Durham v. Rhodes

Weise, J., 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 ²⁴¹ connected with the other claim for purchase money paid, as in the event of the latter being allowed a deduction for rent is prayed, it being shown or admitted that the said Elizabeth was, and remained in possession of said property from the death of her husband, and for a considerable period afterwards. The amount of such deduction would therefore depend upon the determination of the question, whether she had dower or not in said property. 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 ²⁴² it were res integra, the views of the learned counsel for the other appellants, would strike the mind of this Court with the greater force. The debts contracted for the purchase in this case, are debts for which the estate devised is liable. It would seem reasonable, if not incontrovertible, that a widow, taking under a will in lieu of dower, after full time allowed by law to enable her to make a judicious election, (that time, in Maryland, being six months after administration granted,) would take an estate devised to her after the payment of all debts and expenses subject to those debts.

But a review of the authorities upon this question in England, and recognised by this Court, leads us to adopt the view presented by the learned Judge who decided this case below, and to affirm his ruling in this particular also. 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