the real estate acquired after making the will, not passing under the will, is the proper fund for the payment of the testator’s debts. And many cases have been cited to establish this doctrine; too many indeed for minute detail. If this doctrine should be considered applicable in a case where the testator has expressed his intentions, still it is to be remarked that there is a distinct line of demarcation between his private and his copartnership debts, in which his will and the general rule of law concide; to wit, that his private debts must be paid out of his private estate, and his copartnership debts out of his copartnership funds. This course must therefore be pursued.
    The only question then which remains is, what part of the private estate of the testator is primarily liable to pay his private debts ? If the property acquired after making the will had been personal, I should not have much doubt that it was primarily liable in order to exempt the devised and bequeathed estates ; but it is real estate, and that raises the difficulty. The decided cases on this subject are various, complicated, and sometimes I fear discordant; arising doubtless from the very great variety of the combinations which occur in human affairs.
    I feel the difficulty in the application of the numerous decided cases to the one we are considering : perhaps not the less from the irnumber and the ingenuity of their application by the counsel in this well argued cause. There are some things however which may be laid down as certain, and will aid us in forming a correct judgment in this cause. The first is, that the personal estate is primarily applicable to the payment of the debts of the testator; next, that the statute abolishing the rights of primogeniture has not altered the law in that respect. There *has been some controversy on this subject, and perhaps some discordance of opinion among some, of the judges ; but there has not been any clear, distinct decision, establishing a change in the rule, as to the application of the assets to the payment of debts.
    By the English decisions, which have not been contradicted by our own, the following seems to be the rule, as laid down by Lord Chancellor Tiiurlow, and concurred in and supported by Lord Chancellor Eldon. In Harmood v. Oglander, 8 Yes. 106, 124, 5, Lord Eldon says, “My present opinion is that the descended estates are not first liable upon this ground ; that, as I understand Lord Thurlow’s determination and the law ever since, it is decided, that in the administration of assets ordinarily, the first fund applicable is the personal estate not specifically bequeathed ; then land devised for the payment of de bts (not merely charged, but devised or ordered to be sold ;) then descended estates; then the lands charged (by the will) with payment of debts.”
    This is powerful authority. Now it is clear that the personal estate bequeathed by Mr. Hall’s will to be divided between his wife and other legatees, except a few slaves by name given to his wife, and those obtained on his marriage, is not specifically bequeathed in any sense of that term ; therefore, according to this rule, it is to be applied. Besides, the devises and bequests of the testator’s real and personal estate, to be divided between his wife and others (under the 6th, 7th, 8th, and 9th clauses) is expressly subject, and postponed to the payment of debts. Again, in the case of Milnes v. Slater, 8 Ves. 295, 303, 304, Lord Eldon recognises the doctrine above stated; and adds that the rule is, where the will creates a particular fund for payment of debts, that shall be first applied in exoneration of descended estates, whether acquired after the date of the will or not. I think then, that as the testator did provide for the payment* of his debts and legacies out of the whole estate he possessed at the time of making his will (and he could speak and refer to no other,) that the after acquired, descendable and distributable estate is exonerated from the pay'ment of his debts and legacies, which must be first paid out of the estate subjected by the will to his debts and legacies.
    It is charged in the bill, admitted by the answer, and supported by the exhibits, that considerable debts are due from the executors themselves to the estate of Mr. Hall, which of course will pass under the residuary clause of the will. These should be collected as soon as possible. Indeed the decided cases say that those debts are so much cash in the hands of the executors, and the court will often order the executors to pay the debts they owe into the hands of the proper officer of the court for the security of the parties interested. The cases were cited in the argument. It must also be added that they have no right to employ that money, or any other part of the estate of their testator, in their private transactions or speculations. Should losses occur by their doing so, they would be bound to sustain those losses.
    The application of the bond of General Hampton to Mr. A. Hall, to the payment of the copartnership debt to Mr. Kirkpatrick, was a plain violation of the will of Mr. A. Hall, who forbade the application of his private estate to copartnership debts. That must be corrected. .
    
      Should Mrs. Hall, the widow, after perceiving what her interests are in the estate, and after seeing by the settlement of the affairs of the estate what her best interests require, be induced to abandon her rights under the will, and elect to take her dower and her distributive share of what was undisposed of by the will, she will be at liberty to do so. And she is not bound to *make that election until the affairs of the estate are so wound up, as to enable her to have a clear perception of what her interests require her to do. An election may be kept open in some cases for an indefinite and great length of time, until they who manage the estate give the widow such a complete insight into the affairs of the estate as to enable her to judge understandingly of her situation. 2 Madd. Cha. 55. Arab. 533. 1 Bro. C. C. 232.
