after stating the facts as above: It is conceded that the will of Henry W. McGehee is void in South Carolina and valid in North Carolina, Virginia and Maryland. The case pivots on whether the plaintiff is entitled to claim under, or required to take against, her husband’s will in North Carolina. In other words, do the facts, properly appearing of record, call for the application of the doctrine of equitable election as between the legacy and a distributive share of the personal property? We think not.
“Election,” in the sense it is used in courts of equity, says Judge Story, “is 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. Every case of election therefore presupposes a plurality of gifts or rights with an intention, express or implied, of the party who has the right to control one or both, that one should be a substitute for the other. The party who is to take has a choice; but he cannot enjoy the benefits of both.” 3 Story’s Eq. (14 ed.) p. 113; Sigmon v. Hawn, 87 N. C., 450. The doctrine of election, as applied to the law of wills, *561simply means that one wbo takes under a will must conform to all of its legal provisions. See Elmore v. Byrd, 180 N. C., p. 120, where the subject is fully discussed, but without undertaking to reconcile the divergent authorities. Indeed, such an undertaking would be a herculean, if not a hopeless, task.
To avoid confusion, the one circumstance which must be held clearly in mind is that the plaintiff took nothing in South Carolina against the will and nothing under it. The testator died intestate as to his personal property, and therefore without testamentary intent as to its disposition. The situs of such property is at the domicile of the ownep, hence its name. Mobilia sequuntur personam. Trust Co. v. Doughton, 187 N. C., p. 272. The will is void in South Carolina, the domiciliary State. Title to the personal property was vested in the distributees under the South Carolina laWj and not by virtue of the will. The plaintiff had no alternative as to the personal property. She could not take her distributive share of it under the will, when the will failed to dispose of any of the personal property. She could only claim it under the law, or decline to take it. And upon her refusal to accept her distributive share of the personal property, what would become of it ? There is no will by which it may be given to others. “What the testator has left undisposed of the law must dispose of for him”—Gaston, J., in Ford v. Whedbee, 21 N. C., p. 21.
The defendants do not contend that the plaintiff is required to elect between her legacy and an escheat. They only say that, if she claim her legacy under the will to the prejudice of Henry Richard McGehee, so much of the property received by her from her husband’s estate should be sequestered in equity and surrendered to the disappointed devisee or legatee so as to compensate him for the disappointment. Dunshee v. Dunshee, 263 Ill., p. 196; Bispham Eq. (9 ed.), 499; Eaton’s Equity 182.
It is not strictly the doctrine of election, for which the defendants contend so much, as it is the principle of equitable compensation sometimes engrafted upon this primary doctrine of election. Ker v. Wauchope, 1 Bligh, 25. The principle sought to be evoked by the defendants was stated by Sir Thomas Plummer, M. R., in Gretton v. Howard, 1 Swanst., 409, as follows: “I conceive it to be the universal doctrine that the court possesses power to separate the estate till satisfaction has been made, not permitting it to devolve in the customary course. Out of that sequestered estate so much is taken as is required to indemnify the disappointed devisee. If insufficient, it is left in his hands. In the case to which I have referred, Lord Loughberry uses the expression that the court ‘lays hold of what is devised, and makes compensation out of that *562to tbe disappointed party.’ ... It would be too much now to dispute this principle, established more than a century, merely on the ground of difficulty in reducing it to practice, and disposing of the estate taken from the heir at law without any will to guide it; for to this purpose there is no will. The will destined to the devisee not this estate, but another. He takes by the act of the court (an act truly-described as a strong operation) not by descent, not by devise, but by decree — a creature of equity.”
Conceding the soundness of the doctrine of compensation, it is thought to be inapplicable except in cases calling for an election, for election is the basis upon which it rests.
