surviving husband, in the real estate of which she died the owner. As this land has been sold during coverture, his curtesy xpectant, if there be such a contingent estate, is gone, and at her death no right to curtesy would survive to her husband. The statute relating to the acknowledgment of deeds and other instruments, required he should join with his wife in the execution of this mortgage. It was a legal necessity that he should do so, to make it a valid mortgage, but in so doing he furnished no part of the idemnity. The fund therefore, did not arise, even in part, from the principal, and hence the general rule, that where a principal indemnifies one surety it inures to the benefit of his co-sureties, does not apply. [To appear in 39 Ohio St.] Judgment affirmed. DOWER-PROVISION IN LIEU THEREOF ELECTION. Spangler v. DUKES. 1. Where a husband intending to make a provision for his wife in lieu of dower, executes and delivers to her, through the intervention of a trustee, a deed for a portion of his real estate, which is reasonable in amount and value, and is given and accepted in consideration that she release all claims as widow against his estate, and theu dies intestate, owning other real estate, in which she is entitled to dower under the statute, she may, at his death, elect to waive the provisions made for her, and claim ber dower, but she cannot claim both. (Rev. Stats. 4189.) 2. If, after the title is vested in her by such conveyances, the unrecorded deeds are, by mutual consent, destroyed, the title is not thereby reinvested in the husband; neither is her right at his death to make such election divested, although by such destruction of the deeds it was intended to reinvest him with the title. 3. When, after commencing an action to quiet her title to such provision, and when the same is pending and is being contested, she, without being fully advised as to her rights, claims and receives dower in other lands, sold to pay debts, she may still be permitted in furtherance of justice, to make her election, and accept such provision on condition that she restore to the estate the amount so received as dower, and release all claims to dower in the residue of her husband's lands. 4. Where a husband during coverture makes a provision for his wife, in full of all her claims as widow against his estate, including her right to dower, which she accepts, and he dies intestate, she is not thereby barred of her right to the year's support provided by law, out of his estate. Collier v. Collier, 3 Ohio St. 369, followed and approved ERROR to the District Court of Wood County. In the court of common pleas, Elvira Dukes brought her action, alleging that she had the legal title and was in possession of a certain tract of land of about eighty acres, that plaintiffs in error set up and claim an estate therein, and prays that they be compelled to show their title, and that it be declared void as against her. The amended answer of Nancy Spangler, first, denies that plaintiff has a legal title; second, avers that the plaintiff is the widow of one John Dukes, who died February 28, 1875, intestate, leaving defendant his sole heir, and that at the time of his decease was seized among others of the tract of land in controversy, and of an equitable estate in certain other lands, all of which descended to defendant, subject to the payment of debts, the widow's dower, and the provisions made for her by statute. She further alleges that about the twenty-third of November, 1872, John Dukes, was then seized of other lands of the value of $20,000, and personal property of the value of $8,000, and owed about $14,000; that he was then old and infirm, and subject to be influenced and controlled by plaintiff, by means of which she procured his consent to a disposition of his property to be effectual after his death, so that she could hold her portion free from interference, and free from any claim by the heirs of her husband, and to that end she procured a justice of the peace to draw the necessary papers, among them a release by her of all her claims to her husband's estate, on his conveying to her the land in question; that in part performance of that arrangement, a deed was executed by John Dukes to convey this land to his wife, but defendant denies that it was properly executed and delivered, so as to pass her the title; that said arrangement was never carried out, nor did she execute any release, and the pretended deed under which plaintiff claims, was ineffectual to pass title. Further, that before said arrangement was completed, it was, by mutual consent, abandoned, and the papers already prepared were can celled and destroyed, and that no consideration passed for said deed. It is also averred that plaintiff, as administratrix of her husband's estate, procured to be set off to her as her year's support, notwithstanding said arrangement, the sum of $2,000 in money, as well as other allowance made for her by statute for her year's support, and claims dower in all the lands of her husband.. The prayer is, that plaintiff's title be adjudged void; or if that is not done that the consideration named in said deed, $12,000, which is the value of the land, be declared a lien thereon, and be paid in such manner as the court may direct. To this plaintiff replied, denying that John Dukes died seized of this land, or that the same descended to defendant. John Dukes died January 28, 1875. This action was commenced March 12, 1875. Defendant's answer was filed August 16, 1875. On the first trial in the district court on appeal, the court, at the conclusion of plaintiff's testimony, dismissed plaintiff's petition, holding, on the case made, that she had no cause of