GOODBURN VS. STEVENS. 437

leges that the surviving partners have carried on the business
under the name and style of the old firm; and after making ex- ,
pensive improvements from the profits of the concern, they have
divided among themselves large annual sums, and it prays that
these surviving partners "may be required to pay to the com-
plainant as administratrix, the share of her intestate of the per-
sonal property of said concern, as well as his share or portion
of the profits which have accrued thereon since his death."

My opinion, therefore, would have been, independently of the
opinion of the Court of Appeals, that the complainant had made
her election to claim a share of the profits; and I should not
have been prepared to say, that having so elected, she would
have been at liberty afterwards to claim interest.

But the Court of Appeals, as I think, have settled this ques-
tion also. They say, "it was the undoubted privilege of the
appellant," (the complainant,) "on the case made by the bill,
to demand the profits produced by the employment of her hus-
band's share of the property, from his death to the institution
of the suit." And having thus elected to claim profits and not
interest, and the general rule being that the party is not at
liberty to claim profits for one period and interest for another,
I think the complainants must be restricted to a claim for pro-
fits, until the 31st of August, 1841, when the business was
brought to a close, by the decree for a sale of the property.'

An account of profits must, therefore, be taken down to that
period, and upon the sum thus found due the complainant, to-
gether with the amount due her intestate at his death, interest
must be allowed from the date of the decree to the mean day of
sale, under said decree.

Besides this claim against the partnership growing out of its
indebtedness to the deceased partner, the complainant, the
widow of Samuel Hayes, claims a reasonable and just allow-
ance in lieu of her dower interest, in the real estate owned by
her husband, and which constituted a part of the partnership
property. This real estate, as has been decided by the appel-
late court, though regarded in a court of equity as personal es-
tate for all partnership purposes, yet in the absence of an ex-
37*