Bush v. Bush

10 Del. 245

• Court: Supreme Court of Delaware
• Decided: June 5, 1877
• Status: Published

Opinion

Comegys, Chief Justice:

This is the first time, so far as we have any knowledge, that the question whether a widow is dowable of a remainder has been raised in this State. • The question has been made by the learned counsel for the widow of George Bush, and has been argued by him with ability and ingenuity, and he asks this court, with a confidence showing his own belief in her right, that we should reverse the decision made against her by the chancellor and sustain this appeal taken by her from it. Having respect only to all the knowledge we had acquired, as students of the law and afterward in our practice at the bar, we should have said unhesitatingly, if the question had been presented for us, without argument made or authority cited, that the decree of the chancellor ought to be sustained. But we felt ourselves required to lay aside, so far as we might, all previous opinions upon the subject, and consider it as one with respect to which we had no impressions whatever. This seemed to us, in justice to the case, as presented by the appellant’s counsel, to be the proper course.

Samuel Bush, by his will, dated the 4th day of November, A. D. 1829, and duly proved and allowed by the (then) register of New Castle County, devised, inter alla, as follows:

“ Item.—I give, devise, and bequeath unto my son, David Bush, his executors and administrators, the following real and personal property, to be held by him and them in trust during the natural life of my beloved daughter, Rebecca, the wife of Frederick Leonard, Esq., to wit: my house and lot, etc., etc. (here describing the property), and it is my mind and will that the said trustee, his executors and administrators, after deducting thereout the necessary moneys for repairs and taxes, pay over regularly and half yearly for the sole and separate use of my said daughter, Rebecca Leonard, during her natural life as a femme sole, without any control of or, by her said husband, Frederick Leonard, or the creditors of the said Frederick Leonard, the rents, interest, issues, profits, and incomes of the said real and personal estates so devised and bequeathed in trust as aforesaid, and that my said daughter, Rebecca’s, receipts signed by her shall be full discharges therefor. And I do give, devise, and bequeath unto the lawful issues of my said daughter, Rebecca, that shall be living at her decease, all the said real and personal estate so given, devised, and bequeathed as aforesaid in trust for the separate benefit of her, my said daughter, Rebecca, during her natural life, the real estate in fee simple and principal of personal absolutely; but if my said daughter, Rebecca, shall die without issue to survive her, then and in such case it is my will that all said real and personal estates so devised and bequeathed for the sole benefit of my said daughter, Rebecca, during her natural life, shall go to my two sons,' David Bush and George Bush, and upon such event I do give, devise, and bequeath the same to them, my two said sons, David and George, their heirs and assigns, forever.”

It is not disputable that by the above clause in the will of Samuel Bush there was devised by the testator to his daughter, Rebecca Leonard, a trust estate for life, with a legal contingent remainder in fee simple to any issue she might leave to survive her, and a further remainder in fee, contingent upon the event of her dying and not leaving issue to survive her, to George Bush, the husband of the appellant, and his brother David Bush. It appears, as a fact in the case, that the appellant’s husband died in the lifetime of his sister, Mrs. Leonard, the cestui que trust, and that she afterward died also without ever having had any issue. The contingency therefore happened upon which the remainder to George Bush, the appellant’s husband, and his brother, David Bush, was to take effect in possession ; and it did take effect by then vesting in David Bush, living at her death, and in the heirs-at-law of George Bush, who died intestate.

By the law of the land contingent remainders are descendible to the heirs-at-law of those who own them; and therefore, in this case, the heirs-at-law of the appellant’s husband, George Bush, became entitled, upon the death of their father intestate, to one equal undivided half part of the premises devised by the testator in the above clause of his will. We are thus brought to the consideration and decision of the question whether or no, by the law of this State, a widow is dowable of an estate of inheritance of which her husband never had any possession nor the right to any; in the case before us it was a contingent remainder that belonged to him. And we may say that for this question there is, in our opinion, no distinction between a vested remainder in fee simple with an intervening freehold estate outstanding, and a contingent remainder in fee simple. Both, with respect to the question before us, are alike.

