Woodworth, J. delivered his opinion, nearly as fellows : A preliminary objection is taken, that due notice of this appeal has not been given. Cheever, the respondent and owner of the lands, resided in Massachusetts, but he personally appeared to answer the proceedings which were' instituted before the Surrogate ; and while the subject was before the admeasurers, Hascall fy Ross were treated as his attorneys, in all the different stages of the investigation. After the decision, they were instructed by him, to keep a good look out. The statute does not designate the person on whom, nor the manner in which, notice of the appeal is to be served. Here they were Served upon HascJll, the partner of Ross, This fact comes to the knowledge of the respondent, so that he has a fair opportunity of contesting the matter. He retains counsel, who watches the proceedings down to the time of the motion, when be is heard by his [474]*474counsel against the appeal.
The premises in question contain a valuable ore bed, which was partially opened by the husband of the appellant, during his life time. Since his death, the owner has extended this opening at great expense, and with very great success. In setting off dower, the admeasurers disregarded the increased value of the land arising from the circumstance of its containing this ore bed. They estimated the value, considered merely with a view to its agricultural improvement, and assigned by metes and bounds sufficient to cover one sixth of that estimate, carefully avoiding any interference with the ore. There is no doubt that as to mines in general, including beds of iron ore, if they are unopened at the time of the owner’s death, his widow must take her dower in other land merely. The newly opening a mine is waste, and the wddow, having only an estate for life, can legally do no act which injures the inheritance. All the cases agree in this. But it is equally clear, that if, during the husband’s life time, mines are opened, dower in them is properly assignable. In this case, the admeasurement must accordingly be set aside. The admeasurers must assign to the. appellant her dower, in all mines which were opened during her husband’s life ; but she cannot profit by any extension of that opening. The admeasurers should take into consideration the value of the mine as far as it was opened during the husband’s life, and then assign the dower, either by measuring off one third in value, or specifically assigning a reasonable share of the profits at short periods. The case of Stoughton v. Leigh, (1 Taunt. 402,) contains the rules by which, I think, the admeasurers ought to be guided.
Savage, Ch. J.
By the 10th section of the act, (1 R. L. 61,) any party conceiving himself aggrieved, by the proceedings before the Surrogate, may appeal to this Court, giving notice in writing, within 30 days after filing the report of the admeasurers, of the causes of complaint and of his intention to apply to the next Supreme Court. The notice, in this case, was served on Hascall, the partner of Ross, within the time; but no notice was served on the respondent, or his tenant in possession of the premises. Ross swears, that neither himself nor Hascall were the attorneys' of the respondent, except as being occasionally employed by him and requested to keep a look out for him ; but they had no authority either to let or dispose, in any way, of the property in question, or any other property of the defendant. Service of notice on an attorney upon record, in the progress of a cause prosecuted or defended by an attorney, is good ; but Ross was merely counsel before the Surrogate, where attorneys are not known as officers of the Court. The case is somewhat similar to proceedings before Justices. Suppose, upon certiorari brought, the plaintiff should serve his assignment of errors upon the person who had acted as counsel for the opposite party before the Justice, would this be a good service ? The notice, in my opinion, should have been sent to the respondent by mail, or served upon his tenant, or upon his attorney in fact, if he had one. Either mode of service would probably be sufficient, where the respondent, as here, resides out of the state. If nothing farther appeared, therefore, I should be against the application upon the question of notice. But it seems, from the papers, that the respondent had actual notice of the bringing this appeal, and this in season to enable him to retain counsel and prepare for his defence. The whole case is fully before us, and I think we are justified, under such circumstances, in entertaining jurisdiction and deciding the case upon its merits.
Admeasurers of dower were regularly appointed on application of the appellant. They assigned her dower of • lands in Essex county, being the third of one half of a certain lot, which is valuable chiefly on account of an iron ore [476]*476bed which it contains. The admeasurers assigned the dower under an impression, that she was not entitled to any share in the ore bed.' They, of course, gave her no part of this bed ; nor did they estimate it, in the value of the lot, in setting off the sixth part.
The widow appeals to this Court, and we are now moved to set aside the assignment as inequitable. The respondent. resists the application, on the ground that the appellant is not entitled to dower of the mine.
By the affidavits on the part of the respondent, it appears that John Coates, the husband of the demandant, in his life time, (1809) borrowed of the respondent $32,000> conveyed the premises in question to him for $ 15,000, and died insolvent ; so that this property is all that the respondent has, or will ever be able to obtain for his debt. Coates had purchased one half of the premises of one Harman, at the same time giving him a mortgage thereon ffir the consideration money. This mortgage has since been regularly assigned to the respondent. It farther appears, that the pits from which ore was taken by Coates, have filled up, by the falling in of earth and stone ; that the respondent has sunk' a new pit, and built a whari on the shore of Lake Champlain, at an expense of from two to three thousand dollars.
