Dickinson, J.
In determining the rights of the widow of the testator in lands in Minnesota, which he by will devised to others, we shall have occasion to consider the statute controlling the descent of real property in this state; whether this statutory law of descent is-subject tobe affected by the equitable doctrine of election, as between an estate conferred by the law and provision made by will in lieu of such estate; whether this case is one to which this doctrine is applicable; and whether an effectual election has been exercised on the part of the widow, of a nature to bar her statutory right.
Although the testator, at the time of his death, had his domicile in the state of Wisconsin, where the will was executed, and where the •widow still is domiciled, we refer to the law of our own state for the rule of descent of lands situated here. It is an established principle of the law that real estate is exclusively subject to the laws of the government within whose territory it is situated. This governmental power of the state is a necessary incident of the sovereignty which every nation exercises within its own borders. Story, Conflict of Laws, § 428; U. S. v. Fox, 94 U. S. 315.
Prior to 1S75 the law of dower prevailed in this state substantially as at common law. In that year, by an act entitled “An act to abol[348]*348ish estatesin dower and by the curtesy, and provide for estates of inheritance or otherwise, in lieu thereof,” (Laws 1875, c. 40,) estates in dower, not then consummate, were abolished. By that law it was enacted, after making certain provisions respecting the homestead, that “such surviving husband or widow shall also be entitled to and shall hold in fee-simple, or by such inferior tenure as the deceased was •seized or iiossessed thereof, one undivided one-third of all other lands •of which the deceased died seized or possessed, free from any testamentary disposition thereof to which such survivor shall not have assented in writing. * * *” This was somewhat modified in 1876 ■by an act prescribing a general rule of descent of real property, (Laws 1876, c. 37, § 3; Gen. St. 1878, c. 46, § 3,) in which it was enacted that “such surviving husband or wife shall also be entitled to and ■shall hold in fee-simple, or by such inferior tenure as the deceased was at any time during coverture seized or possessed thereof, one -equal undivided one-third of all other lands” (provision having been previously made respecting certain rights in the homestead) “of which the deceased was at any time during coverture seized or possessed, free from any testamentary or other disposition thereof to which such survivor shall not have assented in writing.” There is no statutory limitation, other than that arising by force of these statutes, upon the power of the testator to devise all of his lands, which has any application to this case. On the contrary, the general right to devise is expressly declared by statute. Gen. St. 1878, c: 47, § 1. It is -clear, from the provisions of the act of 1875, and is also expressed in its title, that the larger estate thereby created was intended as a substitute for the estates of dower and curtesy; the purpose plainly being to provide, in favor of the surviving spouse, an inheritable estate in fee, in place of the life estate which was then abolished. The act -of 1876, which was a general statute of descent, was made to include this already established rule of property, with some changes in effect •amending its provisions. ■ Under this statute no testamentary de-{ vise of lands within this state, not assented to in writing by the wife or widow of the testator, could, of its own force, interrupt the descent •of an undivided one-third of the estate to her, in case she survived her husband, or deprive her of the legal right to receive and enjoy [349]*349such statutory estate. Nor had the devise of these lands, made by this will, the effect to devest the widow of such legal estate.