What is the law of this State with respect to the right of a widow to any part of her husband’s estate of inheritance in lands? The act of the 16th of February, 1816, entitled “ An Act respecting devises of lands, joint estates, and dower,” commonly called the dower act, to distinguish it from the intestate law is, in brief, this—that a widow who has not relinquished her right to dower by some valid instrument, shall, for the term of her life, have one-third part of all the lands of which her husband was seized of an estate of inheritance at any time during their marriage, free from any alienations, covenants, debts, liens, and incumbrances made, entered into, contracted, or created by him, since the passage of said act. This was dower at the common law, except that by such law no alienations, covenants, debts, liens, or incumbrances, made, entered into, contracted, or created by the husband at any time after the intermarriage, could affect the wife’s right. The common law was therefore more liberal to the widow than the statute of 1816. It cannot be doubted, we think, and we are supported in so concluding by the case of Layton v. Butler, 4 Harr. 507, that the design of the statute of 1816 was to enact the common law in this State, subject to its non-application where the acts of the husband mentioned in it had taken place before its passage. To our minds it is very clear that in this case the appellant can make no claim whatever to dower under that statute—her husband having died before his sister, Mrs. Leonard, the cestui que trust for life, the remainder, limited to him and his brother upon the contingency of her dying without issue to survive her, never vested in possession in him, and of it, therefore, he cannot, with any propriety, be said to have been seized. For seizin, as contemplated by that act, means either the actual possession of freehold property with a title to it of an inheritable nature then vested, or a right by virtue of such title to have such possession immediately. Of course, the appellant’s husband had no possession in his lifetime of his remainder, and he had no right to such possession, for the freehold estate was outstanding in those who, under the will of Samuel Bush, were entitled to it. So that on no account could the appellant assert a claim to dower under the act of 1816. This would seem to be very plain, in fact, her counsel does not rest her claim upon such ground, but contends that by the language and the true meaning of the intestate law of this State, Revised Code of 1874:,page 514, and according to equity she is entitled to have invested for her benefit one-third part of the proceeds of the sale of one-half part of the lands in which her husband and his aforesaid brother had a contingent remainder in fee, so that she may receive the income of it during her lifetime, which is the same as claiming that by such law she, upon her husband’s death intestate, became entitled to dower in his contingent - remainder guando the contingency happened provided for in the will of his father, her plea being that her husband came within the terms of the intestate law, having died intestate of a “ title or right,” of a legal nature in fee simple in “lands, tenements, or hereditaments,” to wit, a contingent remainder in fee of one moiety of the real estate devised by the testator in trust for his daughter, Mrs. Leonard, for life. The question then is a simple one, though its solution involves much consideration—Is the appellant entitled to dower in the contingent remainder of her deceased husband ? If so, she is, of course, entitled in equity to have the investment made for her benefit of one-third of the proceeds of the sale of one moiety of the real estate devised in trust for Mrs. Leonard for life.

If the question were upon the mere words of the intestate law without any reference to the law of dower as understood by the courts and the bar, we might possibly adopt the view presented by the appellant’s counsel and say that her claim is a Valid one; for those words are, “ When any person having title ' or right, legal or equitable, to any lands, tenements, or hereditaments in fee simple shall die intestate of the same, such lands, tenements, and hereditaments shall descend in fee simple in coparcenary according to the following course or order, to witwhich order is set forth in five clauses immediately following, and then comes the following language with respect to a surviving husband or wife: “ The descent of intestate reed estate shall, in all cases, be subject to the rights of the surviving husband or widow, that is to say,” * * * * * * “ if the intestate leave a widow and also any child, or lawful issue of such child, said widow shall have one-third part of the real estate aforesaid for the term of her life as tenant in dower.”

