#### *Esther A. Cunningham*vs. *Charles J. Shannon and others.*

By ante-nuptial contract, husband agreed, that, if his wife should survive him, and no provision should be made for her in his will in an amount equal to $20,000; or, if he should die intestate, and she, as his heir, should not receive from his estate an amount equal to $20,000; then, he charged his estate with the payment of $20,000, or such sum as will make up that amount, to be held by the trustee for her use for life, with remainder to the issue of the marriage; *provided,*that, if she survived, she should have no part of the estate then owned by him, or which should be purchased by him after the first day of January then next ensuing. Husband purchased lands after the first day of January succeeding the date of the marriage contract, and died leaving a will, by which, 'in addition to the provisions made for his wife by the marriage contract, ’ he devised and bequeathed to her some negroes and other personalty and an interest in some of his real *estate:*— Held, that the wife was entitled to the provisions made for her by the marriage contract, to the devises and bequests in her favor, and to dower in all the lands purchased by the husband after the first day of January succeeding the date of the marriage contract, so far as such claim of dower was consistent with the devises in her favor.

Testator devised his plantation and his town house to his daughter for life, for her sole and separate rise, with limitations,_&c., and'provided that his wife should be entitled, for life, to use, occupy and cultivate four hundred acres of the plantation, to cut and haul from the plantation such fire wood and such timber for buildings or repairs as she may desire, and either to use and enjoy his town house, or, to reside on his plantation, as she may *choose:*— Held, that there was nothing in the provisions of the will which excluded the wife from her right of dower in the plantation, except in so much thereof as she elected to take for life under the will; and that she^as bound to elect whether she would take the town house for life, or reside on the plantation.

*136Every devise which a husband malíes of land upon which his wife’s 1'ight of dower attaches, is presumed to be made subject to the right of dower, unless the contrary appears on the face of the will, in express words, or by the strongest kind of implication.

A widow is not entitled to take dower in the same lands in which she takes an estate for life under her husband’s will.

*Before*Dargam, *Oh. at Kershaw, June,*1851.

DaRGAN, Ch. Joseph Cunningham being about to solemnize a marriage with complainant, Esther Cunningham, on the 20th day of July, 1841, entered into an ante-nuptial marriage contract with the said Esther Cunningham, (then Niles,) and William McWillie, the trustee of the said marriage settlement; by which the said Cunningham, in consideration of the intended marriage, did stipulate and agree, that in case the said intended marriage should take effect, and the said Joseph should thereafter die, (the said Esther then living,) not having made provision by his last will and testament for the said Esther, in a sum of money or an amount of property equal to $20,000; or in case the said Joseph should die intestate, and the said Esther shall not receive from his estate, as one of his heirs at law, a sum of money, or an amount of property, equal to $20,000; that then, and in that case, the said Joseph Cunningham charges his estate with the payment to the said William McWillie, trustee as aforesaid, &c., of $20,000, or such sum of money as will make up the sum of $20,000, when added to what the said Esther may otherwise receive from the estate of her said intended husband. The deed of settlement then further provides, that the said sum of money shall be held for the sole and separate use of the said Esther, &c., for the term of her natural life; and from and immediately after her death, the said sum of $20,000, or so much thereof as may be held in trust, shall go to the issue of the intended marriage, share and share alike, to them, their heirs and assigns forever; *provided,*always, that in case the said Esther shall survive her said intended husband, that then and in that case, the said Esther shall have no part or parcel of the real or personal estate of the said Joseph, now owned by *137him; nor of such as he may purchase before the first day of January next, or of the increase of the negroes now owned by him, by virtue of any right. of dower, 'distribution or otherwise; the said sum of $20,000 being settled upon and secured to the said Esther in consideration of the said intended marriage, and in further consideration of her hereby relinquishing such claim.

The marriage took place, and the parties lived together until the-day of May, 1850, when Joseph Cunningham departed this life, leaving one child by the aforesaid marriage, and several other' children by a former marriage; leaving also a large real and personal estate, all of which was disposed of by his last will and testament.

