Bowie, C. J.,
delivered the opinion of this Court.
This case was carefully considered in the Court below where an elaborate opinion was filed with the decree appealed from, to which we might properly refer' for the law without further comment, but for tbe presentation of some points that have been urged in this Court, and do not appear to have been decided.
Among these, it is insisted, the complainant’s bill being framed on the theory that the estate devised to the widow, has been forfeited by her marriage, the parties Bhould be left to their legal remedy, since Courts of Equity never aid in enforcing a forfeiture.
This objection, If intended as a plea to the jurisdiction, could only be entertained if it had been first made in the Court below, as the 5tli Article of the Code enacts, no defendant to a suit in equity, in which an appeal may be taken, shall make any objection to tbe jurisdiction of the Court below, unless it shall appear by such record that such objection was made in said Court.” Instead of objecting to the jurisdiction in tbe Court below, the respondents, in their answers, concur in the prayer of the bill, that a true construction might be given to the will and the rights of the parties adjudicated.
The general rule, that equity never enforces a forfeiture, has never been applied to cases of conditional limitations, such as the present, where the question is, whether -the proviso operates as a condition subsequent divesting the prior estate, or as a limitation over.
[362]*362It applies to penalties and forfeitures, absolute and certain, upon failure to do some act to be performed, or the-performance of some act prohibited, or the occurrence of some event over which the defendant had no control. Such were the cases in 4 John. Ch. Rep., 431, and 2 Md. Ch. Dec., 510.
If, according to the true construction of the will, the appellee is entitled to the personal and real estate in question, she is entitled to an account of the assetts and rents and profits, and the parties having submitted their rights to the Court below, they cannot be heard now to object to the jurisdiction of the Court in that respect.
Whether an account for rents and profits of real estate would lie before a recovery at law, is not so clear. Mr. Eonblanque asserts, that Courts of Equity will sometimes decree it where the party has not already established hia right at law. 1 Story’s Eq. Jur., 509. The Court below, in this case, considered the question of title exclusively, as auxiliary to the complainant’s right to an account of the personal estate and for the rents and profits of the real estate; the judge distinctly disclaimed any jurisdiction over the possession of the land, remitting the complainant to the Courts of Law for relief in that particular. The leading'authorities upon devises with conditions in restraint of marriage, are cited and reviewed by the Court below, and in our opinion correctly applied.
The appellants contend, that however settled the doctrine-may be in England? a devise to a widow “durante viduitate’ ’ is not established by the decisions in this State; for which they rely on 8 Md. Rep., 511, 524. 9 Md. Rep., 292, 309. Our deduction from those cases is- directly the reverse of that of the appellants.
In the first of those cases, Bannerman vs. Weaver, 8 Md. Rep., 517, the bequest was of personal property with©ut any express limitation over to the children.. The Court [363]*363thought it doubtful whether the limitation to other administrators and guardians was not intended only in case she should depart this life or should get permanently diseased, and as no intent in behalf of the children was expressed, the Court held none was implied, and the condition in restraint of marriage was, under those circumstances, regarded as against the policy of the law. Speaking of the doubtful intent, the language of the Courtis; “Bathe this as it may, it is clear, that the bequest to the wife, during Ufe, loithovl a bequest over in the event of marriage, is not such a bequest as will defeat the life estate, it being against the policy of the law and in restraint of marriage.”
In the case of Waters vs. Tazewell, this Court said : “Although the use to the husband for life is followed by a proviso or condition that he should remain unmarried, yet the gift over is not upon his marriage, but “from and immediately after his decease.” It is not in terms a gift over based upon the event of a second marriage. If allowed to limit or reduce the life estate, it will he giving ‘effect to a provision in reference to personal property, imposing not a partial, hut a general restraint upon marriage by means not of a precedent, but of a subsequent condition, in the absence of any limitation over on a failure to comply with the condition.”
These extracts suScienily show the exception of limitation over, in the event of marriage, was well known and ^recognised.
The validity of a devise of real estate during widowhood, with a devise over to children in the event of marriage, was directly decided by the General Court in 1791, in the case of O’ Neal vs. Ward, 3 H. & McH., 93.
The devise was as follows : “I give and bequeath to my wife, during her widowhood, all my lands, hut in case she should marry, my desire is, that she take one-third only, -and after her decease, I give all my land to he equally [364]*364divided between my three sons ;. and in case any or either of them die without a will or heirs of their bodies, to be equally divided between the survivors. As to- the rest or remaining part of my estate that is not willed, my desire is, that first, my wife take one-third in what she likes and. the other two-thirds to be equally divided among my children.”
The general Court were of opinion, “that by the will, the wife of Joseph Ward took an estate for life in all the lands during her widowhood, and on that evunt (her marriage) she took one-third for life. On her death, his three sons took an estate of inheritance in all the lands. On her marriage, the two-thirds passed, by the residuary clause in the will of Joseph Ward, to her and his children during her life.”