The language used by the legislature with respect to the subject of descent is certainly very strong, and considered merely as an abstract expression of the will of the General Assembly, would be hard to treat as meaning aught else than that a man’s widow should have her third of every right, legal or equitable, vested and in possession, or contingent only to lands, tenements, or hereditaments of which he died holding an inheritable estate intestate. In this case the appellant’s husband had, at the time of his death, and of which he died intestate, leaving her and issue to survive him, a good right in fee simple in a moiety of the lands devised by his father, Samuel Bush, to his daughter, Mrs. Leonard, though such right or title never could be enjoyed in possession but in the event of her dying childless leaving him to survive her. It was more than a mere possibility, however; it was a possibility coupled with an interest, such an interest as was devisable by him, and, in fact, descended under this same statute to his heirs. If it had been a possibility simply, no such question could have arisen as this appeal presents, nor could any such interest have been predicated of it as title or right in any sense. A mere possibility is no estate, interest, title, or right, of which any thought can be taken in a court of law or of equity, being nothing in legal contemplation. But a possibility coupled with an interest is a title and a right. Such is a contingent remainder, and such was the estate of the appellant’s husband under his father’s will. It is unnecessary to cite any authorities to show what a mere possibility is : the expectation of an heir-at-law is such, and is wholly without transferable or transmissible quality. But a contingent remainder has an interest legally connected with it and is devisable and descendible, which a mere possibility is not.

It is said that the origin of the law of dower is veiled in the obscure mists of the past; but the provisions of it, as a common-law right, stand out upon every page of the law of inheritable real estate. As a common-law interest purely, we do not think it can be conclusively held ever to have existed in this State (and we rather incline, upon this subject, to the opinion expressed by the Superior Court in the case of Coulter v. Holland, 2 Harr. 330, than to that given by the chief justice in the case of Layton v. Butler in the Court of Appeals, 4 Harr. 507), for the enactment of the law of 1816 was made necessary to place a widow in Delaware upon the same footing as her sister in England held. By the common law the widow’s right to a third of her late husband’s freehold of inheritance to hold as tenant in dower was free and clear of any alienations or incumbrances of his after the marriage; but that was not the law here from the earliest times, and is not so now except in cases of marriage sin'ce the 16th of February, 1816, the time when the act passed. Before that act the widow’s right, whatever it was and whence-soever derived, was subject to her husband’s debts, however and whenever created. It was to do justice to her, as we may suppose, that the dower act of 1816 was passed. If she had any right before that time that was not created or controlled by the provisions of the intestate laws of the State we have not seen any evidence of its recognition by the courts. It could not be the common-law right, for debts were subordinate to such right; whereas here they were always paramount until the act in question. The language of the intestate law of 1750—24 Geo. II —which superseded all the previous acts ( Vol. I, Del. Laws, p. 284) shows it; all the modifications of that law made since affirm this also. We will examine the statute law of this State in justification of this view.

The payment of a man’s debts seems to have been with those who instituted government in this region an object of such importance that all considerations of family obligation or interpn were postponed or subordinated to it. With this subject as illustrative of the sense of justice they entertained we have in this case nothing to do; but we may, we trust not improperly, commend their acts as an example of that stern sense of duty morally which ought to be emulated by their posterity in all their dealings and transactions, public as well as private—though we may not approve of all that resulted from it. We may condemn the subjection of the wife’s right to that of creditors; but they doubtless thought it merely a preference among creditors—her rights as a creditor (Avhich a Avidow is to be considered) being subordinated to theirs. If they treated the matter in that light any one can see how the case of other creditors differed in the vieAv of the early laAvmakers from a Avife creditor-—she obtaining advantages to which they could make no claim, and they having given full valuable consideration for the debts owing to them by her husband.