In England, the law seems to be settled, that the widow is entitled to be endowed of mines opened and worked in the life time of her husband, but not of such as were unopened'. Littleton says,(q) “ the wife, after the decease of her husband, shall be endowed of the third part of such, lands and tenements as were her husband’s at any time during the coverture, to have and to hold to the same wife, in severalty, by metes and bounds for the term of her life.” Ld. Coke,(r) in his Commentary upon this text, enumerates several cases where the widow shall be endowed, though she cannot, from the nature of the property, hold by metes and bounds. One is the case of a mill, in which she may be endowed of the third toll dish. He enumerates a variety of other cases, but is silent as to- mines. In Hoby v. Hoby,(s) the Court of Chancery recognized the widow’s right to
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Woodworth, J. delivered his opinion, nearly as fellows : A preliminary objection is taken, that due notice of this appeal has not been given. Cheever, the respondent and owner of the lands, resided in Massachusetts, but he personally appeared to answer the proceedings which were' instituted before the Surrogate ; and while the subject was before the admeasurers, Hascall fy Ross were treated as his attorneys, in all the different stages of the investigation. After the decision, they were instructed by him, to keep a good look out. The statute does not designate the person on whom, nor the manner in which, notice of the appeal is to be served. Here they were Served upon HascJll, the partner of Ross, This fact comes to the knowledge of the respondent, so that he has a fair opportunity of contesting the matter. He retains counsel, who watches the proceedings down to the time of the motion, when be is heard by his [474]*474counsel against the appeal.
The premises in question contain a valuable ore bed, which was partially opened by the husband of the appellant, during his life time. Since his death, the owner has extended this opening at great expense, and with very great success. In setting off dower, the admeasurers disregarded the increased value of the land arising from the circumstance of its containing this ore bed. They estimated the value, considered merely with a view to its agricultural improvement, and assigned by metes and bounds sufficient to cover one sixth of that estimate, carefully avoiding any interference with the ore. There is no doubt that as to mines in general, including beds of iron ore, if they are unopened at the time of the owner’s death, his widow must take her dower in other land merely. The newly opening a mine is waste, and the wddow, having only an estate for life, can legally do no act which injures the inheritance. All the cases agree in this. But it is equally clear, that if, during the husband’s life time, mines are opened, dower in them is properly assignable. In this case, the admeasurement must accordingly be set aside. The admeasurers must assign to the. appellant her dower, in all mines which were opened during her husband’s life ; but she cannot profit by any extension of that opening. The admeasurers should take into consideration the value of the mine as far as it was opened during the husband’s life, and then assign the dower, either by measuring off one third in value, or specifically assigning a reasonable share of the profits at short periods. The case of Stoughton v. Leigh, (1 Taunt. 402,) contains the rules by which, I think, the admeasurers ought to be guided.
Savage, Ch. J.
By the 10th section of the act, (1 R. L. 61,) any party conceiving himself aggrieved, by the proceedings before the Surrogate, may appeal to this Court, giving notice in writing, within 30 days after filing the report of the admeasurers, of the causes of complaint and of his intention to apply to the next Supreme Court. The notice, in this case, was served on Hascall, the partner of Ross, within the time; but no notice was served on the respondent, or his tenant in possession of the premises. Ross swears, that neither himself nor Hascall were the attorneys' of the respondent, except as being occasionally employed by him and requested to keep a look out for him ; but they had no authority either to let or dispose, in any way, of the property in question, or any other property of the defendant. Service of notice on an attorney upon record, in the progress of a cause prosecuted or defended by an attorney, is good ; but Ross was merely counsel before the Surrogate, where attorneys are not known as officers of the Court. The case is somewhat similar to proceedings before Justices. Suppose, upon certiorari brought, the plaintiff should serve his assignment of errors upon the person who had acted as counsel for the opposite party before the Justice, would this be a good service ? The notice, in my opinion, should have been sent to the respondent by mail, or served upon his tenant, or upon his attorney in fact, if he had one. Either mode of service would probably be sufficient, where the respondent, as here, resides out of the state. If nothing farther appeared, therefore, I should be against the application upon the question of notice. But it seems, from the papers, that the respondent had actual notice of the bringing this appeal, and this in season to enable him to retain counsel and prepare for his defence. The whole case is fully before us, and I think we are justified, under such circumstances, in entertaining jurisdiction and deciding the case upon its merits.