It will be observed, there was in this case no express devise over upon the event of the marriage of the widow, hut a declaration that in that case, she should take one-third only. The, specific devises over were “after her decease.” The residuary clause of the will was made to pass two-thirds of the estate, between the marriage and death of the widow, to her and his children during life.
O' Neal vs. Ward, was decided only three years after Scott vs. Tyler, before Lord Chancellor Thurlow, which has been a leading case in England and America ever since. In that the Lord Chancellor said, “the rule of the civil law in restraint of marriage has suffered much limitation in descending to us. The case of widowhood is altogether excepted by the Novels, and injunctions to keep that state are made lawful conditions.”
This was predicated of personal legacies. “Lands devised, charges upon it, powers to be exerbised over it, money legacies, referring to such charges, money to be laid out in lands, follow the rule of the common law.” 2 Leading Gases in Equity, 155, in mar.
[365]
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Bowie, C. J.,
delivered the opinion of this Court.
This case was carefully considered in the Court below where an elaborate opinion was filed with the decree appealed from, to which we might properly refer' for the law without further comment, but for tbe presentation of some points that have been urged in this Court, and do not appear to have been decided.
Among these, it is insisted, the complainant’s bill being framed on the theory that the estate devised to the widow, has been forfeited by her marriage, the parties Bhould be left to their legal remedy, since Courts of Equity never aid in enforcing a forfeiture.
This objection, If intended as a plea to the jurisdiction, could only be entertained if it had been first made in the Court below, as the 5tli Article of the Code enacts, no defendant to a suit in equity, in which an appeal may be taken, shall make any objection to tbe jurisdiction of the Court below, unless it shall appear by such record that such objection was made in said Court.” Instead of objecting to the jurisdiction in tbe Court below, the respondents, in their answers, concur in the prayer of the bill, that a true construction might be given to the will and the rights of the parties adjudicated.
The general rule, that equity never enforces a forfeiture, has never been applied to cases of conditional limitations, such as the present, where the question is, whether -the proviso operates as a condition subsequent divesting the prior estate, or as a limitation over.
[362]*362It applies to penalties and forfeitures, absolute and certain, upon failure to do some act to be performed, or the-performance of some act prohibited, or the occurrence of some event over which the defendant had no control. Such were the cases in 4 John. Ch. Rep., 431, and 2 Md. Ch. Dec., 510.
If, according to the true construction of the will, the appellee is entitled to the personal and real estate in question, she is entitled to an account of the assetts and rents and profits, and the parties having submitted their rights to the Court below, they cannot be heard now to object to the jurisdiction of the Court in that respect.
Whether an account for rents and profits of real estate would lie before a recovery at law, is not so clear. Mr. Eonblanque asserts, that Courts of Equity will sometimes decree it where the party has not already established hia right at law. 1 Story’s Eq. Jur., 509. The Court below, in this case, considered the question of title exclusively, as auxiliary to the complainant’s right to an account of the personal estate and for the rents and profits of the real estate; the judge distinctly disclaimed any jurisdiction over the possession of the land, remitting the complainant to the Courts of Law for relief in that particular. The leading'authorities upon devises with conditions in restraint of marriage, are cited and reviewed by the Court below, and in our opinion correctly applied.
The appellants contend, that however settled the doctrine-may be in England? a devise to a widow “durante viduitate’ ’ is not established by the decisions in this State; for which they rely on 8 Md. Rep., 511, 524. 9 Md. Rep., 292, 309. Our deduction from those cases is- directly the reverse of that of the appellants.
In the first of those cases, Bannerman vs. Weaver, 8 Md. Rep., 517, the bequest was of personal property with©ut any express limitation over to the children.. The Court [363]*363thought it doubtful whether the limitation to other administrators and guardians was not intended only in case she should depart this life or should get permanently diseased, and as no intent in behalf of the children was expressed, the Court held none was implied, and the condition in restraint of marriage was, under those circumstances, regarded as against the policy of the law. Speaking of the doubtful intent, the language of the Courtis; “Bathe this as it may, it is clear, that the bequest to the wife, during Ufe, loithovl a bequest over in the event of marriage, is not such a bequest as will defeat the life estate, it being against the policy of the law and in restraint of marriage.”
In the case of Waters vs. Tazewell, this Court said : “Although the use to the husband for life is followed by a proviso or condition that he should remain unmarried, yet the gift over is not upon his marriage, but “from and immediately after his decease.” It is not in terms a gift over based upon the event of a second marriage. If allowed to limit or reduce the life estate, it will he giving ‘effect to a provision in reference to personal property, imposing not a partial, hut a general restraint upon marriage by means not of a precedent, but of a subsequent condition, in the absence of any limitation over on a failure to comply with the condition.”
These extracts suScienily show the exception of limitation over, in the event of marriage, was well known and ^recognised.
The validity of a devise of real estate during widowhood, with a devise over to children in the event of marriage, was directly decided by the General Court in 1791, in the case of O’ Neal vs. Ward, 3 H. & McH., 93.