In accordance with such supposed vieAv of the early inhabitants at a remote period, viz.: in the 34th year of the reign of Charles II, 1682—the date of Penn’s feoffment of the three loAver counties—an act to be found at page 11 of the Appendix to Vol. I of the laws Avas passed by Avhich lands and goods are made liable to pay debts except where there should be legal issue, and then one-half the land only in case it were bought before the debts Avere contracted. In the next year (1683) another act Avas passed (App. p. 11) directing how the estate of a person should be disposed of, Avhich provided that one-third should go to the Avife, one-third to the children equally, and one-third as he pleased, and in case he left no wife two-thirds to the children and one-third as he should think fit—Ms debts being first paid. (Here was a restraint upon the power of devise.) In the same year (App.p. 17) an act Avas passed directing how the estate of an intestate should be disposed of, which provided that it should go to his Avife or children, and if he had none to his brothers and sisters, etc. Following this also in the same year (App. p. 17) Avas passed another act upon the same subject but more in detail, by which it was enacted that the estate of an intestate should be disposed of by giving one-third «.if'the personal to the wife, and one-third of the real to her during her life, the remainder, with the other tAvo-thirds, to go to the children, the eldest son taking a double share, etc., with a proviso that his or her (the intestate’s) debts be first paid, and that claim by any should be made in three years. In 1688 (App. p. 18) another act was passed which subjected lands to sale for payment of debts, but not until after the expiration of a year from the time the judgment was obtained, so that the owner might redeem upon an appraisement made by twelve men, with a proviso that the chief plantation was to be the last executed. In 1693 (5th William and Mary) an act was passed about testates’ and intestates’ estates (App. 20), which provided more in detail for their disposal, directing that the whole should be liable for debts, establishing the order of their payment, and a rule for the distribution of the residue, with a proviso that where the personal estate was sufficient to pay the debts the real estate of testators should be invested and remain as their last wills and testaments devised the same; and one-third of all intestate lands to be to the wife for life, the residue to be distributed as before directed with reference to surplus personal estate, with a proviso that an intestate’s relations or persons concerned who did not lay legal claim within three years should be barred. Afterward, in 1694 (6th William and Mary), an act was passed which provided that where any person should die intestate, being owner of lands and left issue, it should be lawful for his widow or administrator, in case of considerable debts, charge of child or children, to make sale of such parts or tracts as the county court or council should think fit toward defraying the debts, the education of the children, and the better improving the remainder of the estate to their advantage. (App. p. 23.) Then came the law about testates’ and intestates’ estates, passed in the 9th of William and Mary (1697)> subjecting all real and personal estates of deceased persons to the payment of debts and providing that after the debts are all paid and where the personal estate was sufficient, the real estate of a testator should be disposed of in manner following, that is, with respect to the estate of testators, that it should go according to the will, provided, that not less than one-third should be allowed and invested in the widow during her life unless other equivalent provision had been made for her by the testator, and one-third of all intestate lands to be to her for life, and the residue and remainder to be allotted and distributed in the same manner as the surplusage of intestates’ personal estates—the distribution to be made by the register-general, and those to whom shares were allotted to give refunding bonds with surety—and extending the time for claims by relations or persons concerned to seven years. (App. p. 24.) In the 12th year of William III (A. D. 1700) another act was passed with this title, “ An Act for ascertaining the descent of lands and better disposition of the estates of persons intestate ” (App. p. 26), which, “for the prevention of disputes and contests at law or otherwise concerning estates real or personal of persons dying intestate, and for the more equal payment of the debts,” provided that all lands, tenements, and hereditaments, and all personal estates whatsoever which any person hath or is seized or possessed of, in his or her own right at the time of his death, should be liable to be seized and sold by the executor or administrator, and directing that where the personal estates of testators are sufficient to pay their debts, not less than one-third of the real estate should be allotted to the widow for life, except where equivalent provision had been before made for her by the testator, and one-third of all intestates’ lands should go and be allotted to the widow for life, with the same provision as to refunding bond as above. In the same year of 1700 there was passed an act which provides that if any person die intestate, being owner of lands within this province or territories thereof, and leave legal issue behind him but no sufficient personal estate for their maintenance, on paying of debts it shall be lawful for the widow or administrator to make sale of such part or parcel as the Orphans’ Court should think fit toward defraying the just debts of the intestate, the education of his children, and improving the remainder of the estate (if any be) to their advantage. (App.p. 30.) We now pass forward to the year 1706 and find the act entitled “ An Act for ascertaining the descent of lands and better disposition of the estate of persons dying intestate,” which (following substantially the first act above referred to of the 12th of William III) provides, inter alla, that after intestates debts have been paid, widow to have one-third for life. (App. p. 50.) Then, after a long interval, came the act of 1721 (App. p. 55) “ for the better settling of intestates’ estates,” which law applies to- personal as well as real estate, and contains, with others, a provision that if any person die intestate, being owner of lands and tenements and leave issue and no sufficient per soñal estate to pay his debts and maintain his children, his executor or administrator may sell such part of the land for that purpose as the Orphans’ Court may direct from time to time— provided that no lands contained in any marriage settlement should be so disposed of contrary to the form and effect of the settlement, and after other provisions with respect to division of the land not necessary to be sold for payment of debts, called surplusage or remaining part, among the heirs as tenants in common, contains a clause enacting that the widow of the intestate shall have the full third as her dower in the lands whereof her husband died seized, which dower she shall hold as tenants in dower do in England. This repealed the act of 1706. This act was followed by that of 1742 (App. p. 62), which repealed all prior acts for the settling of intestates’ estates, but re-enacted substantially most of the essential provisions of the repealed acts— providing among other things that where persons died intestate, being owners of lands and who should not have disposed of the same in his or her lifetime by will or otherwise, the widow should have one-third unless otherwise provided for by marriage settlement; and it is afterward provided that in case of a deficiency of personal estate to pay the debts and maintain the children, it should be lawful to sell the land for the purpose, but not any contained in a marriage settlement, the sale to be made if allowed by the Orphans’ Court. This act remained in force until the 24th of George II (A. D. 1750) when it was in turn repealed, and another act (vol. 1, p. 284) passed in its stead, being an act “for the better settling intestates' estates” (which is the same in substance as the act last cited), the 10th section of which subjects the widow’s third given her by the 5th section of it, as well as the residue, to sale for the payment of debts and the maintenance of the children, with a provision that no lands and tenements contained in any marriage settlement should be sold or disposed of contrary to the form and effect of such settlement. It is true that subjection of the wife’s right is not made in terms, but the provisions of the 10th section, as well as similar ones in the repealed acts, are inconsistent with any other construction, keeping in mind what we have assumed as the purpose of our ancestors, to do exact justice to pecuniary creditors, and prefer them to any claiming by or through the husband except with reference to settlements before marriage in favor of the wife. This view of the purpose of the early settlers of this region with respect to the estates they might leave enables us to understand all their legislation we have referred to ; without taking it we should be involved in a maze of confusion and difficulty. The property of a deceased person, both real and personal, should, in their opinion, be subject in all cases to the payment of debts before any claim was to be made upon it by those who founded their right upon their connection with him. As the widow was in such respect in pari materia with his heirs or devisees, her claim was subordinated or postponed to that of creditors simply.

