Rutherford v. Mayo

Citations

• 76 Va. 117
• 1882 Va. LEXIS 9

Syllabus

<p>1. Election—Jointure—Dower.—Doctrine of election is founded on the same reasons and governed by the same rules when applied to a widow claiming dower as to any other case.</p> <p>2. Oue entitled to benefit under an instrument must, if he claims that benefit, abandon every right the assertion whereof would defeat, even partially, any of the provisions of that instrument.</p> <p>3. If the widow’s taking dower would interfere with any of the provisions of the will she'must elect. Dixon v. McCue, 14 Gratt. 540.</p> <p>4. Testator died February, 1S62, leaving considerable estate in lands, slaves, dioses in action, &e., and a widow and five children. He gave each child $1,000 in money or land, and to the widow all the residue, durante mduitate, or if she married, only one-half of the same; how much not fully ascertained, but much more than her distributive share, and more than all the children together received. She did not renounce, but enjoyed these provisions, or those thereof which the war spared, for thirteen years.</p> <p>Held :</p> <p>The provision was intended for her jointure, under Code 1860, ch. 110, § 4, and she elected it.in lieu of dower.</p> <p>Chancery Practice—Dower.—On credtiors’ bill against testator’s widow and others, all his real estate was, in 1872, so far as necessary to pay his debts, decreed to be sold, except the widow’s dower right therein. Part of that real estate was one moiety of a tract of land and mill, which un- , der the will his son-in-law S received, and S and wife had sold and conveyed same to R, to whom belonged the other moiety. In 1S75 she filed her bill to have dower assigned her in said moiety, alleging that “she had been lawfully deprived of the provisions made for her by the will,”-seeking relief under Code 1860, ch. 110, § 4. The bill did not show how much or what part of those provisions she was deprived of, or that her dower had b'een excepted from sale; and all the legatees, not even S and wife, were made parties. To thi