It will be unnecessary for me to notice any portions of this will, but such as bear upon the issues involved in these pleadings. In the first clause, the testator makes provision for his wife as follows : “ In addition to the provisions made for my wife, Esther A. Cunningham, by virtue of a deed of marriage settlement, or ante-nuptial agreement, dated the 20th day of July, eighteen hundred and forty-one, executed by myself, the said Esther A. (then Esther A. Niles,) and William McWillie, I give and bequeath to my said wife the following named negroes, to wit: Abram, Erankey, Bet-sey, Lucy, Tom, William, Thomas, Martha, Jim Williams, and Hannah Williams, for and during the term of her natural life; and from and immediately after her death, I give the said negroes to such of my children as may be living at the time of her death,” with various limitations over. In the latter part of the same clause, he also gives her his library, his two carriages, and a pair of horses; and he says, *“*she shall be further entitled to the benefits reserved for her, in the clause of this will, devising the plantation called Betty’s Neck.”

In the second clause of his will, the testator gives to his daughter Elizabeth, during the term of her natural life only, with sundry restrictions and limitations, all that plantation lying on the western side of the Wateree, usually called the Betty’s Neck place, purchased by him from William McWillie, including all the swamp *138and all the high lands purchased from said McWillie, and embracing all the land then owned by him on the west side of said river ; also his dwelling house' in the town of Camden, on DeKalb street, together with all the premises thereto attached: — and proceeds by the same clause to give to his daughter Elizabeth a large legacy of negroes with limitations over; and to her absolutely, all the live stock, provisions and implements to be found on the said plantation at his decease. The testator concludes the said clause as follows: “ It is, however, my will, desire and direction, and the devise in this clause contained, is made subject thereto, that, my said wife, Esther A. Cunningham, shall be entitled to use, occupy and cultivate, for and during the term of her natural life, four hundred acres of the Betty’s Neck place, to wit: two hundred acres of swamp land, two hundred acres of highland, adjoining the land of Powell McRae; and also for and during the term of her natural life, to cut and haul from the said Betty’s Neck place, such fire wood, and such timber for buildings or repairs, for her own use, as she may desire; and also, that my said wife shall have the use and enjoyment, for *her*natural life, of either my Camden house, in this clause mentioned, or she may reside for life on the Betty’s Neck place, as she may choose; and with the house so occupied by my said wife, she shall have the use (without being accountable for the waste) of the household and kitchen furniture found in such house, and on the premises, for her natural life ; and from and immediately after her death, I give the same or so much thereof as remains, to my daughter Elizabeth.”

By the third clause, the testator gave to his daughter, Mary M. Cureton, with various limitations and remainders, a large real and personal estate, and included in the devise is the testator’s “ house and premises situate in Kirkwood, lately purchased by him from William McWillie.”

By the 11th clause of his will, he gave, *inter*alia, to his grand son, Cunningham B. Cureton, a tract of land, designated therein “ as the Stark plantation, situated near Camden, on the Watoree river, and known as the Belton placeand by a codicil to his *139will, be gave to bis daughter Elizabeth, a tract or plantation, designated therein as the Stockton place, and called Red Hill, lately purchased from W. J. Taylor; and .also a tract designated in’the codicil as the piece or parcel of land situate in Kirkwood, near the town of Camden, lately purchased from William E. Johnson, and a tract of land purchased in January, 1846, by James B. Cureton and Joseph Cunningham, jointly, from Sami. E. Hurst, trustee of W. R. Young and wife, and containing one thousand acres.

All the various portions of the testator’s real estate which have been thus particularly noticed, and which have been devised by him as has been stated in my preceding remarks, have been acquired by the testator after the first day of January next succeeding the date of the execution of the deed of marriage settlement, and the solemnization of the marriage, and are therefore not subject to the inhibitions of the deed of marriage settlement, as to the complainant’s claim of dower; and she has filed this bill, *inter*alia, for the purpose of having her dower assigned to her in said lands, which she claims as not inconsistent with the provisions of the will.

She prays, that the executors of the said'Joseph Cunningham may be decreed to pay the said sum of twenty thousand dollars, and the interest due thereon to a trustee to.be substituted in the place of William McWillie, who has left the State, and that her dower may be assigned her in all the lands acquired by the testator, subsequent to the first day of January next succeeding the date of the marriage settlement, and for an account of the rents and profits; and that she may be permitted to take the same, together with the provisions made for her.by the said will, and by the said deed of marriage settlement, &c.

