delivered the opinion of the Court.
Alexander Chinn was twice married, and died in 1838 or 59, leaving children by his former, but none by his last wife, Mary Chinn, the appellant. By his last will and testament, he made a provision for the appellant, which she, in conformity to law, renounced, and elected to take her dower, under the third subdivision of the third section of the act concerning dower, R. C. 1835. No executor being named in the will, administration, with the will annexed, was committed to Mary Chinn, the appellant. The personal property remaining to the estate, after that taken by the appellant, as above stated, in lieu of the provision made for her by the will and of her dower, being insufficient to satisfy the debts due by her deceased husband, instead of selling the slaves and personal property taken by her, as above stated, for that purpose, she applied to the County Court for a sale of the real estate. The County Court made an order of sale, and, on an appeal to the Circuit Court, that order was reversed, and the cause is brought here.
The question in the case is, whether the personal property and slaves given by the third subdivision of the third section of the act concerning dower are to be freed from the payment of the debts until the real estate *711of the deceased is exhausted, or whether, like other personal estate, they are first to be applied to that purpose, before his land can be subjected to the liability.
The subdivision referred to enacts, that when a husband shall die leaving a child or descendant, but not by his last marriage, his widow may, in lieu of dower, elect to take, in addition to her real estate, the slaves and other personal property, in possession of the husband, that came to him in right of the wife by means of the marriage. The fourth section of the act provides that this provision shall be subject to the payment of the husband’s debts.
The common law being the foundation of all our legislation, statutes must be construed in reference to it. It is a well settled principle at common law, that the personal estate is the proper fund to pay debts and legacies, and in general is first to be applied, though the real estate may be charged. Lapton vs. Lapton, 2 J. C., 627. Indeed, this principle, though not expressly declared, is clearly deduced from the provisions of our code. In Stokes vs. O’Fallon, 2 Mo. R., it was held that the personal estate was the primary fund for the payment of debts, and that when a widow took a portion of the personal estate as her dower, subject to the payment of debts, the real estate could not be applied in exoneration of the personalty. The slaves taken by the appellant, under her election, originally belonged to her, but by the marriage they became the absolute property of the husband. If she afterwards elected to take them as her dower, and took them subject to the payment of debts, and as they were the primary fund for the payment of debts, it is hard to discover any ground on which she can base her right to withhold them from the burden to which they are subjected by law, and resort to the land for the payment of the debts.
The law has made one general provision for all widows. It has placed them all on the same footing as to dower, and if there is any inequality in their condition, it is owing to the fortunes of their husbands, and not to the law. Under particular circumstances, it is permitted to widows to renounce this general provision, and to take another kind of dower.— This is not obligatory on them. It is their own voluntary act, and if it should afterwards turn out that their election was not as wise as was ex-, pected, they can complain of none but themselves. Ample time is allowed them to make their election.
Judge McBride concurring, the judgment will be affirmed.