It does not follow, however, that the widow may not have been barred of her estate in the lands, or estopped from asserting it, upon »,principles of equity jurisprudence, by her own act of election under the will, or by that made for her by a court having jurisdiction to-make an election in her behalf. To construe the statute as excluding the application and operation of such general principles of the unwritten law as have long been recognized and applied under similar circumstances, would give to it an effect not indicated by its terms, and such as is not warranted by principles of statutory construction. Statutes are enacted with regard to the already established state of the law, with regard to the existing principles of the common law and of equitable jurisprudence, and should be so construed as to harmonize with the existing body of law, unless the intention to change or repeal it is apparent. Blackman v. Wheaton, 13 Minn. 299, (326;) 1 Pom. Eq. Jur. § 279. There is nothing in the act above referred, to expressing an intention that the estate thereby created should be withdrawn from the jurisdiction of equity, nor that it should be exempt from the operation of the ordinary principles of justice as-administered in courts of equity. This statutory right is not more absolutely bestowed upon the wife as an inchoate estate, to become consummate and vested upon the death of the husband, than was the-former estate of dower, for which it is substituted. Yet that the right, of dower may become barred upon equitable principles, is not doubtful. This statutory right is not more perfect than is a vested estate in fee at common law. Yet it is certain that such a title may devolve upon another, through the principle of estoppel, notwithstanding statutes which declare that conveyances shall be only by deed. The same policy which led to the creation of the estate of dower, and,, that it might be effectually secured to the widow, restrained the power of the husband to transfer his title, so as to devest her of it, rendered it exjjedient that in this statute, creating the substituted estate of inheritance, a similar restraint should be imposed upon the power of alienation, such as is expressed in the words “free from any testamentary or other disposition to which such survivor shall not have. [350]*350assented in writing.” But the implied restraint is directed to the acts of the testator, and not to those of the widow or heir; and neither in the character of the estate conferred, nor in the terms of the act, do we find anything to support the claim that the right to enjoy that estate may not be barred or forfeited by the act of the party in whose favor it is created, or that the equitable doctrine of election is not applicable here, as it was applied in respect to estates of dower, and as it has also been applied in respect to estates of inheritance.
"We proceed, then, to consider such of the principles of that doctrine as affect its application to this case. The principle of election, considered with reference to cases like that before us, is, in general terms, defined to be “the obligation imposed upon a party to choose between two inconsistent or alternative rights or claims, in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both.” 2 Story, Bq. Jur. § 1075. As stated by Mr. Bispham, (Princip. Eq. § 295,) it is “a choice which a party is compelled to make between the acceptance of a benefit under an instrument and the retention of some property, already his own, which is attempted to be disposed of in favor of a third party by virtue of the same instrument.”
In Thellusson v. Woodford, 13 Ves. 209, Lord Chancellor Erskine thus states the doctrine: (220,) “A person shall not claim an interest under an instrument without giving full effect to that instrument, as far as he can. If, therefore, a testator, intending to dispose of his property, and making all his arrangements under the impression that he has the power to dispose of all that is the subject of his will, mixes in his disposition property that belongs to another person, or property as to which another person has a right to. defeat his disposition, giving to that person an interest by his will, that person shall not be permitted to defeat the disposition where it is in his power, and yet take under the will. The reason is, the implied condition that he shall not take both; and the consequence follows that there must be an election. * * * (224,) The principle of election is plain and intelligible — that if a person, being about to dispose of his own property, includes in his disposition, either from mistake or not, property of another, an implication arises that the benefit under the will shall [351]*351be taken upon the terms of giving effect to the whole disposition.”
The ground upon which the doctrine rests is to be found in the intention of the author of the instrument of donation, — “an intention which, extending to the whole disposition, is frustrated by the failure of •any part. * * * The intention being assumed, the conscience of the donee is affected by the condition, (although it is destitute of legal validity,) not express, but implied, which is annexed to the benefit proposed to him. For the donee to accept the benefit, while he declines the burden, is to defraud the design of the donor.” 2 Story, Eq. Jur. § 1077. See note to Dillon v. Parker, 1 Swanst. 359.
The case usually stated to illustrate the rule is that of a testator conveying to A by will certain property, real or personal, and in the same instrument giving to a third party certain property belonging to A — it may be real or personal. In this case A must elect whether he will retain his own property, or take that given him by the will. In the latter event he will be held to confirm the gift of his own property to the third party.
No principle is more thoroughly incorporated in the jurisprudence of England and America than is this doctrine of election, and none is more uniformly applied in cases deemed to come within the scope of it. Noys v. Mordaunt, 2 Vern. 581; Streatfield v. Streatfield, Cas. t. Talb. 176; Whistler v. Webster, 2 Ves. Jr. 367; Thellusson v. Woodford, 13 Ves. 209, (affirmed in house of lords, 1 Dow. 249;) Birmingham v. Kirwan, 2 Schoales & L. (Ir. Ch.) 444; Cooper v. Cooper, L. R. 6 Ch. App. 15; Herbert v. Wren, 7 Cranch, 370; Tobias v. Ketchum, 32 N. Y. 319; McElfresh v. Schley, 2 Gill, 181; Brown v. Pitney, 39 Ill. 468; Wilbanks v. Wilbanks, 18 Ill. 17; Pemberton v. Pemberton, 29 Mo. 408; Morrison v. Bowman, 29 Cal. 337; Norris v. Clark, 10 N. J. Eq. 51; Cauffman v. Cauffman, 17 Serg. & R. 16; Hyde v. Baldwin, 17 Pick. 303; Watson v. Watson, 128 Mass. 152; Holt v. Rice, 54 N. H. 398, 402; Van Steenwyck v. Washburn, 59 Wis. 483.
