300 HIGH COURT OF CHANCERY.

ceive of the real estate is not equal to that portion thereof which
she would be entitled to as dower.

If there had been a total failure in the real devise to her, the
case might be governed by different considerations, as the act
of assembly requires a disposition of a part of both the real and
personal estate to divest the wife of a right to both; and such
seems to have been the view taken by the court in Griffith vs.
Griffiths Ex^rs, 4 Har. & McHen., 101, and Coowies vs. Clem-
ents, 4 Har. & Johns., 480. But, as in this case, the devise of
real estate to the wife was not entirely invalid or inoperative, I
do not think she can, because of a failure of a part of such de-
vise, claim indemnity out of the residue of the estate, to the
prejudice of the other parties, unless as stated above, the share
which she will now receive should be less in value than her
dower.

The counsel of Mrs. Harrison, after quoting the language of
the 5th section of the 13th sub-chapter of the act of 1798, sup-
posed that a widow, who stands by the devise made to her by
her husband, is to be regarded as any other purchaser, and en-
titled, if the title to the land devised fails, to be compensated
therefor out of the residue of the estate of the vendor.

It is true, the section referred to does say, "that a widow
accepting or abiding by a devise in lieu of her legal right shall
be considered as a purchaser with a fair consideration;" but
this language is qualified by the preceding words of the same
section, which saves the legal rights of widows only in the
cases in which "nothing shall pass by such devise."

If, therefore, anything passed by the devise to the widow,
and she stands by the will, it might be difficult to make out her
right to compensation out of the residue of the estate, because
of a partial failure of the devise to her.

In view, however, of the language of the Court of Appeals
in Coomes vs. Clements, and having a just regard to the spirit
of the act of assembly and the strong equity of the case, I have
come to the conclusion, that if the devise to the widow is in-
valid to such an extent as to make what she receives under
the will, less in value than her legal share of her husband's