The claim of dower is highly favored in *equity,*whose duty it is perhaps, above all other jurisdictions of the country, to afford its protection to the weak against'the strong.

Dower is not unfrequently the only resource of the unfortunate widow, under the double calamity of the loss of husband and property. And she is sometimes driven to resort to it, where an in*140considerate or unkind husband has despoiled her of her legitimate rights in his estate by the provisions of his will.

Bower is a right, which, inchoate during the coverture, becomes absolutely vested in the wife as an estate, on the death of her husband ; and is as much beyond his control or power of disposition as her own inheritance. It not being *his*to give, every devise which he makes of the land upon which the right of dower attaches, is presumed to be given subject to the legal estate, unless the contrary appears on the face of the will, in express words, or by the strongest kind of implication.

In Park on Dower, 237, it is said to be *“*a right attaching by implication of law; which, although it may possibly never be called into effect, (as where the wife dies in the life-time of the husband,) yet from the moment that the fact of *marriage and*of *seisin have concurred is so fixed*on *the*land, as to become a title paramount to that of any other person claiming under the husband by a subsequent act.”

“ To exclude a widow from her legal right, (of dower,) either there must be an express declaration to that effect, or it must clearly appear from the whole frame of the will, that it was the testator’s intention to give her something, *wholly inconsistent*with her enjoyment in that legal right.” Seethe authorities establishing this principle, collected ini Roper on Husb. and Wife, 579, *et seq.;*2 Roper on Legacies, 530, *et seq.*

*“*It is to be collected from all the cases, that as the right to dower is of itself a clear legal right, an intent to exclude that right by voluntary gift must be demonstrated, either by express words or by *clear and manifest*implication. If there be any thing ambiguous or doubtful; if the Court cannot say, that it was *clearly*the intention to exclude, then, the averment that the gift was made in lieu of dower, cannot be supported; and to make a case of election, that is necessary; for a gift must be taken as pure until a condition appear. This I take to be the ground of all the authorities.” Per Lord Redesdale in *Burmingham*vs. Kirwin,‘(2 Sch. and Lef. 452.)

*141It was contended in tbe argument, tbat tbe English as well as American decisions on this 'subject are discordant, and tbat it is difficult to extract from them any settled principle. To me it appears, tbat there has been little or no difference in tbe decisions, as to tbe general principles by which questions of this sort have been adjudged. On tbe contrary, there has been a remarkable harmony among tbe Judges in tbe acknowledgment of tbe great and leading doctrines upon which they have uniformly, and for several centuries, professed to have been governed. The discord, if any, has arisen from the different and ever varying circumstances of the cases; and the difficulty has always occurred in the practical application of established and acknowledged principles. It is very easy with the charts before us, to define and express the general rules applicable to the subject. But when the task is to construe the will, for the purpose of ascertaining whether the claim of dower be inconsistent with the intention of the testator clearly expressed, or necessarily implied; *hoc opus est, hie labor.*That cases have been erroneously decided none can doubt who will read the reports. But the conflict in the decisions has arisen, for the greater part, in the manner and for the causes that I have stated. Those, too, who preside in Courts, possess, like other men, differently constituted minds. Two strong-minded and learned Judges, basing their judgment upon the same general principles, may rise from the construction of a deed or will with opinions as opposite as the antipodes. It is obvious that these difficulties are inherent in the nature of the human mind, and must continue to exist in the practical enforcement of this, as of all other legal rights, by human tribunals, as long as the'intellectual condition of man remains unchanged.

But to recur to the more immediate subj ect. That the English law has been correctly defined in my preceding remarks, is abundantly proven by the British Statute which alters it, (3 and 4 Will. 4 ch. 105, sec 9.) By this, it was enacted, that where a husband shall devise any land out of which his widow would be entitled to dower, if the same were not so devised, or any estate or interest therein to *142and for the benefit of the widow, such widow shall not be entitled to dower out of, or in any such land of the said husband, unless a contrary intention be declared by his will. The statute proceeds upon the assumption, that the law before was the reverse of that which was therein enacted, and contained a clause restricting it to a prospective operation. The statute itself proves that the reverse of the provision therein enacted was the acknowledged principle of the common law.

