Appeal from a decree of the Circuit Court for Allegany County (BOYD, C.J.), dismissing the bill of complaint. The opinion of the Court below was as follows:

This case was brought before me on a demurrer to the bill. Without undertaking to state all the facts alleged in the bill, those that are necessary for the consideration of the question to which the argument was addressed are as follows: Mr. John S. Combs left by his last will and testament a number of pecuniary legacies to various parties, and made the following provision for the plaintiff: "To my nephew, John Semmes Devecmon, five hundred dollars, also the law office in Cumberland, and ground on Washington street in said city, and known as the `Devecmon Law Office,' also all law books in said office." He then left to his wife, who is one of the defendants, certain real and personal property and concluded that paragraph by stating "this devise and bequest to my wife, together with the residuary devise hereafter made to her to be in full of her interest in my entire estate both real and personal." He left his daughter, Althea L. Combs, who is now Mrs. Kuykendall, another defendant, certain real estate and personal property — making certain provisions for the property so left her in the event of her dying without leaving a child or children or of her leaving a child or children who died before they reach twenty-one years of age, which is not necessary for me to refer to more particularly. He then directed his executor to dispose of all his real and personal property not otherwise disposed of "and the proceeds to divide between my wife Wilhelmina J. Combs and daughter Althea Louisa Combs, one-third to my said wife and two-thirds to my said daughter."

The bill also alleges that Mrs. Kuykendall is now in the possession and enjoyment of the property left to her by the will, excepting such as was received by the widow in kind — she having filed her renunciation and elected to take what the law gave her instead of what was left her by the will. Mrs. Combs sued the plaintiff for her share as widow, of the rent of the office property left to plaintiff, and obtained a judgment for $300.00. The bill asks to have the property received by Mrs. Kuykendall under the will placed in the hands of a trustee so that he may hold the same and collect the rents, profits, interest and dividends issuing therefrom until the rent now due and which may hereafter become due the widow is paid.

The theory of the bill briefly stated, is, that inasmuch as Mrs. Kuykendall has taken under the will and the plaintiff has not received the office property free from all claims, as it is contended the testator intended, she must compensate him for the loss, and great stress is laid on the fact that she was the residuary devisee and legatee. Although the plaintiff has filed a very exhaustive brief on the subject of election, I cannot see the application of the authorities cited to the question before me. It may be conceded that Mrs. Kuykendall could not take under the will and at the same time claim an interest in the property left by the will to the plaintiff, but the bill does not charge that she is making any claim for that property or any part of it. In the case of Kuykendall v. Devecmon, 78 Md. 537, the Court of Appeals said Mrs. Kuykendall could not claim the funds in the savings banks as her own, "because if she claims an interest under the will she must give full effect to its provisions as far as she is able," and then states the doctrine on the subject as announced in a former decision of that Court, but that doctrine was applied because she was then claiming property that the testator undertook to dispose of by the will she was claiming under, as to other property.

It could not be successfully contended that if A.B. had instituted an action of ejectment for the specific property left to the plaintiff and had recovered, Mrs. Kuykendall could be compelled to compensate him for it because she was the residuary devisee.

When a testator devises a specific property to a devisee, he gives him all the right, title and interest in that property that he has at the time of his death, but if his title fails, in whole or part, I am not aware of any authority that would authorize the Court to require compensation by the residuary devisee or legatee unless the testator makes such provision in his will. When Mr. Combs made his will, he no doubt assumed that his wife would accept in lieu of her dower and all claim on his estate, what he left to her, but he also knew, or is presumed in law to have known, that she had her election, either to take under the will or renounce it, and take what the law of the State gave a widow. If, therefore, he intended to indemnify the plaintiff against any loss that he might sustain by such renunciation, he should have done so in his will. The opinion of the Court of Appeals in the case of Darrington v. Rogers, 1 Gill, 403, announces the law as applicable in that case in terms that so accord with my views as to what the law must be, that I quote at length from it. DORSEY, J., delivering the opinion of the Court, said: "It is true that the testator had made bequests to his wife out of one of those moieties which he thought would have been sufficient temptation to have prevented her from asserting her legal rights to his estate. But for the event of her doing so, he has provided no change or substitution in the testamentary disposition of his property. And he having failed to do it, we cannot do it for him, the more specially as it would, pro tanto, work a disinheritance of his children and heirs-at-law. The election of the widow to stand upon her legal rights does, it is true, occasion loss to the appellants; but it is a loss resulting by operation of law against which the testator only could have provided an indemnity. The condition of the children, too, was changed by the election of their mother, they might also have sustained loss by receiving less than their father had given, and by his will designated to have given them." It is true the appeal was dismissed in that case, because the statute had not been complied with, but the parties were represented by able counsel, and the question was decided by the Court at their solicitation.

In this case, it is fair to assume that Mrs. Combs received more under the law than she would have done under the will, or otherwise it is not likely she would have renounced. By renouncing, she was not only entitled to dower in the real estate left to the plaintiff, but in that left to Mrs. Kuykendall, and to a third of the personalty. The loss is sustained by the plaintiff by reason of the act of Mrs. Combs — not Mrs. Kuykendall — and upon what principle can the latter be made to compensate the plaintiff for a loss occurring through the act of the former? The interest in the property left to the plaintiff thus acquired by Mrs. Combs, was not added to nor did it in any manner increase the residue left to Mrs. Kuykendall; nor can the fact that the relation of mother and daughter exists between them affect the question. Mrs. Kuykendall has no claim in law to this interest of her mother, and when the latter dies, her interest will cease. If the daughter ultimately receives by gift, will or in course of distribution any property or money, the mother as widow received, she will be receiving her mother's property and not her father's under the will.

No authority has been cited and I know of none that I think would justify me in requiring Mrs. Kuykendall to compensate the plaintiff for the loss sustained by reason of the renunciation of Mrs. Combs, and it will serve no good purpose to further prolong this opinion. I must sustain the demurrer. As the bill asks to have the widow's dower ascertained, it may be that the plaintiff will desire to amend the bill by striking out Mr. and Mrs. Kuykendall as defendants, and making such allegations as may be necessary to have that question disposed of, and I will, therefore, not dismiss the bill but will give the plaintiff thirty days within which to amend.