*Ninety-six District.*

Heard before Chancellor Gaillard.

#### Richard Quarles, et al. *vs.*S. Garrett and J. Middleton administrators, and Agatha Middleton administratrix of Hugh Middleton, deceased.

CASE XXVi f

The outstanding' and undetermined claim of the widow to her .-.bare of the real estate of her deceased husband, ought not to prevent the administrator from settling' with the children and distributees.— And it is immaterial to the administrator whether the proportions re*146ported by the commissioner be correct or not, if the distributees are satisfied.

JUNE, 1810.

A widow claiming' dower, and having it partitioned off to her by legal process, and holding and enjoying the same, for several years, has made her election, and cannot afterwards set it aside and claim the third in lee simple, under the statute, when the estate is nearly settled.

This case was argued on exceptions to the report of the commissioner. The exceptions relied on were the 1st, 2d, and 10th. First, that the commissioner hath not made a general report between the parties, as the order of .reference prescribed. Secondly, because |thc commissioner refers to a former report in the cause, which hath not been made by him to this court. Tenthly, that it is not such a report as will enable the court to decree according to.equity and good conscience. It was contended by the counsel lor the defendants, that different sums having been advanced by *the*intestate, in his lifetime, to some of his children, who claim a distributive share of liis estate, those sums ought, as they were given in advancement to the children, to be brought into ac - count ; that the administrators and administratrix might know what sum to pay to each of the distributees. That the former report, the subject of the second exception, was never made to this court, and yet is engrafted in the subsequent report of the commissioner. That Mrs. Middleton, the administratrix and widow of the intestate, is entitled to one third of the real estate of the intestate; and that until a decision can be had on her claim to this third, a complete arid final division of the intestate’s estate cannot bo obtained. The court having heard arguments on the exceptions, is of opinion that the report is conformable to the order of reference. That the commissioner having ascertained the proportions of the estate due to each distributee, and also the distributees’ being «iüsiicd with these proportions, as ascertained by him, it is immaterial to the administrators and administratrix, whether thej he correct or not.

The court having called upon the counsel to proceed on his cross bill, the object of v liich is to obtain the '.vt'low‘,s third of l!r'-intestate's real óslale, and lie having *147stated that lie was not ready to go into Ibis matter, the court thought a postponement of the consideration of this point ought not to prevent a settlement of the accounts of the administrator and the administratrix, it is therefore ordered that the administrator and administra-trix, do pay to the distrubutocs, the sums respectively due to them according to the report of the commissioner, and that the costs of the original suit (not that withheld by the cross bill) be paid out of the estate.

Afterwards, the case depending on the cross bill, Agatha Middleton *xs.*Richard Quaides, and others, (children of Hugh Middleton,) came to a hearing before chancellor Thompson. After argument, the. chancellor delivered the following decree:

The bill states, that Hugh Middleton, late of the district of Edgefield, died intestate, on or about the-day of-, in the year of-, leaving complainant his widow, and the children mentioned in said bill, who were the offspring of his three former wives. That the said Hugh at the time of his death, was seized and possessed in Ms own right of divers tracts of land, &c. of which, some of the said defendants, who had intermarried with the persons in'tlio bill mentioned, had received their full share or proportion, or nearly so, by advancements made to them in the lifetime of complainant’s intestate ; and prays that they may discover as to then* re-•;pective apportionment, so that an equal partition and distribution may bo had, conformably to the act of the legislature of this state, abolishing the rights of primogeniture.

To this bill, the defendants have answered, and have also filed their plea, setting forth, that sometime, shortly after the death of the said Hugh Middleton, the complainant caused to bo issued out of the court of common law, in the district of Edgefield, a summons in dower, for the purpose of having assigned to her one third part of the estate of her deceased husband, (during her life,) as dower at common law. That in obedience to a commission, issuing from the said court, commissioners vrere appointed, who proceeded to admeasure *148and lay out to tlie said complainant, lier aforesaid dower j of which possession was delivered to her, and she continued in the enjoyment of it for several years 3 in consequence of which, she was barred from claiming a third part of the estate in fee simple, according to the regulations of the before recited act of the legislature.

Goodwin, and-■ for Mrs. Middleton. — Calhoun and Bowie for Quarles, and others.

The whole of the case, therefore, resolves itself into this single point, whether the proceedings in dower, at common law, are a sufficient manifestation of her having made her election to pursue her common law right, as to bar her of her statute remedy, or not? And the court is clearly of opinion, that they are; and more particularly, as, at the time the said proceedings were carrying on, it is apparent she entertained an opinion, that the estate of her intestate husband was insolvent: And that it is too late for her now to come in, after almost all the affairs of the estate have been adjusted, *to*set them again afloat and make a second election, and thereby acquire a right under the aforesaid act, to one third part thereof in fee simple. The court, therefore, decrees that the bill be dismissed, and that the complainants pay the costs.

There was no appeal from this decree.