| Md. | Jun 14, 1865
after stating the facts of the case,, (ante, p. 234, et seq.,) delivered the opinion of this Court, as follows:
Elizabeth Albers, or her devisee Sophia Durham, was no party to the proceedings in equity for the sale of the after acquired property, except hy their petitions aforesaid. The claim to dower in it, is only important as it stands
We are of opinion, that the acceptance by Elizabeth Al-bers of the devises and bequests in the will of her husband, barred her dower in the subsequently acquired property. Had she renounced these, she would have taken dower in it, though held by equitable title only, under our Act of Assembly, in such case provided. The acceptance has respect to her dower in all the property, of which she would otherwise be endowed at the time of the act of acceptance, and bars it; just as she would have taken dower, at that time, in all such lands, if she had renounced. We think this is a proper construction of our Acts of Assembly upon this subject P798, ch. 101, sub-ch. 13, secs. 1, 2, 8, 4. 1831, ch. 315, sec. 2.
The case of Chapin vs. Hill, 1 R. I. Rep., 446, referred to and commented upon by the learned Judge below, in his opinion upon this point, upon a similar state of facts,, and under similar statutory provisions in that State, is a direct decision sustaining this view. We concur in the ruling of the Circuit Court of Baltimore city, upon this point; the result of which is to make Elizabeth Albers, or her estate, responsible to the heirs at law of Solomon Gr. Albers, for the full rents, issues and profits of said after acquired property, for the whole period, during which, she and her devisee Sophia Durham, were in possession of the same, after the death of said Solomon, subject to all proper allowances for repairs, taxes, &c., on it.'
The other and main question, — the claim by the legatee, widow, upon the fund for repayment of the purchase money paid by her, — is one of interest and nicety, and, if
A widow, to whom a general bequest is made by -her husband in lieu of dower, is a purchaser of that which she takes under the will with a fair consideration. 1198, ch. 101, sub-ch. 13, sec. 5. 1 Rop. on Leg., 297. Snively vs. Bevans, 1 Md. Rep., 223. Gibson vs. McCormick, 10 G. & J., 113, 114. Mantz vs. Buchanan, 1 Md. Ch. Dec., 205. In this State every devise of land or bequest of personal estate to a widow, unless otherwise expressed in the will, shall be construed to be intended in bar of her dower in lands or personal estate respectively. 1798, ch. 101, sub-ch. .13, secs. 1, 2, 3. And if such a devise be assailed by creditors as unjust or injurious to them, and in fraud of their rights, she will be allowed full satisfaction for her dower. 1 Bland, 204, 205, Margaret Hall’s case; and 10 G. & J., 113, &c., above. In such case the widow does not take by way of bounty, or as a donee or volunteer, but as a meritorious purchaser and contractor.
A general legacy to a widow, in lieu of dower, accepted by her, stands upon a different footing from other general legacies merely voluntary. It will be entitled in the payment of it, to a preference over such general legacies, even where the amount of the bequests exceeds the value of her
The widow, therefore, being not only a legatee, hut a favored purchaser for a fair consideration, whose legacy is not to abate in favor of other general legacies, simply voluntary, how does she stand with regard to a fund, to which a creditor of the testator can resort by virtue of a lien, but whose claim, as a debt against the deceased, she discharges ?
The rule for marshalling assets, as a matter of equitable jurisdiction, is applied in favor of legatees. Here the widow became entitled to the devises and bequests of the will, in lieu of her dower, and her dower in the subsequently acquired estate, was barred by her acceptance of the provisions of the will. The vendor had two funds to resort to for his unpaid purchase money; the real estate sold by him, on which his lien specifically rested; and the personal and other estate of the testator, which had been devised to the widow in lieu of her dower. lie resorted to the legatee, and she discharged bis .claim, by that means, and to that extent, diminishing ' her legacy. In such case, equity will relieve the legatee, and subrogate her to the rights of the creditor. A person having power to resort to two funds, shall not, by his election, disappoint another having one fund only. ’ ’ Such has been the current of authorities in England, since the case of Trimmer vs. Bayne, decided by Sir Wm. Grant, in 1803, 9 Ves., 209. The case of Sproule vs. Prior, 8 Simons, 189, decided in 1836, by Sir L. Shadwell, Vice Chancellor, (and mainly relied upon by the learned Judge below;) and that of Selby vs. Selby, 4 Russ., 336, decided in 1828, by Sir John Leach; review all the previous authorities, and settle the law in England upon this question in favor of legatees, against heirs, devisees and creditors. See, also, Austen vs. Halsey, 6 Ves., 475. Mackreth vs. Symmons, 15 Ves., 339. Headley vs.
We therefore pronounce the order' of the Circuit Court of Baltimore city, correct upon both grounds. The cause will he remanded for the purpose of having an account restated by the auditor, in conformity with this opinion, and with directions to take the necessary proof; each party to pay his or their own costs in this Court and the Court below.
Order affirmed and cause remanded.