The law remained thus until the passage of the act of the 16tli of February, 1816, before mentioned, which is in brief as before stated, and is to be found on page 533 of our last code. This act established a different rule and conformed the law of this State to the English or common-law rule of dower, except that by it all debts contracted before the act passed had still a preference over dower. [It is an interesting fact that opposition was made to the law because it subordinated debts made afterward by the husband to the widow’s claim, and that the late Judge Hall expressed in writing while the bill was on its passage his objection upon that ground.] At this time the statute of 1816 is practically the same as the common law of England was at the time it was passed, and all debts created by the husband alone after marriage are subject to the wife’s dower. Her claim is preferred to that of other creditors, for, as before said, she is a creditor as well as they, and was thought in 1816 a more meritorious one, being, in legal contemplation, a purchaser of her right when she became wife.

It may be thought that all this has really nothing to do with the present appeal, which is from the chancellor’s decree denying the widow of George Bush, the appellant, her claim to have one-third of the proceeds of one-half of the real estate devised by his father, Samuel Bush, in contingent remainder to said George, invested for her benefit. It is true that to a certain extent it has nothing to do with that question, because George Bush did not leave any debts to be paid out of it, but it has something to do with the question considered, what was the law of dower in this State prior to 1816; it being our view that never until that act was passed had she any such claim of dower as widows had in England down to that time, although her estate, after assignment, was legally the same. And we thus agree with the Superior Court in Coulter v. Holland, before referred to. We have entered upon the consideration of her right generally, as it was understood in this State, to sustain our position and that of the Superior Court, that hers was not the common-law right, strictly, because of liability to debts. The intestate law recognized her right, as at common law, but as subject to debts.