It may be stated as settled by the weight of authority, both in England and in this country, that where a will is valid as a disposition of personal property, but invalid as a devise of real estate, because of an insufficient number of witnesses, the heir to whom a legacy is given in lieu of his interest in the testator’s real estate, will not be put to his election, and he may take the personalty under the will and his share of the realty as heir, unless the bequest of the personalty be upon an express, but not implied, condition that he relinquish his right in the realty as heir, in which event the condition will be enforced and he will be required to elect. Thellusson v. Woodford, 13 Ves., 209; Breckinbridge v. Ingram, 2 Ves. Jr., 652; Sheddon v. Goodrich, 8 Ves. Jr., 482; Boughton v. Boughton, 2 Ves. Sr., 12; Whistle v. Webster, 2 Ves. Jr., 367. These cases have been recognized and followed in this and other American jurisdictions. Melchor v. Burger, 21 N. C., 634; Kearney v. Macomb, 16 N. J. Eq., 189; Jones v. Jones, 8 Gill., 197; McElfresh v. Schley, 1 Gill., 181; Hand v. Hand, 60 N. J. Eq., 518.
Speaking to the subject in the case of Hearle v. Greenbank, 1 Ves. Sr., 307, Lord Hardwicke said: “The infant is not obliged to make her election; for here the will is void. And when the obligation arises from the insufficiency of the execution or invalidity of .the will,' there is no case, where the legatee is obliged to make an election,' (Aliter if there be an express condition not to dispute the will. Boughton v. Boughton, 2 Ves. Sen., 12); for here is no will of the land. A man devises a legacy out of land to his heir at law; and the land to another : the will is not well executed according to the statute of frauds for the real estate; the court would not oblige the heir at law, upon accepting the legacy, to give up the land.” And, further, as reported in 3 Atkyns, 715: “It is like the case where a man executes a will in the presence of two witnesses only, and devises his real estate from his heir at law, and the personal estate to the heir at law; this is a good will as to personal estate, yet for want of being executed according to the statute of frauds and perjuries, is bad as to the real estate; and I should in that *563case be of opinion that the devisee of the real estate could not compel the heir at law to make good the devise of the real estate, before he could entitle him to his personal legacy, because here is no will of real estate for want of proper forms and ceremonies required by the statute.”
The principle to be deduced from the foregoing cases is, that the heir or widow of the testator claiming a legacy under the will, and also claiming real estate as heir or dower as widow against the will, the will being inoperative as to real estate by reason of a defective execution, the heir or widow will not be put to an election, but will take both the legacy and the land. In such cases “the heir is allowed to disappoint the testator’s attempted disposition by claiming the estate in virtue of his title by descent, and at the same time take his legacy on the ground that the want of a due execution precludes all judicial recognition of the fact of the testator having intended to devise freehold estates; and therefore the will cannot be read as a disposition of such estates for the purpose even of raising a case of election as against the heir.” 1 Jarman on Wills (Ed. 1849), 389.
We need not pause to inquire why an express condition should prevail, and one, however clearly implied, should not, except to say that, according to the decided cases, a disposition absolutely void is held to be no disposition at all, and being incapable of operating as such, it is not allowed to be considered as establishing the testator’s intent, while an express condition is to be enforced where it enters into and really forms the basis for the gift or devise. This distinction between express and implied conditions may be shadowy and more or less unsatisfactory, nevertheless it has been made and, as said by Lord Eldon in Sheldon v. Goodrich: “It were better the law should be certain, than that every judge should speculate upon improvement in it.” Eor a valuable discussion of the whole subject of election, see 2 Roper on Legacies, pp. 376-450.
In the instant case, we havei a will valid and enforceable against the testator’s real estate, but void as a disposition of his personal property — • just the reverse of the rule stated above, controlled, however, by the same principle of law, and there is no express condition annexed to the bequest to the plaintiff, calling for such an election on her part as contended for by the defendants. The election which the plaintiff is required to make is whether she will take her legacy under the will, or dissent from the will and claim her dower in the real estate.