The occasion for the enforcement of the rule most frequently arises in the administration of estates under wills, and particularly in eases involving a claim of dower, where the obligation is upon the widow to elect as between her dower in lands devised by her husband and .some provision made in her behalf by the will, in case it clearly ap[352]*352pears that she cannot take both the testamentary provision and her dower without violating the intention of the testator. See cases above cited. It has not, however, been confined to wills, but applies as well to deeds and other instruments.
We think that the authorities with substantial unanimity go to sustain the proposition that a case for an election arises when there is, first, an intention of a donor or grantor, clearly and unequivocally expressed in the instrument of donation or grant, to dispose of that which belongs to another, and over which he has no disposing power as against such owner; second, a donation by the same instrument to that person of something to which he otherwise has no right; unless, perhaps, in case the attempted disposition of the property of the donee is inoperative and void for some other reason than the defect of title in the donor. Whenever these conditions are recognized as existing, the duty of election seems to have been almost uniformly asserted.
But it is upon what is claimed to be a qualification or limitation of the rule, rather than upon a denial of the existence of this general doctrine, that the appellant chiefly relies. It is claimed that this is not a case for an election, because the testator was incapacitated from devising the estate, as to the wife’s one-third, and because the devise was hence void. This position cannot be sustained without either enlarging the modification of the general doctrine beyond what has hitherto been recognized as its limit, or giving undue effect to the restraint upon the husband’s power of alienation which is implied from the nature of the estate provided by the statute for the widow. We-have already suggested a possible limitation of the general doctrine. It was long ago decided in England that where the instrument by which the donor assumed to dispose of the property of the donee was. of no legal validity, because of the want of capacity on the part of the donor to execute such an instrument — as in the case of his infancy- — no case for an election arose, (Hearle v. Greenbank, 1 Ves. Sr. 298;) and the same result was declared where the instrument was so defectively executed as to be without legal effect. Sheddon v. Goodrich, 8 Ves. 481. Similar qualifications have been applied in this country, (Jones v. Jones, 8 Gill, 197; Melchor v. Burger, 1 Dev. & B. [353]*353Eq. 634; Lefevre v. Lefevre, 59 N. Y. 434; Kearney v. Macomb, 16 N. J. Eq. 189;) although in both countries there have been expressed doubts as to the propriety of the distinction between such cases and those which are subject to the general rule. The reason upon which this class of cases rests seems to be that the retaining by the donee of the subject of the attempted transfer does not disappoint the instrument, since the law has already avoided and nullified it. There may, perhaps, be added, as being within the exception or limitation, cases where the effect of the transfer, if held effectual, would be to violate some established rule of public policy, such as a statute against perpetuities; in which cases the court would not aid the attempt by enforcing the doctrine of election. Woolaston v. King, L. R. 8 Eq. Cas. 165, 175, Whatever may be the extent of this limitation, it does not go so far as to include eases where the invalidity of the attempted transfer arose from want of title in the donor, or from the existence of an estate in the property in the donee, and over which the donor had, hence, no disposing power. Indeed, that is just the class of cases in which the rule has been applied. As was said in Thellusson v. Woodford, supra: “That is the circumstance that creates election.”