Having disposed satisfactorily to our minds of the nature of the widow’s right to dower in this State down to 1816, it is not necessary to consider whether that act did or did not modify the law of the State then existing as we have construed it, because the claim made in the case before us is not under that act, but under the intestate law of 1827, which repealed all former acts, such law having been continued in substance to this time. And to be entirely just in all respects, we call attention to the fact that although the word seized, in two of the acts before cited, would indicate, we think certainly, that a legal estate in fee simple was in the contemplation of the makers of the law, yet the term owner is used in the later acts, which would seem to warrant the conclusion that by adopting it the legislature intended a meaning of wider significance than the term seized applied to an intestate person would bear. We might feel inclined to yield to such inference were we left to our own notions of what the legislature meant by the use of that term, for it is a broad one and embraces, seemingly, every sort of inheritable interest of which a person might die intestate. But we are not left to our own impressions merely upon that subject for, in the first place, it did not embrace equitable estates so as to give dower in them, nor,„secondly, was it treated as having any other meaning than that of a person seized; the three cases presently to be cited upon the point of seizin sustains the first view, and the last is supported by the caes of Joseph Walton, petitioner, v. Priscilla Carlisle, heard by Chancellor Bidgely, in the county of Sussex, on the 21st of July, 1819, and which required that the meaning of the term owner in the intestate laws then in force should be given. It was a case for division, but where the intestate was not in possession at the time of his death, and the chancellor dismissed the petition, denying partition of the premises because the intestate “ did not die the owner ” of the land, “ that is, he was not seized and possessed of it at the time of his death.” Afterward several cases were heard before the same court, two in that county and one in Kent, involving the same question substantially—that is, what kind of ownership was necessary to give a widow dower in the lands of her husband, and in each of them it was distinctly held that he must have had legal seizin, such as gave him at law the right to immediate possession, whether he had such possession or not. These cases are cited in the brief of the counsel for the appellees and are the following : Whittington Johnson’s Widow, Kent, 3 Ch. Ridgely’s Notes 396 (1821); Lofland and Wife v. Phillips, Sussex, 4 Ridgely’s Notes 152 (1823); Bloxom v. Hudson, Sussex, 4 Ridgely’s Notes 238 (Ibid.), the last of which was decided in 1823, four years before the act of 1827. Whatever may have been the view of the law with some with respect to the rights of a widow to dower or thirds, it would seem to be quite certain that, down to the time of the last of these cases at least, there was no doubt in the minds of the bar of this State that the dower right was subordinate to debts created before the act of 1816 passed, and that where it was claimed under the intestate law it was not only subject to all debts whenever contracted, but could only exist at all where the husband was seized at the time of his death—the term owner, according to such high authority as Chancellor Bidgely, meaning a person seized—a proprietor of a legal estate of inheritance in possession.

In 1827 the intestate law was re-enacted, but modified so as to place widows of cestuis que trust dying in possession of the trust estate upon the same footing as those of legal tenants of the present inheritance. Such we understand to have been the chief design of the modification, if not the only one, and as that act was passed fifty years ago, and with respect to its essential lan guage concerning the question before us has never been altered, we are required to give it a construction warranted by the import of that language as we understand it. In the absence of any personal knowledge concerning the use of the terms employed in the act of1827 to define the kind of estate that was to be the subject of assignment of dower and division in the Orphans’ Court, we are compelled to rely upon what would seem to have always been the understanding of the profession as to their meaning, which is that they were not intended or supposed to enlarge that of the word owner, as used in the later acts we have cited and which had before received the judicial interpretation given to it ■in the case of Walton v. Carlisle. The words title or right in that statute, and as employed in the subsequent re-enactment of it in both codes of 1852 and 1874, have always been understood, where a legal estate was the subject, as not amplifying the sense of the word owner previously employed, but as intending to express the legal notion of proprietorship of an inheritable estate in possession, and this view is strengthened by the provision in them that proceedings for partition shall not be taken with respect to lands not in the actual possession of the intestate at the time of his death, etc. Such provision must, we confidently think, have been used to adapt the law to the views expressed by Chancellor Ridgely with respect to the meaning of the term owner—that is a person seized. If so, then ownership of lands, held by legal title, and seizin of them are convertible terms, and the chancellor was right in his decree. The fact that it was not appealed from would seem to be conclusive of acquiescence by the profession in it.