Admeasurers of dower were regularly appointed on application of the appellant. They assigned her dower of • lands in Essex county, being the third of one half of a certain lot, which is valuable chiefly on account of an iron ore [476]*476bed which it contains. The admeasurers assigned the dower under an impression, that she was not entitled to any share in the ore bed.' They, of course, gave her no part of this bed ; nor did they estimate it, in the value of the lot, in setting off the sixth part.
The widow appeals to this Court, and we are now moved to set aside the assignment as inequitable. The respondent. resists the application, on the ground that the appellant is not entitled to dower of the mine.
By the affidavits on the part of the respondent, it appears that John Coates, the husband of the demandant, in his life time, (1809) borrowed of the respondent $32,000> conveyed the premises in question to him for $ 15,000, and died insolvent ; so that this property is all that the respondent has, or will ever be able to obtain for his debt. Coates had purchased one half of the premises of one Harman, at the same time giving him a mortgage thereon ffir the consideration money. This mortgage has since been regularly assigned to the respondent. It farther appears, that the pits from which ore was taken by Coates, have filled up, by the falling in of earth and stone ; that the respondent has sunk' a new pit, and built a whari on the shore of Lake Champlain, at an expense of from two to three thousand dollars.
In England, the law seems to be settled, that the widow is entitled to be endowed of mines opened and worked in the life time of her husband, but not of such as were unopened'. Littleton says,(q) “ the wife, after the decease of her husband, shall be endowed of the third part of such, lands and tenements as were her husband’s at any time during the coverture, to have and to hold to the same wife, in severalty, by metes and bounds for the term of her life.” Ld. Coke,(r) in his Commentary upon this text, enumerates several cases where the widow shall be endowed, though she cannot, from the nature of the property, hold by metes and bounds. One is the case of a mill, in which she may be endowed of the third toll dish. He enumerates a variety of other cases, but is silent as to- mines. In Hoby v. Hoby,(s) the Court of Chancery recognized the widow’s right to[477]*477áower in & coal mine. In Saunders’ case,(t) it was decided, in the Common Pleas, that a lessee for years, or for life, may dig mines which are open, but shall not open new ones, unless he has a lease of them specifically ; and then he may dig for them. In Clavering v. Clavering,(u) it was decided by Lord Chancellor King, that a tenant for life may open the earth, in new places, in pursuit of an old vein of coals, when the coal mines had been opened before he came to the estate. In Whitfield v. Bewit,(v) it was decided that A, having an estate for life, subject to waste, shall no more open a mine, than he shall cut down timber trees; but in this case, the mines spoken of were thosewhich had never been opened. In the late case of Stoughton v. Leigh,(w) the Court of Chancery put several questions to the Common Pleas, for their opinion. It is stated that the husband was seised of several lead and coal mines, some in his own land, and some under the lands of others. Some had been opened and worked, in his life time, and some had not. And it is asked, Whether the widow is entitled to dower of all, or any, and which of the mines ? The Common Pleas answered, that the widow was dowable of all the husband’s mines of lead and coal, which had, in fact, been opened and wrought before his death, in which he had an estate of inheritance ; and that her right to be endowed did not depend on the subsequent discontinuance of working them, either by the husband ; or those claiming under him since his death ; but that she was not dowable of mines which had not been opened at all; that in assigning dower, the Sheriff should estimate the annual value of the open mines, and might assign them to her or not; and when assigned to her, she may work them for her own exclusive benefit. If the property could be divided by metes and bounds, that was the most proper manner, but if it was not susceptible of such a division, he might proportion the enjoyment and perception of the profits, and direct a separate alternate enjoyment of the whole for short periods, proportioned to the share each had in the subject.
I cannot- find, from what research I have been able to make, that this question has ever been adjudicated, either [478]*478in this state or in any of our sister states; but all the authorities in the English books, both ancient and modern, establish the right of the widow, to be endowed of such mines as have been opened and worked during the life of the husband, (x)
Mrs. Coates, then, is entitled to be endowed of the ore bed in question. The admeasurers were irregular in undertaking to decide upon her right in the land. It belonged to the Surrogate to determine What proportion of the premises should be set off, and it was the duty of the admeasurers to •obey his order. What facts appeared before the Surrogate the Court cannot know ; but it is to be presumed that he decided correctly, and according to the facts presented to him.
