Coulter v. Holland

2 Del. 330

• Court: Superior Court of Delaware
• Decided: July 5, 1838
• Status: Published

Opinion

By the Court:

Harrington, Justice.

By the common law the wife is dowable of a third part of all the lands and tenements whereof her husband was seised during the coverture, to hold for the term of her life in severalty by metes and bounds. (Litt. ch. 5, Sec. 36; Co. Litt. 31, a. &c.) And though the wife was deemed to be in by the husband, (note 177 to 31 a,) yet she could not enter without assignment, (Co. Litt. 32 b,) which was ordinarily by the heir and without suit. In such case the assignment was not necessarily of the third part of each parcel, but might be of one tract as her share of the whole. (Park on Dower, 262-3; 1 Roll’s Mr. 683, 4; 2 Bac. Ab. tit. Dower, D. 374, 376; 5 Bos. & Pull. 1, 33.) Nor was it necessarily by metes and bounds, or even in severalty; for where the husband made a lease for years, and died ; and the heir said to the wife, I endow you of the third part of all the lands whereof your husband was seised ; it was held, 1st, that this was a good endowment, though not by metes and bounds: and, 2d, that this assignment bound the lessee and they held in common. (Co. Litt. 32, b. n. 1.) But unless hindered by the peculiar circumstances of the property, or the nature of the tenancy therein, the assignment was by “ metes and bounds,” which was called “ assignment according to common right.” (Park on Dower, 251.)

Where the heir did not voluntarily assign the dower, after demand, the remedy of the wife was by writ of dower unde nihil habet, now almost superseded by assignment out of chancery, in which the judgment was that she recover the third part; and by the Stat. Merton, damages from the death of her husband. (Co. Litt. 32, b.) The setting out dower in pursuance of such judgment was more strict, the sheriff being bound by the ancient law, and perhaps " i present, to assign not merely by metes and bounds, but a third of each separate tract, and a third part of each existing denomination of property; as a third of the arable land, a third of the meadow and a third of the pasture. (1 Roll’s Abr. 683.) This may not anciently have been so inconvenient and injurious a mode of assigning dower, when estates were generally so large as to admit of these subdivisions; but in more modern times the cases seem to have abated considerably from the strictness of the old rule. And a late writer on dower, remarking upon the case of Stoughton vs. Leigh, (1 Taunt. 402,) says that it may be gleaned as the impression of the court, that in assigning dower by the sheriff, the one-third of the widow is to be ascertained by reference to a general estimate of the annual value of the whole land. And he adds, that the purposes of substantial justice may probably be better consulted by the adoption of this principle than by a strict adherence to the old rule requiring the sheriff to assign a third part of each denomination of property. {Park on Dower, 260.)

But whatever may be the law of England at this day, in reference to the mode of assigning dower in an estate consisting of several tracts or parcels, it cannot be doubted that in this state, at least since the act of 1816 “ respecting devises of lands, joint estates and dower,” an assignment of the dower wholly in one tract, as the third of all, is lawful, and may be a valid assignment, if approved by the Orphans’ Court. In many cases it would be very injurious to the interest both of the widow and the heir if this could not be done; and the act which gives jurisdiction of the subject to the Orphans’ Court, refers it to the discretion of the commissioners appointed to lay off dower in what manner it shall be laid off Whilst, therefore, the strictness of the old common law rule requiring that each tract shall be thirded is not enjoined by our act of assembly, where the circumstances of the estate require a different mode of assignment, or the interest and convenience of the parties concerned would be promoted thereby; that rule may yet be followed, where justice requires it. And this we apprehend to be the reason of the practice established in our courts of assigning dower out of the separate tracts as against the alienee of the husband; while they assign it, generally, out of the Whole estate as against the heir in cases of intestacy. The right to dower is derived from the act of assembly; it is the right of the widow to have “ the third part of all the lands and tenements whereof the husband was seised of an estate of inheritance at any time during the marriage,” to be “ assigned and laid off to her by the Orphans’ Court of the county where the land lies, upon her petition to the said court, by the like proceedings and in the same manner as is by law provided in the case of intestates estates.” But we have seen that in such cases a discretion is given to the commissioners, subject to the approval of the Orphans’ Court, to assign the dower altogether out of one tract; in separate parcels out of several tracts ; or a third part in value, having regard to quality and quantity, out of each tract. And though this latter mode may in some cases be prejudicial to the widow’s interests, it is damnum absque injuria, and is no violation of her right of dower as secured to her by the act of assembly. Ill cases, therefore, of intestacy, where the land descends to the heirs at law in coparcenary subject to the widow’s right of dower, the assignment of dower may be, and in most cases ought to be, out of the whole estate, without. special reference to the separate tracts or parcels of which the estate is composed; but where the husband in his lifetime has aliened any portion of the land, or the same has been sold for the payment of debts contracted by him, or where he has devised his lands by will, justice to the alienees, purchasers or devisees, in most cases requires that the dowress shall take her dower out of each several tract, and that the assignment should be made accordingly. Otherwise it might and often would so happen, that one alienee, purchaser or devisee, might have his whole land taken for dower, without redress; whilst another, who had purchased or taken subject to dower, would be entirely relieved of the incumbrance.

If these principles be correct, the assignment of dower in this case, being entirely out of the tract devised by John Holland to his two sons, Albert and David Holland, was prejudicial to their rights, and this might have afforded good ground of objection to its confirmation if they had chosen to except to it. But such assignment was not absolutely illegal; it was competent to the commissioners so to make it, and for the court so to approve of it. It was also competent to the two bi’others, Albert and David Holland, to consent to this mode of assignment, and waive any objection to it in favor of their four sisters, the devisees of the other tract. Being thus actually assigned and laid off by metes and bounds, Albert Holland, in pursuance of the authoi'ity given him in his father’s will, sold the farm out of which the dower had been so laid out at public sale subject thereto, giving full notice that such assignment had been made, and exhibiting to the bidders px-esent, and particularly to the purchase!’, Cornelius Coulter, a plot or survey of the premises, with the assignment of dower thereon as laid off by the commissionei-s.

Under these circumstances, we think the Ox'phans’ Court did right in refusing to set aside this assignment at the instance of a purchaser who had bought after the assignment of dower and expi’essly subject to it. To have set it aside on his application and thrown a portion of the dower on the other tract, would have been to give him more land than he had bought, and increase his interest in the purchase without any consideration. The deed to Coulter has not been brought up with the record, but we collect from the statement of facts that he purchased expressly subject to this very dower which had been assigned, and with full knowledge of what and how much had been assigned.

Cullen, for appellant. Wootten, for respondent.

We are, therefore, of opinion, that the decree of the Orphans’ Court ought to be affirmed.;

Judgment of affirmance, with costs.