Marshall., Ch. J.

after stating the case, delivered the opinion of the Court as follows:

Thd material questions in the cause are:

• 1. Has a Court of equity jurisdiction in the case ? •

2. Is the Plaintiff, Susanna, entitled to dower ?

3. If these points be in her favor what decree ought the Court to make?

, According to the practice which prevails generally in England, Courts of equity and Courts of law exercise . a concurrent jurisdiction in assigning dower. Many reasons exist in England in favor of this jurisdiction: one of which is, that partitions are made and accounts are taken in chancery in a manner highly favorable to the great purposes of justice. In this case dower is to be assigned in an undivided third part of an estate, so that it is a case of partition of the original estate 'as well as of assignment of dower in the part of which Lewis Hipkins died seized.

*377 An additional reason and a conclusive One in favor Of the jurisdiction of a Court of equity is this : lands are in' possession of ,a purchaser who hats not yet paid the purchase money* A Court of law could adjudge to the Plaintiffs only á third part of the land itself. Now, if the Plaintiffs be willing to leave the purchaser undisturbed, to affirm the sales and to receive a compensation for her dower instead of the land itself, a Court of equity ought never, by refusing its. aid, to drive her into a Court of law and compel her to receive her dower in the lands themselves* This is therefore a proper case for "application to a Court of Chancery*

2. It is perfectly clear that the provision made by Lewis Hipkins in his last will is no bar to a claim of dower for several reasons, of which it will be necessary to mention only two.

1. It is not expressed to be made in lieu of doWer.

2. It is not averred that she has accepted the provisión and still enjoys it.

3. It remains to inquire what decree the Court ought to make in the case.

The first question to be discussed is this: Is the Plaintiff, Susanna, entitled both to dower and to the provision made for her in the will of her.late, husband?

The law of Virginia has been construed to authorizes an averment that the provision in the will is made ul lieu of dower, and to support that averment by matter dehors the will. But, with the exception of this allowance to prove the intention of fhe testator by other testimony than may be collected from the will itself, the act of the Virginia legislature is not understood in any respect to vary the previously existing common law;

. In the English books tliere are to be found many decisions in which the widow lias been put to her election either to take her dower and relinquish the provision made for her in the will, or to take , that provision and ¿relinquish her dower. There are Other cases in which *378 she has been permitted to hold. both. The principle upon which these cases go appears to be this:

It is a maxim in a Court of equity not to permit tW same person to hold under and against a will. If tli^re.-, it be manifest, from the face of the will, that the testator did not'intend the provision it contains for his widow to he in addition to her dower, hut to be in lieu of itj if. his intention discovered in other .parts of the will must be defeated by the allotment of dower to the widow, sitó must renounce either her dpwer, or the benefit she claims under the will. But if the two provisions may stand well together, if it may fairly be presumed that the testator, intended the devise or bequest to his wife as additional to her dower, then she may hold both.

The cases of Arnold v. Kempstead and wife, of Tillaracl and lord Galway, and of Jones v. Collier and others, reported by Ambler, are all cases in ’ which, upon the principle tiiat has been stated, the widow was put to her election.

In the case under consideration neither party derives any aid from extrinsic circumstances, and therefore the cáse must depend on the will itself.

The.value of the provision made for the wife compared with the whole estate is not in proof: but so far as a judgment on this point can be formed on the evidence furnished by the will itself, it was supposed by him to be as ample as his circumstances would justify.

The only fund provided for the,maintenance and education of his five children is the rent of 140Í. per annum, payable by P. R. Fendall. Since he has made a distinct provision for his wife, the presumption is much against his intending that this fund should be diminished by being charged with her dow'er.

That part of the willy too, which authorizes P. R. Fendall, in the event of building a mill and not receiving from the sons of the testator their half of its value, to hold the premises until the rent, should discharge that debt, indicates an intention that in such case the whole rent should be retained-

*379 • The clause, too, directing the residue of his estate,to he sold for the payment of debts is indicative of an expectation that the property stood discharged of dower, and is a complete disposition of his whole estate. The testator appears to have considered himself as at liberty to arrange his property without any regard to incumbrance of dower.

Upon this view of the will it is the opinion of the majority of the Court that the testator did riot intend the provision made for his wife as additional to her dower, and that she cannot be permitted to hold both.

She has not however lost the right of election. Np evidence is before the Court that she has accepted the provision of the will, nor that she still enjoys it. Indeed there is much reason to suppose the fact to he otherwise. The decree of 1803, does not . except the lands decreed to her for life from its operation, _ nor is the Coprt informed by the evidence that those lands were not sold under it.