    It is therefore ordered and decreed, that Mrs. Sarah C. Hall is barred of dower in the real estate acquired after the making the will of the testator, as well as in the real estate held at the time of its execution by virtue of the 27th clause of the will, unless she chooses to. abandon her rights under the will, and elects to resort to her dower.
    That Mrs. Sarah C. Hall is entitled to a distributive share of the after acquired real estate which does not pass under the will of the testator, without being put to an election; but may take that distributive share as well as her rights under the will. That the fund for the payment of the private debts of Mr. Ainsley Hall is the estate devised and bequeathed to be divided among his widow and the other devisees named in his last will; and primarily the personal estate so bequeathed, except the slaves specifically bequeathed to his wife in the fourth clause, which are exempted. And that the fund for payment of Mr. I-lall’s proportion of the copartnership debts is his share of the copartnership funds as prescribed by his will.
    That the debts due by the executors to Mr. Hall’s estate in his private capacity, and to him in his copartnership capacity, are to be considered as cash funds in their hands, to pay his debts ; and a reference is ordered to ascertain what is due by them, as well as all other matters of account.
    *From this decree appeals were taken up by the executors and heirs at law. All the points were again argued at length before the court of appeals.
    FIarter and Preston for the executors.
    M’Cord for the heirs at lawn
    Gregg and O’Neall for the widow.
   Curia, per

Colcock, J.

It may seem to be a work of supererogation to add anything to the elaborate decree of the learned chancellor in this case. But in the course of the argument some new views of the legal doctrine on which the case depends may have been presented to the view of the court. It is said the cases arising under the doctrine of election are susceptible of being divided into two classes; first, those of election proper, where something is given by the will to one who is entitled to some other thing disposed of by the said will to another, in which case the devisee is put to choose whether he will take that which is given, or that to which he has a claim ; and secondly, those cases in which there is an express condition annexed to a devise, with which the devisee must comply or not take the prop,erty ; in which case he is to elect whether he will comply with the condition or give up tlie property; but in wliich, if he does not comply with the condition, he violates none of the provisions of the will as to any other person than himself. And it is suggested that the case before us has been considered in reference to the first class of cases, when in fact it is embraced in the latter ; and that the complainant, although not put to elect between two things given in the will, is restrained from taking any of the subsequently acquired property by the operation of a condition which is imposed by the will on her. *The distinction is a very clear one, and is certainly applicable to the case, though 1 think the decree in substance does embrace both views of the doctrine. But as we are satisfied that the case is not a case of election properly so called, but the case of a condition annexed to a gift, we will take a view of it as regulated by the doctrine and cases which are applicable to that state of things.

It is clear that the widow is not put to choose between two things given in the same will, and that so far as the rule that one cannot claim under a will and defeat at the same time any part of that will, the case is clear of difficulty, for the reasons given in the decree. In determining whether.the restriction contained in the will does prevent her from taking a distributive share of the after acquired property, we are to look to the circumstances of the parties, and to the will, and to the whole will, and to any circumstances arising out of the .rnmediate provisions of the whole will. The intention of the testator :s to be carried into effect, unless he has used technical terms, which must receive their technical meaning, and which restrain the operation of such intention. When men sit down to make their wills, their purpose is to dispose of that which they possess, and it is very rare that we find a man who undertakes to dispose of that wffiich he has not, and that which he consequently may never have, except in some few cases where an estate is expected to descend, and then we find persons making, or attempting a disposition of such expectances. But I think, speaking generally, that it would be considered even by a man in health, and in the prime of life, as a most unnecessary and superfluous act to make any provision for that which he may hereafter acquire. Now when we advert to the circumstances of these parties, we find the testator a man of great affluence, manifesting a proper affection for his *wife, in a generous provision for her future welfare. Does it comport with such a spirit to make a provision by which she should be excluded from any after acquisitions, even if we could suppose that he had it in contemplation to acquire this property, a supposition which is at war with all the circumstances of die case? For when he made this will, he was in possession of a handsome house, which he gave by that will to his wife, but which he afterwards sold, as is stated by the defendants in their answer; so that ;t was this after act which caused him to acquire the property which ;s now the subject of dispute, and therefore it is impossible, that when he made the will he could have looked forward to the acquisition of a thing, which at that time he did not want, and which, to say the least of it, was a property which he never wrnuld have bought for profit, he being a merchant, and a man of great judgment and prudence. These