The opinion of the Court was delivered by
Moses, C. J.If the order directing the issue to the jury to determine the identity of the persons intended by the will of the testator, Powers, to be the objects of his bounty was erroneous, the appellants, by interposing no objection in the Court below, are precluded from submitting any exception here. So, too, as to the grounds, which charges error in receiving evidence de hors the will. The competency of such testimony was not resisted on the trial, and its admission, therefore, cannot be now questioned. — Abrahams & Son vs. Kelly, 1 S. C., 235; Shelton vs. Maybin, 4 S. C., 541; Fox vs. Railroad Company, ibid, 543. The order for the issue, it is alleged, was made by consent. Certainly it was without resistance by either party, and it is not easily perceived how the jury could have ascertained to whom the term “wife and children” was to apply without a resort to parol testimony. Besides all this, the Judge, independent of the verdict, reached the same conclusion by inferring the intention of the testator from the whole language of the will itself and the relation in which he stood at the time of its execution both to Sarah Turner Powers and her children and to Sarah Connor Powers and his issue by her.
It is conceded, if the first marriage was legal, as the Circuit Judge has adjudged, that the provision for Sarah Connor Powers and her children would be voidable at the instance of the lawful wife or children under the fourth Section of the Act of 1795, (General Statutes, 425,) to the extent of all exceeding one-fourth of the clear value of the estate of the testator after the payment of his debts. It is urged, however, that they have lost whatever claim they may have had under the statute by electing to claim under the will. This objection js groundless. The doctrine of election can only apply to inconsistent gifts by one to the same party, where, from the apparent intent of the donor, expressed or implied, the acceptance of either by the donee precludes him from all right to the other. *300Here the respondents insist and the Court has decreed that the wife and children take nothing under the will; and yet it is contended that a mere claim to its provisions deprives them of the benefit which the law has secured by the statute in the very event of a will by a husband or father disposing of his whole estate to a woman with whom he has lived in adultery or his bastard children. The inconsistency is apparent from themerestatement of the proposition. There must be alternative gifts before the parties can be put to their election. As is said in Buist vs. Dawes, (3 Rich. Eq., 300,) “wherever two rights arealtecnatively created or given, either in express terms or by construction, the party to whom they are given is entitled to only one of the two and must elect between them.” Even if the case could be regarded as one involving the doctrine of election, as Mr. Adams in his Treatise on Equity, 96, says, “the electing party is entitled to know both interests; and the mere fact that the benefit has been conferred, or even, that it has been accepted in ignorance of the conveyance, does not bind his right.” To the same effect are. the authorities in this State, of which it is only necessary to referSo Gist vs. Cattel, 2 DeS., 54; Hall vs. Hall, 2 McC. Ch., 269, and Pinckney vs. Pinckney, 2 Rich. Eq., 218. To affirm, as is done in the decree, that “the election has been in the complaint,” would carry the doctrine to an extent entirely inconsistent with the principles on which it is founded.
While the Court would not be generally disposed to grant relief beyond that which is specifically demanded in the complaint, yet where it contains also a prayer for general relief, and the rights to which the plaintiff may be entitled are affected by the acts of the defendants in the very subject matter in which the plaintiffs assert an interest, it will not dismiss the action and impose the necessity of further litigation and expense provided the proper parties are before it in the pending suits, — more especially when the Circuit Judge, as in the case before us, discusses and reviews the very grounds upop which the plaintiffs are entitled to relief, and only withholds it from his reviews in respect to the election, which, in his judgment, debars him from extending it. His error in that regard is made one of the grounds of appeal, and, by the argument on both sides, is recognized as properly submitted to the correction of this Court. While the complaint may not be as comprehensive as it might have been in stating all the grounds upon which relief was sought, its main purpose was to subject the estate of the testa*301tor, in the hands of the defendants, to a full accounting. The mere fact that the plaintiffs claimed a partition and distribution under the will should not deprive them of the relief to which it is found they are by law entitled, especially when the question as to their right in the very particular was discussed in the trial below, is made a point in the decree, and by appeal is brought for revision. In fact, the 190th Section of the Code provides that “no variance between the allegation in a pleading and the proof shall be deemed material unless it have actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits.”
While, for the reasons stated, so much of the decree as establishes the identity of the persons referred to in the will must be affirmed, it is ordered and adjudged that the plaintiffs, the children of the said John Powers by Sarah Turner Powers, his wife, are entitled to so much of the reaTcIear value of the whole estate of the said testator, after payment of his debts, as shall exceed the one-fourth amount or value thereof.
The case is remanded to the Circuit Court for such orders as may be necessary to give effect to the judgment of this Court, question as to the costs to be hereafter determined.
Wright, A. J., concurred.