#### *Susan Caston vs. A. M. Caston et al.*

Testator devised and bequeathed his plantation and forty or fifty negroes to the complainant, his widow, during her widowhood, charging the same with the payment of his debts and the support of his minor children. The complainant held, used and enjoyed the property, under this provision of the will, for eleven years, and then filed her bill claiming dower in the plantation. *Held,*that she could not take the plantation under the will and claim dower in the same also, and that her conduct sufficiently indicated her election to take under the will.

The possession of a devisee may be connected with the possession of a purchaser from the devisee, so as to defeat, under the statute of limitations, the right of the widow of the devisor to dower in the premises, although neither the possession of the devisee nor that of the purchaser be for ten years.

*Before*Dunicin, Ch. *at*Lancaster,

June, 1845.

*The Chancellor.*Samuel Caston, the husband of the complainant, died in May, 1831, possessed of several tracts of land, and possessed of considerable personal property. By his will, dated in May, 1829, he disposed of his estate among his family, and appointed the complainant executrix, and A. M. Caston and Glass G. Caston, executors of the same.

*2This bill was filed on the 13th June, 1843, claiming dower in four several tracts of land therein specifically described, of which the testator was alleged to have been seized during the coverture.

The first may be called the Farm and Mill tract. This plantation, with forty or fifty negroes and other personalty, was devised and bequeathed to the complainant during her widowhood, charged with the payment of his debts and the support of the testator’s minor children. The complainant has held, used and enjoyed the property under this provision of the will for eleven years prior to the institution of this suit.

It is impossible that the testator could have intended that the complainant should have enjoyed this plantation during her natural life or widowhood and yet be entitled to her legal right of dower, or the enjoyment of one third of the premises, at the same time that she enjoyed the whole by the will. Her conduct is a sufficient indication of her election to take under the provisions of the will. See *Hayne vs. Wilson,*Ohev. Eq. R. 37.

The second tract in which dower is claimed, is that on which the testator lived and died, and which is devised to his daughter Elizabeth G. Gaston, during her natural life, with a limitation to her issue living at her death. Elizabeth G. Caston died some years after the testator, leaving children. Neither of the defendants is in possession of the premises, and the children are not parties to these proceedings. No judgment can therefore be pronounced on this claim.

The Patrick McKenna tract was devised to Middleton Caston. Before he became of age he sold and conveyed the land to Uriah Blackman (who is no party to these proceedings) and the complainant united in the conveyance, with a warranty of title. This seems to preclude any claim on the part of the complainant to the aid of this court.

The remaining tract, out of which the complainant insists on her right of dower, is the McShane tract. This land was devised to the defendant, Asia Minor Caston, who was then in possession of the premises. He continued in possession for two or three years afterwards, and then, as ho alleges in his answer, conveyed or sold the premises to his co-defendant Glass G. Cas-ton, who has ever since held and enjoyed the same. Glass G. Caston in his answer insists on a possession of twelve years, in bar of the complainant’s claim. The continued possession by A. M. Caston, or Glass G. Caston, from the death of the testator *3until the present time, was abundantly proved. It was insisted, that as no conveyance was made from A. M. Caston to his co-defendant Glass. G. Caston, the latter could not protect himself under his possession or statutory title. The objection was not made until the argument of the case, and the effect of sustaining it would only be to occasion delay and protract litigation. But the court is of opinion, from the state of the pleadings and the evidence, enough appeared to establish a privity between A. M. Caston and Glass G. Caston, and that their possession may be connected for the purpose of protecting the title to the premises'. *Wilson vs.*McLenaghan, McM. Eq. R. 35.

The bill may be retained for the purpose of making the children of Elizabeth G. Williams party to the proceedings, if the complainant shall be so advised — as to the remaining tracts of land the bill is dismissed.

The complainant appealed, on the following grounds.

1. Because, it is respectfully submitted, there is no provision in the testator’s will which would bar her of her right of dower, or that would put her to an election. And if she had elected, this court ought now to permit her to alter it.

2. Because there was no evidence or circumstance to connect the possessions of A. M. and Glass Caston so as to bar her right of dower in the tract, now in possession of Glass, by the statute of limitations.

3. Because, it is most respectfully submitted, there was no act of complainant which would, in equity, exclude her from dower in the above tracts and all the others in which it is claimed by the bill.

Curia, *per*Johnson, Cn.

This court concur in the decree of the circuit court, and the appeal is dismissed.

Johnston, Ch. concurred.

Harper, Ch. absent.