In South Carolina, there has been no legislation materially affecting the widow’s right of dower; and the case before me must be adjudged by the principles of the English common law, as they have expounded in Westminster Hall, *(xordon*vs. *Stevens,*2 Hill Ch. *47; 2*Johns. Ch. 448. I cite these cases for the purpose of shewing the source to which American Courts resort for illumination on this subject.

I have shewn that the rule of the common law is, that th,e claim of dower will prevail, unless it will defeat the intention of the testator clearly expressed upon the face of the will, or appearing by necessary implication.

There are other cases, (some of which will be hereafter cited,) by which this abstract proposition has been more distinctly and particularly illustrated, and its meaning explained. Aided by the light reflected from these, I will proceed to adjudge the case in hand.

And first, as to the Betty’s Neck place lying on the western side of the Wateree river, purchased from William McWillie, the testator gave this place to his daughter Elizabeth Cunningham for life, to her sole and separate use, with remainders, &c., embracing the whole foe, subject to a right on the part of his wife, the complainant, to use, occupy and cultivate, for and during the term of her life four hundred acres of the said place, -two hundred acres of the swamp and two hundred acres of the high lands adjoining the land of Powell McRae, with the right to cut firewood, timber for repairs, &c., with also the right to have the use and enjoyment for life of either his Camden House, or to reside for *143life on tbe Betty’s Neck place, as slie may choose. The four hundred acres thus given to the widow for life, constitutes, as I understand, but an inconsiderable proportion of the whole value of the place. The question here is, whether the gift of such a life interest or estate in the Betty’s Neck place amounts to a clear and manifest intention on the part of the testator to exclude her right of dower, or, in other words, is the right of dower so inconsistent with the provisions of the will as to put the widow to her election ? The gift of the whole fee. to a third person without condition or restriction, with gifts of other property to the wife in the same will, is not incompatible with the claim of dower in the land so disposed of in fee to the said third person. ■ And I do not know that this has been doubted within the authentic period of the English Common Law. Does the gift of a subordinate interest to the widow for life in the land given to another in fee, alter the case ? Are the two-rights incompatible ? Does such a provision, according to the authorities, amount to a clear and manifest intention, on the part of the testator, to exclude the widow from her right of dower, or to put her to her election ?

The leading case in the reports, where the testamentary disposition to the widow is an estate or interest less than the fee in lands of which she is dowable, with a devise to another, of the residue of the estate in said lands, is the case of *Lawrence*vs. Laivrence, 2 Vern. *365; S. G. 3*Bro. Par. Ca. 483. The testator gave his wife an estate *viduitate durante,*in the whole of the premises, with remainder to another on the death or marriage of the widow. He also gave to his wife the whole of his personal estate. She proved the will, possessed herself of the personal estate, and entered upon the lands devised to her drn-ing widowhood. She afterwards, by an action at law, recovered her dower in the same lands, which was assigned to her. The remainder-man filed- a bill to be relieved against the judgment at law, and the case coming before Lord Somers, he decided that the testamentary dispositions in favor of the wife were in satisfaction of her claim of dower. This decree was reversed by Lord Keeper *144Wright, on tbe ground, that there was nothing in the will which manifested a sufficiently clear intention that the widow was to be excluded from her dower. The matter rested here. No appeal was taken to the House of Lords. In a question which was *res integra,*and totally unaffected by antecedent or subsequent authorities, I should have no hesitation in following the opinion of the 'able and accomplished Somers, in preference to that of Lord Keeper Wright. The latter was a man totally unfit for his high station, and owed his elevation, and his possession of the great seal for five years, to his obscurity, and his utter want of qualification. The seeming paradox may be explained by the fact, that the great men of the day were deterred by the perilous nature of the times, and the instability of the public administration, from accepting this high and responsible office, *(a)***But the principle does not rest upon the authority of Lord Keeper Wright.

