(dissenting.) The Court is unanimous in giving relief to Mrs. Bennett. But what shall it be ? Harper being informed that Thompson proposed to devise to Harper’s wife what we called the “home farm,” and to Mrs. Bennett the tract of six hundred acres, which Thompson had some years, before conveyed to Harper, he (Harper) assented, and said, “Let the will be so.” Thus Harper placed himself in such relation to the transaction as disables and estops him from retracting, because to allow it would work a fraud upon Mrs. Bennett. Thus Harper, in consideration of benefit to his wife, aud to his own possible curtesy, in her securing the home place, which was much more valuable than the six hundred acres, agreed to treat, and that the testator should treat, his wife as owner of the six hundred acres, and so brought himself and her within the principle of the doctrine of election as administered by courts of equity, and justified the Circuit Court in putting Mrs. Harper to an election. It will not do to say that this would give Mrs. Bennett the entire home farm in case Harper and wife elected to retain the six hundred acres (and the home farm is of greater value than the six hundred acres); for if Mrs. Harper and her husband prefer to retain the six hundred acres, then, after election, compensation to Mrs. Bennett for her disappointment in not getting the six *554hundred acres would be made by charging its value on the home farm; not in giving Mrs. Bennett the whole home farm, agreeably to the principle of compensation in such case as administered in equity. 2 Story, Eq. Jur. § 1085; 1 Born. Eq. Jur. §§ 467, 468.
The decree, in specifying the character of election enforced upon Mrs. Harper, is too broad in the fact that it compels her to choose whether she will surrender to Mrs. Bennett the six hundred-acre tract, and take under the will the land devised to her, Mrs. Harper, or surrender to Mrs. Bennett the devised land and retain the six hundred-acre tract; whereas it should have compelled Mrs. Harper to elect whether she would surrender the six hundred-acre tract, or keep it, and pay Mrs. Bennett its value, to be charged on the devised land. This view is strengthened by the tact that the conveyance by Thompson to Harper of the six hundred acres was most likely an advancement by Thompson to Mrs. Harper, made to him by her consent, presumably.
But suppose we are told that the principle of election can not he applied to the case, because Harper owned the six hundred-acre tract, and not his wife, and that Harper is not a person contemplated by the will, and his acquiescence in the scheme of the will can not operate upon him so as to bring the case within the principle of election, still the fact remains that the borne farm was given by the will to Mrs. Harper, with the tacit condition or understanding on the giver’s part that her sister should have the six hundred acres, and we can say that, if he had known that Mrs. Harper’s husbaud would refuse to give up the six hundred acres to Mrs. Bennett, he certainly would not have given Mrs. Harper the valuable home farm, thus giving her that large bounty, allowing her husband to retain the six hundred acres, and leaving' Mrs. Bennett without a dime of his bounty.
Binding it impossible to carry out exactly the design of the will, by reason of Harper’s refusal to surrender his title to the six hundred acres, equity, by analogy, should do just what it would do if Mrs. Harper had owned the six hundred-acre tract, and elected to retain it. It is a matter of no consequence how it comes about that Mrs. Bennett can *555not get the six hundred acres as the testator designed, whether from the refusal of Harper to surrender his title to it, or from Mrs. Harper’s refusal to surrender it, if she were its owner; because the one result in either case exists as a fact — that is, that she can not get the six hundred acres.
"What, then, would a court of equity do if Mrs. Harper owned the six hundred acres, and refused to surrender it to Mrs. Bennett? It would give Mrs. Bennett compensation for its loss to the extent of itsvalue, and charge the amount on the land devised to Mi’s Harper by the will, giving Mrs. Harper any surplus. In the present case we should do the same thing by analogy.
'The foregoing opinion of President Lucas adopts a different road to give relief to Mrs. Bennett. It allows Mrs. Harper to retain the whole of the land devised by the will to her, free of any burden, and imposes the burden wholly on her husband on account of his conduct. Perhaps, to use a familiar expression, that is serving him right, and may be justified in equity, as far as he may speak. But, if this course is adopted, I can not clearly see why equity would not give Mrs. Bennett the whole six hundred acres, just as the testator and Harper intended ; for, if Harper’s conduct — his agreement that the will should be made as it was made — is such as to justify a charge on his six hundred acres to the measure of its own value, why is' it not sufficient to compel him to relinquish it entirely ? If that conduct is sufficient to justify us in going half way, why not the whole way ?
REVERSED.