*Ninety-Six District.*

Heard before Chancellor Gaillard.

#### Archibald Douglass, et al. *vs.*Jacob Clarke, et al.

CASE rfri.

A widow is entitled, under the statute of 1/91, for abolishing the rights of primogeniture, &c. to one third of the real estate of her intestate husband, in fee. — This is in lieu and bar of dower. If she dies without having claimed her dower, her representatives are entitled 1» the third which the statute gave her in fee.

*144JUNE, 1810.

Tiie complainant, Douglass, married one of the daughters of Phebc Ilearst, by her former husband, Cochran. The other complainants are her children by the same marriage. The complainants state., that shortly after Mrs. Cochran’s intermarriage with Ilearst, he died intestate, seized in ice of a valuable estate in lands,, leaving Phebc Hearst his widow, and several children, all of whom were by a former marriage. That under the, act for the abolition of the rights of primogeniture, and for the giving an equitable distribution of the real estate of intestates, sbc’became. entitled to one third of the real estate of said intestate, in fee simple; and the children of Ilearst to the other two thirds of it. That the said Phobe Hearst died intestate, about three years after the death of her husband, without having had her proportion of his estate, partitioned oif to her. Her legal representatives, the complainants, claim the third of Xicarsl’s real estate, and pray for a writ of partition. The facts are admitted by the defendants, who are the children of Hearst. The counsel for the defendants resisted the claim Of complainants, on the ground stated in the answer, that in cases of intestacy, when the widow has not elected in her lifetime, to take the provision made for her in her husband’s real estate by the abovementioned statute, she is considered as having made choice of her provision of dower. They relied on the following clause in that statute; *“*That in all cases where provision is made by this act for the widow of a person dying intestate, the same shall, if accepted, be considered as in lieu and in bar of dower,” and they contend that the widow, having died without signifying by any act her acceptance of her distributive share, the same never vested in her, and was not transmissible to her representatives.

Chancellor Gaillard

delivered the following decree:

Where a person entitled to real estate in fee simple dies without disposing of it by will, the act for the abolition of the rights of primogeniture, &c. directs the manner in which it shall be distributed. *“*First, if the intestate shall leave a widow and one or more children, the widow shall take one third of the real estate, and the re*145mainder shall be divided between the children, if more than one, but if only one, the remainder of the estate shall be vested in that one absolutely forever.” The court is of opinion that under this clause, on the death of Mr. Hearst, his widow became entitled to one third of his real estate,* and that no act on her part was necessary to vest in her a right to this third. The intention of the clause which says that "where provision is made fox* the widow of a person dying intestate, the same shall, if accepted, be considered as in lieu and bar of dower,” is obvious,* it was merely to prevent the widow from having one third of the intestate’s real estate, and her •lower also. She cannot have her distributive share under the act, and her dower likewise. She has not had her dowei*, nor does it appear she ever intended to claim it. Her repi’esentatives, the complainants, are therefore entitled to that part or share of Hearst’s estate which, ou his death, vested in bis widow. Let the writ of partition issue.

Goodwin, for appellant — Yancey, for respondent.

Theodore Gaiixabd.

From this decree there was an appeal, which was heard by chancellors James, Thompson, Desaussure and Gaillard.

After argument, the decree of the circuit court -was affirmed.