Defendants in their brief cite several cases from other jurisdictions which, in tendency at least, seem to support their view of the law, but we think our own decisions are otherwise, as above indicated. Tucker v. Tucker, 40 N. C., 82; Robbins v. Windly, 56 N. C., 286; Bost v. Bost, 56 N. C., 484.
*564Speaking directly to the question in Melchor v. Burger, 21 N. C., 634, Gaston, J., said: “It has, however, been settled in England, at least as early as 1749, that a devise of freehold by one not having legal capacity to devise lands, or not executed according to the solemnities required by law in devises of lands, contained in a will valid as one'of personalty, did not impose on the heir disputing its validity an obligation to elect between his rights as heir, and the personal benefits bequeathed by the will. Hearle v. Greenbank, 1 Ves. Sen., 306; 3 Atk., 695; Carey v. Askew, 8 Ves., 492; 1 Cox, 241; Goodrich v. Sheddon, 8 Ves., 481; Thellusson v. Woodford, 13 Ves., 209. This modification of the general doctrine is founded upon the principle that the attempted devise affords no legal evidence of an intention in the testator to devise; or in the language of Lord Erslcine, ‘a devise of real estate was considered a matter of so much solemnity and importance that the law would accept no proof of the' act, except what is required for the validity of the act.’ 13 Ves. Jun., 223: The intention not being before the Court, the estate did not appear to have been devised away from the heir, and the will must be read by the Court, as if such devise was not in it. Eminent judges have indeed expressed dissatisfaction with this reasoning, and have thought, that however ineffectual the attempt to devise, the Court might regard the attempt as indicating an intention to devise, which had failed to have legal effect, as clearly as in the ease where the devisor attempts through mistake to devise an estate which belongs to another person. However this may be, the rule is there settled as a rule of property; and if no more appears than a devise from the heir, and a bequest of personalty to him, in a will sufficiently executed to pass personal, but not sufficiently executed to pass real estate, it is a good will of the personalty; it is no will as to the lands; there is no implied condition of election; and the heir may keep the lands descended, and also take his legacy.”
In the will before us there is no condition annexed to the plaintiff’s legacy that she surrender all her rights to the testator’s property, both real and personal, before taking same, but the bequest to her is “in lieu of her dower rights in my estate.” Strictly speaking, “dower rights” are only such rights as a widow may have in her husband’s real estate, and in legal parlance this phrase would not include her claim to a distributive share of the personal property belonging to his estate. Corporation Commission v. Dunn, 174 N. C., 679. Dower, under oUr statute, is the life estate to which every married woman is entitled, upon the death of her husband intestate, or in case she shall dissent’from his-will, to o-ne-third in value of a,11 the lands, tenements and hereditaments, both legal and equitable, of which her husband was beneficially seized, in *565law or in fact, at any time during coverture, and which, her issue, had she had any, might have inherited as heir to the husband. Chemical Co. v. Walston, 187 N. C., p. 823.
It cannot be known judicially that the result we have reached is at variance with the intention of the testator, for to hold otherwise would be to give effect to that which the South Carolina law says is void. It is not the testator’s will, but the requirements of the law of a sister State, at which the defendants complain.. Just here, we are unable to help them. Then, too, how do we know the testator did not- intend to execute his will exactly as he did? He was a man of education and learning, being an alumnus of Trinity College, this State. We have given effect to the testimentary disposition of his property in so far as it is valid. To do otherwise would be to make a will for him, different from the one he has left; to’ override the law of wills, and to substitute our own judgment as to what should be done with the testator’s property. This is not the function of a court of equity.
If it be thought the case is a hard one, it should be remembered that “hard cases are the quicksands of the law”; and in -viewing the apparent hardships of a case, we have been enjoined, by a number of learned judges, not to overlook the law. Leak v. Armfield, 187 N. C., p. 628; Cureton v. Moore, 55 N. C., 207; Lea v. Johnson, 31 N. C., 19.
It follows from what is said above that there was error in the judgment rendered below.
Error.