Taking this view, how can George Bush, the husband of the appellant in the case before us, be said to have had at the time of his death such title or right as entitles her to have invested for her benefit a third part of the lands devised in contingent remainder to her husband and his brother? We do not see how it can be. He surely had no seizin, nor the right to any, because he died while a valid legal estate (that of the trustee of Mrs. Leonard) was outstanding and undetermined. There is no case to be found in the jurisprudence of this State where a widow was given dower (except in equitable estate since 1827) unless her husband had a legal seizin of an inheritable estate at some time during the coverture. The freehold as well as the inheritance must be in the husband or no right of dower can attach. This is an elementary principle of the law of dower familiar to every student even. The freehold in this case never was in George Bush under his father’s will, but was outstanding, as before said, and he died before the event happened which could vest in him his contingent remainder. To sustain the widow’s claim in this case would, we think, be overturning all the rules of law with respect to right of dower, which rules apply to such rights here as well as at common law. There is no modification of the common-law title to dower in this State except that equitable estates are included in the intestate law. ft is true that in a case of application under that law, where the widow and heirs all claim from or under the same person, the heir is not allowed to dispute the seizin of the husband because his own claim is founded upon it (Griffith v. Griffith, 5th Harrington, p. 5), but in this case the right of George Bush’s children does not depend upon his seizin, for it never existed, and they can resist as a stranger could. We have been referred to a case in Pennsylvania by the appellant’s counsel, that of Cote’s Appeal, decided in the Supreme Court of that State (No. 6, Vol. 1, Law and Equity Reporter 197) which seems in conflict with this opinion; but that decision Avas made under a peculiar act of assembly of that State, Avhich treats the widow more as a party taking by descent than othenvise, and blends together the real and personal estate of a decedent; her claim under that laAV can hardly be called dower as we understand that term, and as dower is secured to her in legal estates under our intestate law, with respect to which 1uav no one has ever suggested in a court of this State that the dower there, whether recognized as her right or conferred by its provisions, is in any sense different from that enjoyed by widows under the common laAAr, except that it is subordinate to the payment of the intestate’s debts. We are neither bound by nor have Ave any inclination to folloAV the Pennsylvania decision, founded, as it is, solely upon the intestate law of that State, for by so doing we should oppose our own sense of right in the case before us, and also the understanding of the profession in this State as to the law of dower or thirds.

I am, therefore, of the opinion that the decree of the chancellor should be affirmed. •

Wales, J.:

Samuel Bush devised real and personal property to his son, David Bush, in trust for the sole use and benefit of the testator’s daughter, Rebecca Leonard, during her natural life, and to the issue of the said Rebecca who might be living at the time of her death, “ the real estate in fee simple and the principal of personal absolutely;” but should Rebecca die leaving no child to survive her, then to his two sons, David and George, in fee. Rebecca Leonard survived her father and her brothers, David and George, and died without issue. Proceedings having been instituted in chanceiy for the partition of the real estate thus devised, the widow of George Bush claimed dower in the share to which her husband would have been entitled had he survived his sister, Rebecca. The chancellor decided against the claim on the ground that George never had an equitable estate in fee simple, or such an estate of freehold and inheritance at one and the same time in the land devised by his father as would support the widow’s right of dower. From this decision an appeal has been taken.

