#### CHRISSEY BROWN vs. JOHN S. BROWN, EX’OR. &c.

Though it is otherwise in England, yet, by our Statute, any testamentary pro-for a wife, in either real or personal property, excludes her from any other share of her husband’s estate of either kind, unless she dissent from the will in the manner and within the period pointed out by the Statute, and thereby elect to’take according to her legal rights, independent of the will.

This case happened before the Act of 1835, ch. 10, but that act refers only to the case of personal estate, giving the widow the same share of a residue of personal estate, as if the husband had died intestate — but has no provision as to real estate.

The cases of Craven v. Craven, 2 Dev. Eq. 338. Redmond v. Coffin, 2 Dev. Eq. 437; and Ford v. Whidbce, 1 Dev. & Bat. Eq. 16, cited and approved.

Appeal from the Superior Court of Law of Pitt County, at the Fall Term, 1844, his Honor Judge Caldwell presiding.

The case was heard upon the pleadings, and according to them the case is this. Benjamin Brown died in September, 1822, having made his will in October, 1821, and therein provided for his wife by gifts of both real and personal property, and appointed the defendant executor. In November, 1822, the defendant proved the will, and delivered to the plaintiff and other specified legatees, their legacies. The will contained no residuary clause, and there was a considerable surplus of personalty not disposed of, which the executor then divided among the children of the testator, as his next of kin.

In March, 1844, the plaintiff) who is the testator’s widow, instituted, under the statute, the present suit against the executor by petition in the Superior Court, and therein claims a child’s part of the surplus. The answer insists, that the plaintiff was never entitled to a share thereof, and, if she had been, that she is now fewd by her b-.bu; ír. On the bea> Superior Court dismisses anti t>«fj ¡cíii.'iiüií appealed.

*137 J. H. Bryan and Biggs for the plaintiffs.

Mordecai for the defendant,

cited the following cases: Craven v. Craven, 2 Dev. Eq. 338. Redmond v. Coffin, 2 Dev. Eq. 466. Sanderlin v. Thompson, 2 Dev, Eq. 539. Ford v. Whidbee, 1 Dev. & Bat. Eq. 21.

Ruffin, C. J.

According to the rule, as finally established in Pickering v. Stamford, 2 Ves. Jr. 272, 581, and 3 Ves. 332, 493, the plaintiff would be entitled to a decree in England. It is there settled, and, as far as we see, properly settled, that a testamentary provision in lieu of thirds of the testator’s real and personal estate, does not exclude the widow from a share of the surplus undisposed of, or that turns out not to have been effectually disposed of, but that she shall have the same share thereof, as if the husband had died intestate. But that rule does not prevail in this State. The court has not dissented from the rule; as one arising out of the general equitable doctrine of election, applied to persons claiming under the statute of distributions. But the legislature, in the acts of 1784 and 1791, have enacted a different rule of election. It is unnecessary to go through their provisions in detail, because it has already bedn distinctly and repeatedly held, that they clearly import, that any testamentary provision for a wife in either real or personal property excludes her from any other share of her husband’s estate of either kind, unless she dissent from the will in the manner and within the period pointed out by the statute, and thereby elect to take according to her legal rights, independent of the will. In Craven v. Craven, 2 Dev. Eq. 338, it was so held in respect of dower, where the provision in the will was entirely of personalty. In Redmond v. Coffin, 2 Dev. Eq. 437, the widow took both land and chattels under the will, in which there Was a disposition of certain slaves of the residue of the estate, which was illegal and ineffectual; and it was held, as to them, that there was a resulting trust for the next of kin, excluding the widow. In Ford v. Whidbee, 1 Dev. & Bat. Eq. 16, there was a gift to the wife of certain personalty, and also a piece of land for *138two years, and then a further gift of 1000 dollars in lieu of dower; and there Were also legacies to two (out of six) of the .testator’s children, expressed to be in satisfaction of all their p0rtjons 0f the testator’s estate, and there was a residue of personalty not disposed of. We decided, that the two children, notwithstanding the words of exclusion, were entitled, equally with the other four, to the surplus, inasmuch as the law gave it to them, unless the testator gave it to some one else. But, at the same time, we held, .that, notwithstanding the will only mentioned that the wife’s dower was satisfied thereby, she could not claim any part of the residue, because the statute shut her out,- unless she would dissent. These adjudications are conclusive, the more especially as they are sanctioned by a just inference from the subsequent action of the legislature. In the next session after the decision of Ford v. Whidbee, it was enacted, that whenever a testator shall leave a residue of personal estate undisposed of in his will, and shall leave a widow, she shall be entitled to the same share of the residue, as if the husband had died without leaving a will. This act, 1835, ch. 10, purports to change the law in respect to the personal estate,, and to that only. Consequently it leaves the rule enacted in the previous statutes of ’84 and ’91, in full force as to dower,, and the adjudications thereon unquestioned. But the recent act has no operation in this ease, as the testator died in 1822.

Per Curiam, Decree affirmed' with costs.