On the death of the plaintiff in the former suit, one A. Lawrence, who was next in remainder, became *entitled.*He also instituted a suit to be relieved against the judgment in dower. The case came before Lord Cowper, who refused to reverse the judgment of Lord Keeper Wright, and on appeal to the House of Lords, the decree of Lord Cowper was affirmed. This, it must be admitted, was a very solemn and authoritative settlement of ■ the question, and the rule thus established has continued to be the law of England from that day to the third and fourth of William IV, and to the present time, in regard to the wills before the passage of that statute. *Sitchin*vs. *Sitchin,*Pre. Oh. 138 ; *Brown*vs. *Parry, 2*Hick. 685; *Birmingham*vs. *Eirwin, 2*Scho. and Lef. 444; *Lemon*vs. *Lemon,*8 Vin. Abr. 366; *Solditch*vs. *Solditch, 2*Young & Col. 18. Of these cases, the last cited, *Solditch*vs. *Solditch,*as one strongly in point, and of a recent date, I will notice more particularly.

The testator, John Holditeh, devised to his wife, Mary Holditeh, a house during her widowhood — he also gave her an annuity of ¿650 for life, which, after death, was to sink into and form a part *145of his residuary estate. The annuity was charged upon his freehold estate in the Parish of Elton, which was devised, subject to such charge, to the testator’s son, John Holditch, in fee.

The bill was filed by Mary Holditch, the widow, against John Holditch, the son and devisee of the testator, claiming dower out of all the testator’s freehold estate, the annuity of ¿£50 for life, and the use of the house during her widowhood.

The Yice Chancellor, (Sir Knight Bruce,) said: “ I feel bound by the present state of the authorities to say, that a mere gift of an annuity to the testator’s widow, although charged on all the testator’s property, is not sufficient, to put her to her election; and I consider myself equally bound by the authorities to say that a mere gift to the widow so charged, and a gift of the whole of testator’s real estate, though specified by name, to some other person, are not together of themselves sufficient to put a widow to her election. And, moreover, a gift of a portion of the real estate, whether for life or during widowhood, is not sufficient as to the residue, to put the widow to her election in respect of dower.”

“ It is clear, therefore, that the annuity does not bar the wife of her dower. The testator, however, has given her his. house, (which is admitted to be freehold,) during her widowhood; and, after her marrying again, he directs that the same, (that is the house,) shall fall into and form a part of'his residuary estate. Now, if the testator had pointed to a particular mode of using and enjoying the house as one entire thing, after the widow’s second marriage, it might be possibly right to hold, that the will contained a declaration, as in *Roadly*vs. Dixon, that she should not marry again and also claim her right of dower; because, by so doing, she would disappoint the intention of the testator, that the property should be used, and enjoyed in a particular manner. The testator has not done this.” *j*

*. “*To put the widow to her election, on the ground that her claim of dower is inconsistent with the intention of the testator, as to some other legatee or devisee, there must be something beyond the mere gift to the legatee or devisee. There must be such *146circumstances attending tbe gift, as that if dower be admitted, the legatee or devisee will be disappointed in enjoying the property in the mode pointed out by the testator. No such circumstances occur in this case. Therefore, I consider myself bound by the authorities to say, that this will does not exhibit an intention to exclude the wife from dower, to which she is *prima facie*entitled.” It was decreed that the widow was entitled to the annuity for life, to the house during widowhood, and to dower out of all the testator’s lands of which she was dowable.

Upon the authority of the cases I have cited, to which many others intermediate *between Lawrence*vs. Lawrence, and *JLolditcJi*vs. *Ilolditch,*might be added, I hold that the interest in the Betty’s Neck place, devised to the widow, is not inconsistent with her legal claim of dower in the same premises, by metes and bounds, or by assessment, as the case may be.

The devise of the Betty’s Neck place presents the strongest case against, the claim of dower. And if the widow is not put to her election in reference to the Betty’s Neck place, *a fortiori,*she is not bound to elect in regard to any other of the testator’s lands of which he became seized after the 1st January, 1842.