action. This judgment was reversed by this court in Dukes v. Spangelr (35 Ohio St. 119), for reason s therein stated, and the cause was remanded for further proceedings. On the next trial the court made a special finding of facts and a conclusion of law therefrom in favor of defendant, in error, as follows: "1. On the fifteenth day of November, 1872, the said John Dukes, being aged and infirm, was sick, and as he then believed, could not recover. That the plaintiff was his fourth wife, about thirty years younger than himself, and childless. That said John Dukes had only one child, the defendant, Nancy D. Spangler, who was his daughter by a former marriage. That in the year 1850 said John Dukes gave to his said daughter two hundred and forty acres of land in Hancock county, for which he paid $2,400, and was its then value. That he had given to her a small amount of household goods at her marriage, and had never given her anything else. That in the year 1850 said John Dukes gave to George W. Spangler, the husband of his said daughter, eighty acres of land in Hancock county, then of the vale of $400, and never gave him any more. That on said fifteenth day of November, 1872, the said John Dukes held by deed and title bond, twelve hundred acres of land in Wood county, Ohio, including the two hundred and forty acres in this case in controversy, in all of the value of $28,800. That the said two hundred and forty acres were then worth $9,600. That there was unpaid on his said lands the sum of $3,290. That he then owed Richard Dukes $2,000; Lewis Dukes, $3,500; Laskey, $3,500, and other debts $662. That his per That sonal estate at that time did not exceed his said debts. on said fifteenth day of November he sent for one Lewis Dubbs, a justice of the peace of said county, to come to his house, and when there, he then informed said justice that he wanted to make a disposition of all his property. That he wanted to deed one eighty acre lot to one Horn, a young man he had raised, and he wanted to deed the two hundred and forty acres in the petition described to one-Wood, as a trustee, and by said Wood to be conveyed to his wife. That the balance of his estate he wanted to give to one of two objects-either to establish a school for the education of young ministers or the missionary society, and that he wanted to consult said justice about which would be best. "The said justice said to him he had better do it by will. That said Dukes said no; he had consulted a lawyer about it, and it could be done that way. That said justice then wrote, and said Dukes executed and delivered said deeds to Horn. And that said justice then wrote the deed for said two hundred and forty acres from said John Dukes to said Wood, which was in due form of a warranty deed from said Dukes to Wood. That the consideration named in said deed was $12,000. That it was then duly signed and acknowledged by said Dukes, witnessed and delivered. That no consideration then or afterwards was paid or intended to be paid. That at the same time the said Wood duly conveyed, by warranty deed, said premises to the plaintiff, and the consideration in the deed named also was $12,000, but no part of it was then paid or intended to be paid. That to sign said deeds said Dukes was held up in bel, and after so executing the same he became so exhausted and sick that he said to said justice that he was not then able to complete the disposition he then desired to make of the balance of his estate, and he requested said justice to remain. until morning to finish, but the justice could not do go, and it was then arranged that said justice should be sent for as soon as said Dukes should be able to complete his intended disposition. "That said Dukes afterwards became much better, and able to be up and attend to business, and never afterward sent for said justice or made any further disposition of his estate. "The court also further find that at the time of so executing said conveyance to said Wood, and by Wood to the. plaintiff, said Dukes intended the same as a settlement and full provision for her out of his estate. That the same was a reasonable provision for her, and said John Dukes then intended and understood that the same should be in full of all rights and claims on her part out of his entire estate as his widow. And that the plaintiff so accepted said conveyance with full knowledge of all the matters herein above stated "The court further find that afterwards, in July, 1873, the said John Dukes sent for said justice and the witnesses to said deeds to come to his house, and when they had done so he requested the plaintiff to bring out said deeds to Wood and herself, and when she had done so he said he wished them destroyed, and said justice asked the plaintiff if it was her wish, and she replied 'Yes, I suppose so, if it is his wish.' And thereupon said justice burned said deeds up, the same not having been recorded. That said Dukes afterward gave as a reason for so doing that his relatives complained about the deeds and threatened to sue him. That said John Dukes died intestate, January, 1875, and the plaintiff, Elvira Dukes, administered upon his estate. That she claimed and was allowed for the year's support, under the statute, $2,000, which sum she received out of the personal estate. That she also claimed and received property of the value of $100 and the other allowance of household goods. "That afterward plaintiff married one Newton, who was appointed administrator de bonis non of said estate, and the personal property being insufficient to pay the debts, on the sixth of January, 1879, he filel his petition in the Probate Court of said county of Wood, representing the deficiency to be |