#### *John Key and Wife vs. Snowden Griffin, executor.*

Testator devised and bequeathed as follows. “I give, devise and bequeath to my wife and her heirs a plantation, slaves,” and some other property, “and also two thousand dollars, to be made of my estate, which amount is in lieu of the money due me in right of my wife, by virtue of a decree of the Court of Equityand then bequeathed “all the residue of his estate,” after payment of his debts, to his children. On the death of the testator, the wife, as survivor, became entitled to the decree. *Held*that the wife was bound to elect, and that, if she accepted the property bequeathed to her, she could not retain the decree, giving up the two thousand dollars only.

Where benefits are given by a will, and some property or interest of the legatee is disposed of to a third person, if the legatee elects to retain his own property, he does not thereby forfeit all benefits given him by the will, but is only bound to make compensation to the third person to the value of the interest given to him. Per Harper, Ch.

This being a rule on the commissioner, to shew cause why the money collected on the decree had not been paid over to the wife, the court discharged the rule, but refused to adjudicate the rights of the parties, although the executor of the husband and the wife consented.

If the wife had already elected to take under the will, the proper course was for the executor to apply by petition to the court, to have the money paid to him. *Semble.*

*Before*Harper, Ch. *at Edgefield, June,*1844.

The decree of the Chancellor is as follows.

“The complainants, (husband and wife,) recovered a decree in the right of the latter, in the case stated, after which the husband died. This is a rule on the commissioner to shew cause why the money made under the decree should not be paid over to the surviving wife.

The commissioner shews for cause that the said John Key, by his will, executed after the obtaining of the decree, bequeathed as follows: “I give, devise and bequeath to my beloved wife, Mary Ann, and her, heirs, a plantation, .slaves,” and various other descriptions of property, “and also two thousand dollars, to be made of my estate ; which amount is in lieu of the money due me in right of my wife, by virtue of a decree of the Court of Equity for Edgefield district.”

“All the residue of my estate, both real and personal, my will and desire is, that the whole thereof be sold by my executors, hereafter mentioned, on a credit of one year, and \yhen the pro*68ceeds thereof are collected, that all my just debts be paid, and the balance divided into eleven equal portions, one of which I give, devise and bequeath unto each of my following named- children,” &c. naming them.

It is not questioned but that this is the same decree mentioned in the will. Upon general principles of law, the decree would survive to the wife, but the executor contends that the bequest of the two thousand dollars in lieu of the decree raises a case of election, and that the wife has already elected, by accepting the provision made for her by the will. I take for granted that the amount of the decree is larger than the two thousand dollars, *though this is not distinctly stated. A question was indicated, as arising in the case, which has been much mooted, but does not, in fact, arise in it. It is whether, if benefits be given by will, and some property or interest of the legatee is disposed of to a third person, if the first legatee shall elect to retain his own property, shall he forfeit *all*benefits given him by the. will, or only be bound to make compensation to the disappointed legatee according to the value of the interest given ?

The subject is fully discussed, and the cases reviewed, by Mr. Swanston, in his note to *Gretton vs. Haward,*1 Swanst. 4B4. He comes to the conclusion, I think fairly and reasonably, that is matter of compensation. But there is no question of forfeiture here. The wife has received the property specifically given to her, and I suppose the two thousand dollars, and further claims to receive to the full amount of the decree.

The testator certainly regarded the decree as his own, and that he had power to dispose of it. He speaks of it as *his,*though in right of his wife. It is plain that he did *not*intend the wife to have it. He gives her two thousand dollars *in lieu*of it. This cannot mean that she may take the decree or the legacy at her option, which seems to be the construction contended for. This would make the provision nugatory. She would, of course, supposing the decree to amount to more than the legacy, take the larger sum. Suppose the testator had given her five dollars, or one dollar, in lieu of the decree, could such construction be supported1? Then, according to the rule, and on the footing most favorable for her, if she thinks fit to assert her title to the decree, as survivor, she must make compensation to the persons who would be otherwise entitled to the decree, *69out of any property given her by the will. This amounts to the same thing as to say that she shall not take beyond the $2000.

A question seemed also to be made, whether the decree in question, regarding it as the testator’s own, passes under the residuary clause of the will, or whether the testator must be held to have died intestate with respect to it. But the question cannot be considered, upon this proceeding, by a rule against the commissioner; no order could be made that the executor should pay over a distributive share of the residuary estate in his hands. The children are the proper parties to litigate that question, and they are not parties to this proceeding.

Rule discharged.”

The plaintiff, Mary Ann Key, appealed, and now moved the Court of Appeals to reverse the decree of the presiding Chancellor, on the following grounds :

1. Because the decree in favor of the complainants, Key and wife, in right of the wife, survived to her, and therefore- she had a right to have the money collected and paid over to her.

2. Because the said, decree does not belong to the executor, nor forms any part of John Key’s estate, nor is the same disposed of by his will.

3. Because the acceptance by the wife of the devise and bequest to her, under the will of her husband, except the bequest of two thousand dollars, (which she never accepted, nor has she received any part thereof,) is no bar to her right to receive the amount of the decree.

4. Because the widow has a right, by a just construction of the will, to take all that is therein given to her, (except the legacy of two thousand dollars,) and also to collect the decree and receive the money in her own right.

5. Colonel Tomkins, the executor of the will, and who represents all the legatees of that estate, raises the present question through the commissioner of this court, and with his consent, and that of Mary Ann Key, the plaintiff. It was agreed to submit the question for the decision of the court, under a rule against, and a return by, the commissioner.

*Bauskeit,*for the appellant.

Wardlaw, contra.

*

The amount of the decree was stated by counsel to be $2500.

Curia, *per*Harper, Oh.

I was mistaken, it appears, in conjecturing that the testator’s widow had received the two thous- *70and dollars bequeathed to her by the will. But according to the view I have taken, this is immaterial. If the testator had only given her the land, slaves, (fee. and had declared expressly that the decree should form part of his estate, whether to pass under the residuary clause of his will, or to be distributed as property intestate, it is plain that she could not have taken both, without defeating the provisions of the will, and must have elected. He has declared, in very unequivocal terms, that he regards the decree as his own, and in the case supposed, she has already elected, by taking the land, (fee.' It can make no difference that he has given her a further provision in lieu of the decree. There is no shadow of ground for the construction that he intended to give her the choice between the funds. If she should take the decree she must make compensation out of any property given her by the will, and, by faking the land (fee., may be said to have already elected.

It is urged that she had the apparent and only legal title to the money as survivor, and that the court should, as of course, have ordered the money to be paid to her, leaving those who claim it to seek it as they may. But I certainly understood that all parties agreed in the facts, and also agreed in submitting the question. There was, I think, some irregularity in seeking to obtain the opinion of the court in this summary and collateral way. But the proceeding by rule is an appeal to the equitable discretion of the court, and if there appear any equitable cause, it may, without adjudicating the matter, refuse its interference and leave the parties to proceed by suit. If the commissioner should receive notice that a plaintiff to a money decree had assigned it, it would, I apprehend, be at his own risk if he should afterwards pay the money to the assignor, and the court would not order him to do that which it would be against his duty to do. But if this be a case of election, and the widow has in fact elected, this is equivalent to an assignment. This is no adjudication, nor will the court, upon a summary application, order the money to be paid to the executor. If he claims it, he must institute some proceeding to try his right to it. In the case of an assignment it is usual to proceed by petition, making the assignor a party. Motion dismissed.

The whole court concurred.