1. To refer to an auditor is not obligatory upon the court, but is in its sound discretion. After there has been a reference and a report, and new parties have been added by amendment, a second reference may doubtless be made, but the court is not obliged to make it.' The new parties can adduce their evidence at. the trial, and both the old and the new have a fair and complete hearing.
2. Exceptions to the report were being tried by the judge without a jury, Grant that the auditor had admitted illegal evidence, the mere reading of the report would not thereby be hindered. The report had to be read in order to get at the contents, so as to determine the exceptions.
3. One of the exceptions to the report complained that the auditor admitted certain illegal testimony, but this may have been done without objection, and if so, the excepting parties would be too late. Exceptions which merely complain of the illegal testimony, without alleging that it was objected to, should not be sustained, for they do not go far enough.
4. In respect to the clothing of the young lady, it seems that the presiding judge only kept out evidence as to value until its relevancy should be made to appear.
*1165. Yery many papers were submitted to the judge in bulk and went before him by consent with no determination at that time as to which would be treated as evidence, and which would not. He certifies, in effect, that he considered some of them and did not consider the rest, but how to distinguish the former from the latter we know not. ' If we undertook to say that this or that particular paper was considered, we might be mistaken; and there is equal chance of mistake if we ventured to say it was not considered. In order to review findings on facts, it is essential to know what was evidence in the case and what was not.
6. The dower of Mrs. Pace was not cut of by any statute of limitations, for these statutes were suspended. Neither was it cut off by her attempt to execute the will. A widow appointed executrix is entitled to accept the office of executrix and act in it without forfeiting her right to dower. Where the will, in some of its provisions, is inconsistent with dower, she ought to elect between them in a reasonable time under all the circumstances, but she may wait long enough to ascertain the actual condition of the estate, and see what will be the practical operation of the will, in its real working, upon her interest as widow or dowager. A will apparently unobjectionable may turn out, on fuller information as to extrinsic facts, and on some trial of its practical working, to be anything but acceptable. Considering the state of the times, and all the circumstances, we cannot say that Mrs. Pace waited too long; or rather we cannot overrule the presiding judge in his decision to the effect that she did not.
No reason for withholding confirmation of the assignment of dower is presented by the fact that the dower estate may be liable to factors or others in consequence of legal or equitable rights in their favor against Mrs. Pace, now Mrs. McLaren, predicated on her transactions in the management of the estate. The question now is whether she is entitled to dower. If she is, it is her property and is not now in court as a fund to be distributed. When factors or other *117creditors come against it to subject it- as dower, she may or may not be able to resist them.
7. Any use of the dower lands for the benefit of the estate of the testator which was either made by the widow or acquiesced in by her, may be treated as a concession on her partin behalf of the estate under the peculiar circumstances surrounding herself and the property. She was executrix, and undertook to execute the will. The will did not anticipate any assertion by her of the right of dower, and doubtless there was a long interval during' which she did not contemplate asserting the right. She went to work to carry out the will, and it was years before this purpose was abandoned. No dower lands were laid off, and the whole realty was used as the property of the general estate. It was not understood that she as executrix was renting from herself as widow, nor was it understood that McLaren was renting from her whilst he represented the estate. t There were various equitable circumstances to be considered in passing upon her right to claim rent, after she had apparently waived it. There could be a waiver implied, and in raising the implication all the surroundings, so far as they were iu evidence, might be looked to. To deny her rent until she had claimed and secured dower, was not, in the decision of such a case, improper.
8. In the allowance or rejection of the various claims which were before the court, whether against the estate of the testator or in its favor, and in ranking for payment such as were allowed, the presiding judge, so far as we can ascertain from the record, committed no error which calls for a reversal of his judgment. Besides the labor which the members of this court as a body bestowed on the case, one of them gave to it special study and examination, and kept it for a very long time under consideration. In bulk and complexity, nothing equal to it can be easily found. In fact, it is a sepa/rate science, and to do it full justice upon every detail would require an opinion not less voluminous than the record itself. To write such an opinion is a task which I *118could not perform to my own satisfaction, or to that of the parties or their counsel, without ceasing to participate in the current business of the supreme court.
Judgment affirmed.