This case falls within the general rule. There is no invalidity in the execution of the will, nor in the personal capacity of the testator to make a devise of property. The will would effect of itself a valid disposition of the lands, except for the estate therein conferred by statute upon the wife. It is only because of her title in the property that his disposing power is qualified. Only as her rights in the property stand in the way is the husband prevented from devising it. He may devise the whole estate, and, unless she shall survive him, the devise of the whole is effectual. The devise of the whole estate, unaffected by any act on her part, is in legal effect subject to her statutory right, and does not contravene a policy of the state, so as to be, for that reason, illegal or void. And, even if she survives him, she is not compelled to become endowed with the title; she may relinquish her right, or, even after it is vested by his death, she may bar herself of it, and no rule of public policy is violated. The case, in brief, is the ordinary one of a testator giving by will that to which [354]*354the donee had no right except by the will, and by the same instrument disposing of lands which he had not the power to transfer, because of the title therein in the donee. The doctrine of election is applicable if the will is to be construed as making provision for the widow in lieu of her legal estate, and not merely as cumulative thereto, so that the intention of the testator is apparent that she shall not enjoy both.
We do not wish to be understood, from any form of expression which we have employed, as holding that the widow must make an affirmative election to take her statutory estate before she will be entitled to its enjoyment. It is probable that in this state, in the absence of any election, she would be endowed of what the statute confers upon her, and would be entitled to the testamentary benefit only by an election to take it, or by some act equivalent to such an election. The question here is whether she is to be deemed to have so elected.
The power of the courts of Wisconsin to exercise an election in behalf of the appellant is not a matter of doubt, assuming that none had been first made elsewhere. The only question presented in this connection is as to the scope and effect of that election. So, too, our probate court, which had to administer upon real property here, had from necessity, and as incident to the exercise of its jurisdiction concerning the property, the power to make an election in behalf of the widow, provided none had already been made. State v. Ueland, 30 Minn. 277. And it is claimed by the appellant that the election of the probate court, being first made and having reference to these lands, should control. The judicial proceedings which resulted in an election being made for the widow were instituted in the circuit court of Wisconsin by the executors prior to the commencement of this proceeding in the probate court of this state. Judgment was first rendered by our probate court, and an appeal taken to the district court, upon questions of fact and laxo, and a trial had de novo in that court, as contemplated by the statute in such cases. Gen. St. 1878, c. 49, §§ 15, 17. While that appeal was pending, and before the trial in the district court, the Wisconsin suit had been determined by the court of last resort, upon appeal from the circuit court, and its decis[355]*355ion made, (Van Steenwyck v. Washburn, 59 Wis. 483) by which, reversing that of the circuit court, the will was construed as expressing the intention of the testator that the specific provision made in her behalf should be in lieu of her legal rights in the property, and, an election being therefore necessary, that court, exercising its jurisdiction in her behalf, decreed that she take under the will. Upon the trial subsequently had in our district court, these facts were shown by supplemental pleadings and by proof. The question now arises whether, upon that trial, which is here in review, the election made by the probate court was final. Did it conclude the parties in the subsequent retrial of the same cause ? Was the subject res acljuclieata?
The election made by the probate court was a determination in a judicial proceeding, and, like other judicial determinations, was subject to be affected by the course of the procedure. In whatever manner the appeal to the district court affected the judgment appealed from, it had the same effect as to the election, -which was an essential part of that judgment. By the appeal upon questions of both law and fact, the cause became Us penclens in the district court. Fallman v. Gilman, 1 Minn. 153, (179;) Bryan v. Farnsworth, 19 Minn. 198, (239.) It was to be tried de novo, and such a decision rendered upon all of the questions involved, including that of election, as the justice of the case, as presented upon that trial, should require, uncontrolled by the decision appealed from. In such a case the judgment appealed from could not have effect as a final adjudication, concluding inquiry, and forbidding a contrary determination as to 'the matters in issue. That would be opposed to and defeat the very ■purpose for which a trial de novo is allowed by the statute. The maxims, nemo debet bis vexari pro una et eadem causa, and interest reipublicce ut sit finis litium, which express, upon considerations of individual right and of public interest, the reasons of the doctrine of res adjiulicata, have no possible application in such a case. Upon the trial, then, of this cause in the district court, the question of what ■election should be made in behalf of the widow was to be determined in the same manner as though no election had been made by the probate court. The only election by which the determination in this •case could be affected was that which had then been finally made by [356]*356the supreme court of Wisconsin. Capehart v. Van Campen, 10 Minn. 127, (158;) Curtiss v. Beardsley, 15 Conn. 518, 521; Bank of North America v. Wheeler, 28 Conn. 433, 440.