considerations irresistably lead me to conclude, that the testator did not intend to exclude his widow from a participation in any after acquired property. But it is said that whatever may have been his intention, he lias, by the use of technical expression, effected that. The words are, “the provision made for my wife shall he in lieu and bar of all claim or dower, inheritance, or any other claim on her part.” He then concludes his will, and may have died the day after, and the possibility of such an event is in the contemplation of all men of reflection when they make wills. If he had died the next day, or the next month, to what would this restriction have applied? It could have applied to nothing else but the property contained in the will. It follows, therefore, that it was meant to apply to that, and to that only, and there is no ground to stand on except as to the technical meaning of the word inheritance, and it certainly cannot be complained of, that lie who stands upon the strict law should be judged by the strict law. *Now who ever heard of a woman inheriting from her husband? Is this technical language? “Inheritance,” saithCoKE, “cometh from the ancestor; without blood none can inherit, and therefore it is, that he who hath the whole, or entire blood, shall have one inheritance before him who hath but part of the blood of his ancestor.” 3d Reports, 41. it may be said, and has been said, that the testator thought it a proper word to exclude her; but his intention, it has been shewn, was not to exclude her at all. It is much more probable that he thought that dower and inheritance were convertible terms, and that he used both from abundant caution in relation to the property he then possessed; or he may have supposed that it applied to the property which came to him by his wife, and if there was any land so acquired, it was a peculiarly appropriate expression as to that. Or he may have been lead into the mistake (as others have been) by the use of those words in the act of 1795, prescribing the mode of conveying lands belonging to the wife. A case has come before us in which the persons, not knowing the distinction between dower and inheritance, thought proper to use both in the deed. But so far as the intention is to govern, whatever else he may have intended, he did not intend to apply the word to after acquired property; and if in its technical operation it cannot be thus applied, the claim must prevail; for it is laid down that in giving construction to such restrictions the meaning must be clear and express. The rights of the parties claiming are not to be excluded by implication, and this will be found to be the rule in all the cases referred to by the defendants themselves, though in some of them it may appear that the rule has been lost sight of. Indeed I say with the master of 'he rolls in the case of Brodie v. Barry, 2 Ves. & Beames, 129, “ if it were now necessary to discuss the principles upon to reconcile to those principles, or to each other, some of the decisions which have taken place on the subject.” The overwhelming and all controlling desire to protect the rights of the heir on some occasions, and to administer high equity on others, has certainly carried the English judges to great lengths on this as well as on other subjects. But we have no such purpose to effect here. Our principle is an equal distribution where the owner has not disposed of his propertjr; and his will, be it what it may, where he has disposed of his property. In the case of Blake v. Brumbery, 4 Bro. C. C. 23, it is said “no man is to be deprived of his property by guessing or conjecture ; ” and in all the cases of dower this is carried to great length. In Hearie v. Green-bank, the intention by implication cannot be doubted, but the chancellor would not put the infant to her election. And when we turn from those cases in which the court have refused to put the parties to their election, to those in which they have been compelled to elect, on the ground of a condition annexed to the gift, we shall perceive very clearly how this doctrine is to be understood. As in Boughton v. Boughton, 2 Ves. Sen. 12, the condition annexed is, “that if any child or children of mine, or any in their right, or any who may receive benefit by my will shall any way litigate, dispute, or controvert the whole or any part of my will or codocil, or in anywise oppose the disposition which is made in all respects, shall forfeit his or their share; and the same is given to the residuary legatees.” Here there was little doubt, for it is not disputed but that a testator in disposing of his estate may annex whatever lawful conditions he pleases to his bequests. The condition was express, and therefore the parties were held to comply with it. And such is the character of the cases of express condition, or condition so strongly implied (as it is stated in some cases) as to amount to express *coridition. I think I do not venture too much when I say, that there is but one case among the great number referred to, which is in point as to the important fact, and on that I shallcomment at large hereafter, viz : Ward v. Ward, Amb. 299. I have read, and as far as time would allow, have examined the cases, and there are none of after acquired property, except the one above referred to. They are all cases in which the disputes have arisen as to the property possessed by the testator at the time of his death, in which he has been disappointed in his disposition of it by some of those rules which have been considered as applicable to the doctrine of election, as to which however it appears that the judges have been constantly differing. Now in all such cases, although there is some analogy, there is this great difference, that the point on which the case before us turns, was completely settled in those; to wit, the intention of the testator; for where a man makes a will and disposes of his whole estate, though