At common law the right of dower could not attach upon any estate of which the husband had not been seized either in deed or in law at some period during coverture. A mere right to or interest in land, unless accompanied by technical seizin, was not sufficient to confer a title of dower. Conveyance by feoffment and livery of seizin was never generally adopted in this country, and in Delaware legal seizin could always be acquired by deed of bargain and sale, by descent, devise, or assignment; but notwithstanding that the solemn formalities of actual livery which were once required by the law of England were never recognized in this State, the rule of the common law making a legal estate in the husband a prerequisite to the right of dower was retained in force until the year 1827, when by a statute passed in that year the estate of the husband subject to dower was enlarged so as to embrace lands, tenements, and heredita ments to which he had “ title or right, legal or equitable,” in fee simple, and it is upon the construction of this statute that the appellant claims to be dowable in the lands devised to her husband. It is contended that George Bush had a contingent interest in the land which he might have conveyed away or assigned during his life and also an estate of inheritance, and that both combined invested him with a dowable estate. But this position is not sustained by precedent or principle. Dower is not allowed in estates in remainder or reversion expectant upon an estate of freehold, and hence if the estate of the husband be subject to an outstanding freehold estate which remains undetermined during the coverture no right of dower attaches. 1 Scrib, on Dower 218. In this case there was an outstanding freehold in a trustee for the benefit of Mrs. Leonard which was determinable at her death, and only on the failure of issue surviving her was one-half of the real estate to go to George Bush. So that, dying in the lifetime of Mrs. Leonard, he never had an estate of freehold, or an estate in fee simple, legal or equitable. His interest was purely a contingent one.

Mr. Park, in his treatise on Dower, puts a parallel case. To let in the title of dower the particular estate must determine or be destroyed in the lifetime of the husband. Although the wife should survive the husband, and afterward, during her life, the particular estate should determine, she would not thereby acquire any right to be endowed of that estate, because there was no seizin during coverture of such an estate as her title could attach upon. Park on Dower 76. It is true, dower is here excluded for the want of legal seizin in the husband, but in a preceding part of the treatise he lays down the general rule that the estate of the husband should confer the right to the immediate freehold, that is, the first estate of freehold, bestowing the present enjoyment except so far as that enjoyment may be subject or postponed to terms for years or other chattel interests. Ibid. 53. The question here is whether the husband of the claimant had “title or right, legal or equitable, in fee simple.” Under his father’s will he had a contingent interest liable to become vested upon the death of Mrs. Leonard without issue during his lifetime, but that event did not happen, and therefore no freehold estate was vested in him. On his death his heirs took, not by descent but by limitation in the will of Samuel Bush, as contingent devisees, and thus he had no estate of inheritance. Adams v. Beekman, 1 Paige 631. It does not appear that he ever had an equitable estate in fee simple as required by the statute under which this claim for dower is made. This statute did nothing more than to extend the dower right of the widow to equitable estates in fee as well as to legal estates, but did not remove or extinguish the other prerequisites to dower as established and enforced at common law. One of these conditions is that the freehold and the inheritance must be in the husband simul et semel, “ at once and together.” There must be no intervening vested freehold estate in a third person' between the freehold and inheritance of the husband; the inheritance as well as the freehold must be in possession. In other words it must be the immediate inheritance and not an inheritance expectant upon an estate of freehold in any other person. The interposition of a mere possibility, so that it be of a freehold nature between the life estate and inheritance of the husband, will, so long as the possibility exists, prevent the title of dower from attaching. Its effect is not merely to defeat the right of dower upon the happening of the possibility, but to absolutely prevent it from coming into existence unless the possibility be determined during the coverture. 1 Scribner on Dower 234; Park on Dower 72; and the cases there cited. It is upon this principle that dower is denied to estates held in'joint tenancy—the possibility of survivorship operating to prevent dower from attaching-

Dower is a meritorious claim and is favored at law, but should not be allowed in contravention of well-settled principles and rules. These may appear to be artificial and unreasonable in their application to particular cases, but they have been established and recognized for such a length of time in determining questions of this kind that, in the absence of special legislation, it would be" dangerous to depart from them, and in no other branch of the law of real property is it more vitally important that-courts should adhere to the maxim stare decisis.

Wootten and Houston, Judges, concurred.