Another question for oúr consideration is, whether the appellant was entitled to one third or only one sixth of the property. In Hitchcock v. Harrington,(y) it was decided that the widow of the mortgagor was entitled to dower, the mortgage being paid up, and the tenant deriving title through the mortgagor, the mortgagee having never entered or foreclosed his mortgage." In Collins v. Torry,(z) the demandant shewed title from one Merrick, in 1775, to her husband. From him it passed, through Parsons and Winston, to the tenant. The tenant produced a mortgage from Merrick, in 1772,' which was duly assigned to the administrator of Winston, and upon which, as appeared by an endorsement, interest was paid, in Í784: The Court decided in favour of the demandant ; and among other things, say—“ A mortgage, before foreclosure or entry, is not now regarded as a legal title,’ which a stranger can setup. It can only be used by the mortgagee and his representatives.” It is added—“ The' purchase of the mortgage was, in effect, a discharge of the mortgage, in favour of the title under the mortgagor: It is therefore extinguished, and .the' title of the tenant relates back to, and is founded on the seisin of -the husband.” In Stow v. Tifft,(a) the Court decided that the widow of a mortgagor for the purchase money, the deed and mortgage being cotemporancous, is barred of her dower, by foreclosure of the mortgage. A question, thqn, presents itself, [479]*479whether the purchase, by the respondent, of Harmon'1 s mortgage, is to be considered an extinguishment of it, or whether his possession is to be considered an entry, under the mortgage, in the nature of a foreclosure. The spirit of the cases cited seems to be this; that where the tenant in possession enters by virtue of a purchase from the mortgagor, then, .the subsequent purchase of the mortgage, by him, is an ex-tinguishment, and the widow’s right relates back to the pur* .chase b.y her husband, and she shall recover. But where .the tenant enters by virtue of a foreclosure, or after a forfeiture for non-payment of the money, then the estate is deemed never to have vested in the husband, and the widow is not entitled to dower.
In this view of the case, Mrs. Coates is entitled to dower in the whole of the premises, according to the value at the time of alienation by her husband. The Surrogate, therefore, was right in directing the admeasurers to lay off one third, by metes and bounds, and the admeasurers erred in adopting a different rule. They ought to have assigned to the widow one third of th.e whole estimated value of the property, deducting the value of the improvements made since the sale by her husband. If practicable, they should have given her a proportion of the ore-bed, assigning to the tenant his own improvements. If such a division was impracticable, then they should have directed an alternate occupancy of the whole, or a share of the profits, always securing to the tenant, under our statute,(b) his own improvements, or a suitable allowance for the use of them.
It was objected, on the argument, that a Surrogate’s .Court, is not a fit tribunal to be entrusted with proceedings of this nature. -This objection has no weight. -The legislature has given the power, and I can see no reason why three admeasurers are not equally competent withthe Sheriff, to make a just partition.
Accordingly, the following rule was entered:
[480]*480November 4th, 1823.
“In the matter of Maria Coates, appellant, and
Abijah Cheever, appellee.
On reading and filing an appeal from the admeasurement of dower, made in pursuance of an order of the Surrogate of the county of Essex, and the affidavits and papers accompanying the said appeal, it is ordered, that the admeasurement of dower heretofore made, be set aside and vacated ; and that the admeasurers proceed to assign to the said Maria, her reasonable dower in the lands and tenements mentioned and described in the order of the said Surrogate ; and whereas it appears, that on the premises, in which dower is claimed, there is a valuable iron ore bed, which John Coates, the husband of the said Maria, opened and Worked in his life time, and that he was the owner and proprietor of the said lands, when the said ore bed was opened and worked as aforesaid; by reason whereof the said Maria is dowable of and in all such ore beds on the said premises, as were, in fact, Opened and wrought before the death of her said husband, and wherein he had an estate of inheritance during the coverture; It is further ordered, that, in making the assignment, the admeasurers estimate the annual value of the Ore beds that had been opened as aforesaid, as part of the valué of the estate of which the said Maria is dowable; that the admeasurers may, in their discretion, assign the dower of the said Maria, in land set out by metes and bounds, and containing none of the said ore beds, or they may include any of the said ore beds, so as aforesaid opened, in the sard assignment, describing them specifically, if the particular lapds in which they lie should not also be assigned; but if those lands should be included in the assignment, the open ore beds ■within them need not be so described; being part of the land itself assigned ; or the said admeasurers may divide the enjoyment or perception of the profits of any of the said open ore beds, by directing a separate alternate enjoyment of the whole, at short periods, proportioned to the share each party had in the subject, or by giving the said Maria a proportion of the profits, fn each and every case, however, the said [481]*481adnieasurers are not to take into account or assign dower of any part or portion of said ore bed opened by said Abijah Chcever and others, since the death of the said John Coates, nor the improvements made on the said premises by the said Abijah Chcever, and others since the death of the said John Coates.”
Vid. Jackson v. Stiles, ante, 222. In England, if there bfe any ii<- • regularity in the service of a rule to shew cause; it will be waived by the party’s afterwards appearing, and shewing cause against they ule. Tidd. 445. 2 Archbold, 267.