Was the election in Wisconsin such as precluded a different election being made in another jurisdiction, and in respect to real property there situate, and hence beyond the jurisdiction of the courts of Wisconsin? The appellant contends that that election in Wisconsin was limited to a choice merely between the provisions of the will and. dower in lands within that state, and that it has no effect and can have none as to lands in this state. An election by a court in behalf of its insane ward must stand for and be considered as the election of the party himself. Whether made by a party in person, or by a court having authority to act in his stead, the result must be the same. Once effectually made, and the thing chosen having been thus acquired, it cannot be that whatever stands over against that thing as the other alternative is still subject to his will. If, in the-course of administration in the state where the will was executed, and where the testator was domiciled at the time of his death, the widow, being sane, had declared her election to take under the wall, there can be no doubt that that election would have concluded her everywhere. Ordinarily, and in this case, there are but two alternatives presented for election: one,' the bounty offered by the terms of the will; the other, that to which the widow is entitled as a legal right, independent of the will, wherever it may be found and by whatever law it may be conferred. The testator proposes for her choice but the two alternatives. In fact, he, presumably knowing her absolute legal right respecting his property, proposes but one thing; that is, the benefit specially provided in the will. Assuming that she may accept it, he, in this case, disposes of his other property, at home and abroad alike, as though she had no interest therein. The testator-offers her simply certain testamentary benefits. The law (of Wisconsin and Minnesota, and wherever else real property may be situated) offers her estates in lands, in dower and in fee. If she accepts his-offer she relinquishes her legal right in all his lands.
It is true that the supreme court of Wisconsin did not assume jurisdiction over lands in Minnesota. But it did rightfully exercise-[357]*357jurisdiction to do what its ward, if sane, might have done; it elected, in her behalf, to take the bounty which the testator offered. This choice determines the whole subject. It commits her to an acceptance of the will, and she cannot also take against the will either in that state or in this.
We have thus far assumed that the will discloses the intention of the testator that the provision specially made for the wife should be in lieu of her legal rights in the property and not cumulative, and that the instrument is to be so construed. That this is the proper construction and effect of the will was adjudicated between the parties contending here by the judgment of the supreme court of Wisconsin, above cited. It is well understood that, under the federal constitution, the doctrine of res acljuclicata applies with respect to the judgments of other states of the Union, as it does with respect to domestic judgments. Cone v. Hooper, 18 Minn. 476, (531.) So long as the court of a sister state acts within the scope of its own authority, within its jurisdiction, the same conclusive effect attaches to its judgments when the subject-matter is afterwards brought in issue between the same parties, in whatever state it may be. Of course, the principle of state sovereignty to which we have already referred, forbids that the tribunals of one state should assume to affect directly by their judgments the title to lands within another state. But this is only a denial, in another form, of the jurisdiction of the former tribunal to .so adjudicate. The real question in all cases seems to be one of jurisdiction, and we think it is impossible for us to admit that the Wisconsin court had jurisdiction to adjudicate as to the true construction of this will, and at the same time deny the conclusive effect of its judgment between the same parties in this action.
That the Wisconsin court had jurisdiction to enter,tain the question of the construction to be put upon the will, and to adjudicate thereon, is apparent and need not be discussed. It is equally apparent that that adjudication was final, and concluded the parties to that controversy, which embraced all the parties interested. Neither this appellant nor these respondents would have been heard in that state to -question the correctness of the construction of the will thus judicially -declared. We feel no doubt that the same conclusive effect should be [358]*358attributed to that judgment here and in this case, which involves the same question and is between the same parties. The adjudication was neither beyond the jurisdiction of the foreign court, nor did it interfere with our state sovereignty. The disposition of the lands in this state, and in the course of administration here, is effected, not by force of the decree of the foreign court, but by force of our own laws and by the decrees of our own courts. Our law recognizes a final adjudication upon the merits and between the proper parties, determining the true import of such an instrument, as concluding the parties to the controversy, whether that adjudication was in a domestic tribunal of competent jurisdiction, or in a tribunal of another state having jurisdiction. In giving effect to such an adjudication we are enforcing our own laws and not the laws of another state.
Our conclusion is that the judgment of the district court should be affirmed. Ordered accordingly.