But if she had accepted that provision and still enjoyed it, there is no evidence that she considered herself as holding it in lieu of dower. On the contrary, she was in the actual perception of one third of the rent accruing on the lease held by P. R. Fendall ; and in the deed executed by her in 1797, before hqr second mar-, riage, she conveys her dower in the lands leased, to Fcndall, and also her dower in the lands devised to tier by her deceased husband. It is therefore apparent that, she never intended to abandon her claim to dower.

The next enquiry tp be made by the Court is, to what profits is the Plaintiff, Susanna, entitled in consequence of the detention of dower ?

It is unnecessary to decide whether, in general, a person claiming dower from a purchaser can recover profits which accrued previous to the institution of her suit. In this case the Plaintiff was in the actual enjoyment of dower. She received one third of the rent accruing from the premises for nine years; She was therefore in full possession of her dower estate; anil when afterwards the land was sold under a decree of a *380 Court, P. R. Feudal! was one of the'executors who made t]ie sale, and was himself in effect the purchaser of the estate. Upon no principle could he justify the refusal to pay that portion of the rent which was equal to her doWer in the.land, unless on the principle that she was entitled to dower. In this case therefore the Plaintiff is entitled to one third of 1401. per annum for the remaining four years of the lease under which P. Rw Fendall held the land, and to an account for profits after the expiration of the lease.

But thé Plaintiff, Susanna, cannot claim the profits on her dower and hold any portion of the particular estate devised to her, or of the! profits on that estate. An account therefore must be taken, if required by the Defendants, showing what she has received under the will of her husband. Tliigj must be opposed to the profits to which she is entitled for dower, and the balance placed to the credit of the party in whose favor it may be.

It remains to enquire whether the allowance of a sum in gross in lieu of dower in the land itself, or of the interest on ohe third of the purchase nioney, might legally be made.

This must be considered as a compromise between the Plaintiffs and the Defendant, Deane. His assent being averred in the bill, and the bill being taken pro coiifesso as to him, this may be considered as an arrangemdht to which he has consented. ' This, however, cannot affect the other Defendants. They have a right to insist that, instead of a sum in gross, one third of the purchase money shall be sot apart and the interest thereof paid annually to the tonant in dower during her life.

If the parties all concur in preferring a sum in gross to the decree which the Court has a right to make, still it is uncertain on what principle seven years were taken as the value of the life of the tenant in dower. It is probably a reasonable estimate, but this Court does not .perceive on what principles it was made, nor does the record furnish tiic means of judging of its reasonableness.

This Court is of opinion that there is error jn the decree of the Circuit Court in not requiring the Plain». *381 tiff, Susanna, to elect between dower and the estate devised to her by her late husband, and in not allowing profits on her dower estate if she shall elect to take dower. The decree is to be reversed and the cause re-mantled for further proceedings in conformity with the following decree:

This. Court is of opinion that the Plaintiff, Susanna, is not barred of her right of dower in the lands of which her late husband, Lewis Hipkins, died seized, but that she cannot hold both her dower and the property to which she mpy he entitled under the will of the said Lewis. She ought therefore to have made her election either to adhere to her legal rights and renounce those under the will, or to adhere to the will and renounce her legal rights, before a decree could be made in her favor.

This Court is farther of opinion that the Plaintiff, Susanna, having been in possession of her dower by the receipt of rent for several years after the death of her late husband, is, in the, event of her electing to adhere to her.claim of dower, entitled to receive from the estate of P R. Fendall the profits which have accrued on her dower estate in his possession from the time when, he ceased to pay the same, until the sale was made to the Defendant, Joseph Deane, and is entitled to receive from the said Joseph Deane the profits which have accrued thereoji since the same was sold and conveyed to him to ascertain which an account ought to be directed. And the Court is further of opinion that an account ought also to be directed to ascertain how much the said Susanna has received from the estate of her' late husband, and what profits she has. received from 'the estate devised to.her in his will: all which must be deducted from her claim for dower,

: The Court is further of opinion that if the parties or either of them shall be dissatisfied with the allotment of a sum in gross, and shall prefer to have one third. part of the purchase money, given by the said Joseph Deane for the lands in which the Plaintiff, Susanna, claims dower, set apart and secured to her for her life, so that, she may receive during life the interest accruing there- *382 oil, and shall apply to the Circuit Court to reform its decree in this respect, the same ought to be done.

It is the-opinion of this Court that there is no error in the decree of the Circuit Court for the county of in determining that the Plaintiff, Susanna, was entitled to dower in the estate of her late husband, Lewis Hipkiris* deceased, but that there is error in not requiring her to elect between her dower and the provision made for her in the will of her late husband, and in not decreeing profits on the same. This Court doth therefore reverse and annul the said decree; and doth remand the cause to the said Circuit Court with instructions to reform the said decree according to the directions herein’ contained.

Johnson, J. dissented from the opinion of the Court, but did not state his reasons.