The devise was as follows : “I give and bequeath to my wife, during her widowhood, all my lands, hut in case she should marry, my desire is, that she take one-third only, -and after her decease, I give all my land to he equally [364]*364divided between my three sons ;. and in case any or either of them die without a will or heirs of their bodies, to be equally divided between the survivors. As to- the rest or remaining part of my estate that is not willed, my desire is, that first, my wife take one-third in what she likes and. the other two-thirds to be equally divided among my children.”
The general Court were of opinion, “that by the will, the wife of Joseph Ward took an estate for life in all the lands during her widowhood, and on that evunt (her marriage) she took one-third for life. On her death, his three sons took an estate of inheritance in all the lands. On her marriage, the two-thirds passed, by the residuary clause in the will of Joseph Ward, to her and his children during her life.”
It will be observed, there was in this case no express devise over upon the event of the marriage of the widow, hut a declaration that in that case, she should take one-third only. The, specific devises over were “after her decease.” The residuary clause of the will was made to pass two-thirds of the estate, between the marriage and death of the widow, to her and his children during life.
O' Neal vs. Ward, was decided only three years after Scott vs. Tyler, before Lord Chancellor Thurlow, which has been a leading case in England and America ever since. In that the Lord Chancellor said, “the rule of the civil law in restraint of marriage has suffered much limitation in descending to us. The case of widowhood is altogether excepted by the Novels, and injunctions to keep that state are made lawful conditions.”
This was predicated of personal legacies. “Lands devised, charges upon it, powers to be exerbised over it, money legacies, referring to such charges, money to be laid out in lands, follow the rule of the common law.” 2 Leading Gases in Equity, 155, in mar.
[365]*365As to these, the principle of the common law is thus laid down by Coke and Cruise: If an estate be given to a woman "dum sola fuerit’ or durante viduitate,’ the grantees have an estate for life determinable upon the hap* pening of these events. 1 Just., 42, (a.) Cruise Big., Tit. Estate for Life, ah. 1, seo. 8.
It is too late to inquire whether the reasons upon which restraints upon marriage are deemed contrary to public policy, do not apply as well to widows, as to women who have never married. The general recognition of the exception, shows it is founded in public convenience, as well as adapted to the circumstances of individuals.
The appellants further insist, that if a devise during widowhood, with a limitation over to children, is valid, yet in this case, there is no devise over, notwithstanding the language of the will, since by operation of law, where the devise would take the same estate as the laws of descent or distribution casts upon her, she is in by the latter as the superior title.
This argument, although ingenious, is not conclusive, The devise over, makes the primary bequest or devise valid, because it shows the intent of the testator to make further testamentary dispositions in the event of the first devisee’s marrying again ; and in furtherance of that intent, in regard for the ulterior disposition in favor of the substituted devisee, the law gives it effect. This intent is not less obvious, when the devisee stands in such relation to the testator, that he or she comes in by a superior title notwithstanding the devise, than when the ultimate devise is to a stranger.
Hone can take by the superior title but his next of kin or heirs-at-law, and if the rule of law alluded to, operated to avoid the limitation over to all intents and purposes, the power of devising to a widow, during her widowhood, with a devise over in favor of the children or next of kin [366]*366of the testator, would be measurably, if not entirely taken away.
That a will is not void because it does not always dispose of the property devised, as it purports to do, is shown in the case of Burr & McElfresh vs. Schley, 2 Gill, 181. There the alternative of election was imposed by a will, which purported to devise after acquired lands, beeause it showed the intention of the testator to make such a disposition, and although the will was inoperative “per se,” yet the devisees were required to elect to take what was devised to them, and relinquish all claim to the afteracquired lands, or, if they claimed those lands as heirs, to relinquish their rights as devisees.
The intention of the testator, although not legally effective, as a testamentary disposition, thus controlled the ultimate division of his estate.
Here the intention of the testator in favor of the substituted devisee, converts a devise which would otherwise have been deemed contrary to public policy, into a contingent devise favored by law.
■ The appellant’s last proposition is, that she is at least ■entitled to dower in the lands of which her husband died seized, on the ground that “the appellee having elected to proceed in equity will be compelled to do equity.”
This supposes there is a conflict between law and equity in supporting devises “durante viduitate.” If the policy ■of the law sanctions devises over, in the event of a second marriage by the devisee, there can be nothing inequitable in the prosecution of the rights of the ulterior devisee, at law or in equity.
Under our testamentary system, every devise (unless in ■effect nothing shall pass by such devise,) is construed as intended in bar of dower, and operates as such, if the devisee within the time specified by law, does not renounce all benefit under the will.
[367]*367( Decided February 15th, 1867.)
In the present case, five years elapsed between the death of the testator and the second marriage of his widow. No renunciation is set up or relied on, all the circumstances conflict with the presumption of its existence. She claimed the fee-simple under the will, insisting the conditions of the devise were void.
Having made her election and enjoyed the benefit of the testator’s bounty, she cannot now claim in opposition to the will, "qui smtii commodum debet sentire ei onus.”
Decree affirmed. Costs to be j>aid out of the estate.