It may not be amiss to notice an objection urged against the claim of dower as to the Betty’s Neck, and the house and premises situated in Kirkwood, purchased from William McWillie. The first was given to the testator’s daughter, Elizabeth, during her natural life, with remainders over, *iifor her sole and separate use;”*and the second was given to his daughter, Mary M. Cureton, for her life, *“ to her sole and separate use,”*with remainders over. It was supposed that the circumstance, that these devises were to *the sole and separate %ise*of the devisees, rendered the case, as to these devisees, analogous to the case of *Miall*vs. *Brain,*4- Madd. 119. In the latter, the testator devised his real and personal estate in *trust*among other things, to permit his daughter *to use and occupy*a certain house, (being a part of the estate devised,) for her life. It was held by the Vice Chancellor, (Sir J. Leach,) that the testator intended that his daughter should have *the per**147*sonal use and occupation of that house*during ber life; wbieb would be inconsistent witb the right of the widow to be endowed of the same house. There is no analogy in the cases. Here the gift'to the devisees, *to their sole and separate 'qse,*was intended only to exclude the marital rights, and not to'secure to them *the personal me and occupation*of the premises. Lands devised in this mode, if there be no other qualifying circumstances, are as much subject to the claim of dower, as if the legal estate were directly given.

It is ordered and decreed, that the complainant is entitled to retain all the interest and estates given to her in the devises of Joseph Cunningham’s will; and also to have her dower assigned to her in all the lands acquired by the said Joseph Cunningham, after the first day of January succeeding the date of the deed of marriage settlement between him and the complainant. It is further ordered, that a writ for the admeasurement of dower do issue according to the usual forms and practice of this Court.

The next question which I am to consider arises on the claim set up by the complainant for rents and profits. It is not denied, that if she is entitled to dower, she is also entitled to an account for rents and profits. But what is to be the measure of her compensation and the mode by which it is to be ascertained ? At common law, no commutation in lieu of dower was allowed; but the widow was only entitled to recover her dower by real action, without damages or costs. The statutes of Merton and Gloucester gave her an action, by which, (where the husband was seized at his death,) she was entitled to recover one-third part of the land for life; with one-third part of the annual value of the land, or mesne profits from her husband’s death until she recovered judgment of seisin, together with costs of suit. Her recovery of one-third of the mesne profits was by way of compensation or damages, for the time she was kept out of the possession and enjoyment of her right. 1 Rop. Husb. and Wife, 439. Eor the wife had no right to enter until her judgment of seisin.

Our‘statutes allow a sum of money to be assessed in lieu of *148dower *when,*in the judgment of the commissioners, to whom the writ for admeasurement of dower has been directed, partition cannot be made, and dower assigned without injury to some of the parties in interest. But no change has been made in the law in regard to the mode of compensating the widow during the time her right has been withheld, with the exception of the case specifically provided for by the Act of 1824. ' This Act provides ' *alone*for the case, where the husband has alienated in his life, and does not die seized. And under these circumstances, in addition to her share of the value of the land, she is entitled to interest thereon from the time of the accrual of her right; that is to say, from the death of the husband. In all other cases she is compensated for the detention of her right by estimating her share of the rents and profits. In a Court of Law this is done by the jury. In Equity, the commissioners appointed to assign dower, though they may, under certain circumstances, assess a sum of money in lieu of dower, have no power or authority to go into the question of mesne profits, or to estimate the damages or compensation to be allowed the widow for the detention of her right. *Gf-ordon*vs. *Stevens,*2 Hill Ch. 429. That is done in this Court, by reference to the master, with directions to take an account of the rents and profits, and to estimate and report the widow’s share thereof. It is accordingly ordered, that the master do take an account of the rents and profits of all the lands of Joseph Cunningham, of which by this decree the complainant is entitled to be endowed, commencing said account from the death of the said Joseph Cunningham ; and that he report the one-third part thereof to be due to the complainant for her share thereof. It is further ordered and decreed, that the share of the complainant in said rents and profits, soto be ascertained, be paid to her by .the executors of the last will and testament of the said testator.

It is further ordered and decreed, that the said executors do pay to the trustee of the complainant, the sum of twenty thousand dollars, secured to her by the terms of the deed of marriage settlement, with interest thereon from the death of the said Joseph *149Cunningham; the said sum of $20,000 and the interest to be held by the said trustee for the uses of the trust.

It is further ordered, that the costs of this suit be paid by the said executors out of the assets of the testator.

Elizabeth Cunningham appealed, on the grounds:

1. Because the complainant is not entitled to dower in the plantation called Betty’s Neck, and to the devises and bequests under the will, but must elect.

2. Because, upon a just construction of the marriage contract, complainant (if dower is assigned her) is only entitled to receive under the covenants of the deed, such sum of money as will make up the sum of twenty thousand dollars when added to the value of the dower assigned her.