that will be not formal, and consequently ineffectual, yet there is no difficulty in arriving at his intention. It is obvious, and always referred to as the guide of the court; whereas in the case at bar the very question is, what did the testator intend? The case of Ward v. Ward is as follows : Thomas Ward made his will, and, reciting that he was seized of copyhold estate — though in fact he was not — devised all his real estate, &c. He afterwards purchased a copyhold estate, and surrendered it to such uses as he by his last will and testament should appoint, and died without making any other will. Lord Hard-wicke held that the copyhold did not pass by the will, first, because the surrender was to future appointments, and secondly, because the words of the will did not extend to an after purchased copyhold, but only to such as he was seized of at the time of making it. The testator, after devising it to his wife, declares in his will that what he had before* given her should be in full of all dower and right of dower or thirds which she may have or claim in or out of his L real estate. The copyhold which he had bought was, by the custom of the manor, fiable to the widow’s free bench. Held, that the devise is a satisfaction of the free bench, which is a customary right nomine dotis, and so declared by Bracton, and is instead of dower. This is the whole case as it is reported, and it will not be difficult to show that it cannot be supported even on the grounds assumed in the case. That if it could, it is no more than another case in which a widow is considered as barred of all claim to dower in her husband’s lands, when a legacy is given to her in his will upon that express condition. But lastly, the grounds assumed are wholly incorrect in point of law. The first point for determination was, whether the copyhold could pass bv the will. The lord chancellor says it cannot, because the words of the will do not extend to an after purchased copyhold. For the same reason the testator could not have intended to bar his wife of her free bench, for the will did not extend to that, unless it be embraced in the term “dower.” Then it is, or it is not embraced in that term. If it is, it has nothing to do with the case before us; if it is not, surely the chancellor’s calling it dow'er cannot make it such, although it was a convenient mode of disposing-of the case. And if we could call the right of the wife to a distributive share of her husband’s after acquired property, dower, we might dispose of the case in the same short way. But let us see whether his legal position, that the claim of free bench is dower, be correct. Free bench (francus bancus, i. e. sedes libera) is that estate in copyhold lands which the wife hath, on the death of her husband, for her dower, according to the custom of the manor. But it is said the wife ought to be espoused a virgin, and is to hold the lands only so long as she lives sole and *cont'nent- Fitzh. 102. Of this free bench, several manors have several customs, and Fitzherbert calls it a custom whereby in several cities the wife shall have the whole of the lands of her husband for her dower. Fitz. N. B. 150. In the manors of East and West Enbourne, in the county of Berks, and in the manor of Tone in Devonshire, and other parts in the West of England, there is a custom that when a copyhold tenant dies, his widow shall have her free bench in all his customary lands east.a et sola fuerit, but if she commits in-continency she forfeits her estates, though she may redeem them again by the ridiculous penance of riding on the black ram. Now it requires but little comment to show the distinction between such an estate or interest in the husband’s lands, and dower. In some places it extended to all of the lands. In all, it was held only while she remained sole and continent, and she must have been a virgin when espoused. Now there are none of these constituents in dower. But what is conclusive in my mind as to the authority of the case is, that the chancellor puts it on the footing of satisfaction. To me it appears somewhat singular that one thing can be said to have been given in satisfaction of another which was not possessed, unless it was so expressed, that a direct reference is made to the thing which might hereafter come into possession. So that in no point of view can the case be considered as authority, except to show that where property is given in bar of dower the widow is barred of dower in after acquired property — a doctrine however to which I shall never assent. I entertain strong doubts if Lord Hardwicke ever heard of the case of Ward v. Ward, and I think it a case which supports the opinion of Lord Eldon that Ambler is no authority. Since the argument, we have been referred to a case which seems to be considered in point, and therefore shall be examined. It is the case of Druce v. *Dennison, 6 Ves. 385. As a preliminary remark I observe the case had no relation to after acquired property. The subject in dispute was property given by the will and afterwards revoked by a codicil, so that as to that the testator died intestate. The claim of the widow was resisted on the ground of a marriage settlement, in which the word thirds, as well as dower, was used. Now, in the first place, this was not the construction of a will. It was formerly a conceded position that jointure is in bar of all subsequent rights of a wife. It is a purchase by the husband of all her property, and that is distinction enough to show the inapplicability of the case. At first the lord chancellor said this settlement was a bar as to the undevised property, and he says, “as to the word thirds, the clear intention must be taken to mean her interest in case of intestacy. If the word did not occur I doubt whether the personal estate would not have been included under the word dower. The word thirds is never used accurately. It is a sort of expression in common parlance