3. 'Because the rents and profits of the lands for the year 1850 are, by the Act of 1789, to be first applied to the payment of “ taxes, overseer’s wages, expenses of physic, food and clothing,” and complainant can only take (if at all) one-third of the profits of1850, after deducting therefrom the expenses so charged thereon.

The executors appealed and moved the Court to modify that part- of the decree, which orders the executors to pay to complainant the rents and profits on certain lands, from the death of the testator up to the time the same may be paid to her, in which lands she is declared by the decree to be endowed. Because it is alleged in the answer of the executors and was established at the hearing, that on the first of January, 1851, they had delivered up to the devisees of those lands the possession thereof, who are therefore liable, not the executors.

The executors also moved to add to the decree, an order that complainant be charged with the supplies furnished to her from the plantations in 1850, to be deducted from the rents and profits ordered to be paid to her by the executors.

*Jfcershaiv,*for Elizabeth Cunningham.

*J. M. DeSaussure,*for the executors.

*Caston,*for complainant.

(a)

 4 Ld. Cainp. lives of the Chan. 236; 3 Burnet I-Iist. 335.

*150The opinion of the Court was delivered by

DargaN, Ch.

As to the right of the complainant to be endowed of the lands of her deceased husband, Joseph Cunningham, acquired after the first day of January, A. D. 1842, this Court concurs in the circuit decree, and the general reasoning on which it is founded. I will, on the present occasion, add nothing in the way of argument to what has been said in the circuit decree on this branch of the case, though the subject is by no means exhausted. On the complainant’s claim of dower, the judgment of the Circuit Court is rendered in the following language : “It is ordered and decreed, that the complainant is *entitled to*retain all the interests and estates given to her by the devises of Joseph Cunningham’s will; and also to have her dower assigned to her in all the lands acquired by the said Joseph Cunningham, after the first day of January succeeding the date of the deed of marriage settlement between him and the complainant.” This is perhaps not sufficiently explicit upon one point, and may by construction be made to mean more than was intended, though no such construction of the decree has been contended for on the part of the complainant. It was not intended to say, that she should take under the will the landed estates given to her by that instrument; and also to be endowed of those same estates. It has been settled, that where the testator gives lands to his wife for life by his will, it is repugnant to his intentions manifested by a plain implication, that she should be endowed of those same lands. *Wilson*vs. Hayne, (Chev. Eq. 39;) *Caston*vs. *Caston,*(2 Rich. Eq. 1;) *Lord Dorchester*vs. *Earl of*Effingham, (Coop. Rep. 319.)

The testator gave to the complainant, for life, the use of four hundred acres in-the Betty’s Neck place. He also gave her the privilege of residing in the mansion house on that place, for life, or in his house and lot, in the town of Camden, for her life, as she might choose. She is, in the first place, of course, to elect, whether she will take the mansion house and the easements, on the Betty’s Neck place or the house and lot in Camden. To *151this election she is put by the will. . She is, in the next place, to elect whether, as to the lands given to her by the will, she takes them under the provisions of the will, or by her right of dower in those same lands. To the extent, that she elects to take the real estate given to her for life by the will, she is not to be endowed; and it is so ordered and decreed. It is further ordered and decreed, that she make the elections herein designated, by the first day of June next, unless, before that date, she applies for further time, on reasonable cause shown.

As to the question raised in the defendant’s third ground of appeal, and also as to that made in the first ground of appeal taken by the executors, it is.ordered and decreed, that the case be remanded to the Circuit Court for a trial *de novo ;*that the commissioner take the accounts of the rents and profits as ordered by the circuit decroe, and that he report thereon, with leave to state any special matter ; the equities of all the parties being reserved. It is also ordered and decreed, that the accounts for supplies furnished by the executors to the complainant, mentioned in the executors’ second ground of appeal, be referred to the commissioner, and that he report thereon, with any special matter ; the equities of the parties to be reserved.

It is further ordered and decreed, that the circuit decree be so modified as to conform to the decree of this Court; and that in all other respects the circuit decree be affirmed and the appeals be dismissed.

JohNSTON, DunkiN and WaRDLaw, CO., concurred.

*Decree modified.*