descriptive of the interest upon an intestacy.” These are passing observations of the lord chancellor in the course of the argument, yet, notwithstanding these two strong circumstances, as he seems to think them, he decided the case in favor of the claim. He begins by saying that he will decide the case upon a ground different from that taken in the argument, and then goes on, “ as to the other points, first, whether the settlement was a purchase of the wife’s fortune. Upon so much of the case as appears to me, I do not think it was. According to the modern cases it is established that the settlement for that purpose must either express it to be in consideration of the wife’s fortune, or the contents of it altogether must import, and plainly import it, as much as if expressed. That is the result of the cases upon the subject, and it is not worth the while to consider in what respect the older cases are *unsatisfactory, involving inquiries not easy to execute.” Notwithstanding, then, the passing observations of the lord chancellor, the case is strong in point as far as the analogy goes to the decision which is now made; and I will, as he did, cease to examine the old and analogous cases, a most unprofitable task, and come to those in which the point has been fully, clearly and most explicitly decided, both here and in England. In Roper’s excellent Treaties on Husband and Wife, vol. II. p. 24, speaking of the rights of the wife under the customs of London and York, and the statute of distributions, he says: But there is one peculiarity which must be noticed, viz : that in the instance of the widow’s title under the statute of distributions, whether the husband die intestate, or dispose of his personal estate by will, which fails by lapse, if the wife be barred of her distributive share by settlement before marriage, she will be equally excluded in favor of the next of kin, as of the particular legatee. This, however, is not the case when the husband by his will makes provision for his wife, stating it to be in lieu and bar of all her claims upon his personal estate, and then disposes of his personalty, and such disposition lapses, or is void, so that the fund becomes the property of the next of kin. The bar created in favor of the legatee will not be considered as extending to the next of kin ; therefore, notwithstanding the expressions in the will, the widow will be entitled to a share under the statute of distributions.” He goes on to observe that Lord Alvanley found this principle recognized by Lord Cowper in Sympson v. Hulton, and upon the authority of that case decided the case of Pickering v. Lord Stamford. Now, in the case of Sympson v. Hulton, the words are : “all which devises and bequests he declares to be in full of herdower, thirds, and other claims, in lawor equity, or by any local custom, to any other part of his real or personal property.” Yet, as 10 a Parf *he Property bequeathed in the very same will, *the wife took a share under the statute of distributions. And so in the latter case, Pickering v. Stamford, the words are in satisfaction of all dower or thirds which she could have, or claim, in, out of, or to all or any part of his real or personal estate, or either of them. If upon a lapse of the property contained in the same will, the widow was allowed to take a share under the statute of distributions, how much stronger is her claim to property not mentioned in the will, and clearly not within the contemplation of the testator. I shall conclude this branch of the case with a reference to the case of Cogdell v. Cogdell, in which our own court made the same decision as in the two foregoing cases, and the widow was allowed to take a distributive share of the lapsed property.

As to the second question which is made in the brief, it has been most unnecessarily and unprofitably raised in the case; for, in the first place, the testator has himself provided by will in what manner and out of what funds the debts due by him shall be paid, and it ought to have been shewn that they were insufficient before such a question should have been raised. And secondly, the defendants, by their own shewing, in the accounts exhibited, have proved that there were ample funds to pay the debts. By their exhibit G, it appears that they, the executors, owe to the testator the sum of 8112.900, which was a fund in their hands at once, for the payment of debts. And by exhibit No. 2 of their amended answer, they shew that there is due to the firm 8253,000, and that the debts amount to 8120,000, leaving a clear balance of 8233,000; besides the crops of three large estates, and exclusive of the personal property in exhibits F and O, which was sold. But as the court are of opinion that there is no sufficient ground to disturb the old and well established rule on this subject, they do not hesitate to confirm the decree *of the chancellor on that point also, hut they would not be understood to say that it is so inflexible as not to be departed from on some occasions : not, however, without express authority to the executor by a competent tribunal given, or by the will. Upon the question made as to the payment of the money due by the executors into court, the court is not sufficiently informed to make the order required. Although the defendants shew sufficient funds for the payment of the debts, yet a report by the commissioner is necessary; and on going before him, they may show that the debts have been paid, as far as their own debt due to the estate would go, and that they have been diligent in collecting the other debts. But if on such investigation it should be found that the affairs of the estate are still in the same situation, the court will not hesitate to enforce any order which may be made, in conformity with the practice of the court, for carrying into effect the will of the testator.

Nott, J. (some of his friends being concerned) gave no opinion.

Decree affirmed.  