The opinion of the court was delivered by
Redfield, J.
The first question, made by the defendant’s counsel in the present case, is, whether the bill is so framed, as to justify a decree in favor of the oratrix, of the character of that made by the court of chancery.
[257]*257The bill is undoubtedly framed with a view to compel the defendant to pay the whole mortgage upon the premises, and such is the prayer of the bill. But the facts upon which the chancellor decreed an apportionment of the mortgage between the oratrix and the defendant are substantially the same as those set forth in the bill. Indeed the answer, in effect, admits all the facts, upon which the oratrix founds her claim to have a decree for the whole against the defendant. I do not understand, that she, in her bill, founds her claim upon any express agreement of the defendant to pay the mortgage, but only, that he purchased subject to all the mortgages, and also to the widow’s dower. And all this is undeniably true, and is expressly stated in the oratrix’s deed to the defendant and in her return to the probate court, as well as in her advertisements for the sale. From all this the oratrix’s solicitor, in framing the bill, saw fit to deduce the conclusion, that the defendant was bound to pay the whole mortgage, and has made a special prayer to that effect, and also the general prayer for such relief, as equity and good conscience shall require and the bill and proof justify. This general prayer is all that is ever necessary in such a case, and has well been said, by eminent English chancellors, to be the best prayer in the world in such a case. I do not myself comprehend, how the general prayer for relief can well fail of being adequate to obtain all relief consistent with the general frame of the bill. The general frame of this bill contains all the facts in the case, and the very facts. The only controversy is in regard to the obligations and duties resulting from the relative position of the parties, and the general prayer is undoubtedly sufficient.
Some question is made in the argument, whether it was not necessary to have the proportion of the mortgage, which the oratrix should pay, determined by the probate court, before she could go into a court of chancery to compel contribution. This exception goes upon the ground, that, in this state, the probate court has the exclusive, jurisdiction of the assignment of dower; and to this extent I should consider the counsel for the defendant well founded, although in England and many of the American states the law is clearly otherwise. In England,' if the dowress is compelled to go into chancery to obtain a discovery of the title of the husband, or the title deeds, in the hands of the heir, the court will retain jurisdiction of the case, until it is ended, either in denying dower, or in [258]*258making a full and final assignment of the dower. Swain v. Previne, 5 Johns. Ch. R. 482, and cases cited. But in this state courts of chancery ordinarily, in matters rightfully pertaining to the court of probate, only interfere in aid of its jurisdiction, in matters not within the power of that court, and only to that extent, then remitting the case to that court. So that, if it were necessary to resort to a court of equity in this state to lay the foundation for the assignment of dower, I do not apprehend, that the court of equity would make the assignment, but they would remit the cáse to that court, to make the assignment. This is the course, which always has been pursued in this state in analogous cases,- by the reported determinations of this court. Morse v. Slason, 13 Vt. 296, S. C., 16 Vt. 319, and the reported case of the Heirs of Adams v. Adams et al., Adm’rs, 22 Vt. 50, show sufficiently the difference, between our practice and that of the English chancery courts, in taking matters wholly out of the hands of the ecclesiastical courts.
But it still remains to determine, whether the apportionment of this mortgage is any essential part of the assignment of dower. If the dowress claimed to have a special rule of apportionment, we should be inclined to say, that the probate court have the only power, existing in our law, to establish any such rule in her favor. But if they assign dower generally in an equity of redemption, without in any manner determining the proportion which the widow shall pay, in lessening the incumbrance, it is equivalent to saying, it shall be in proportion to her estate. Stevens v. Cooper, 1 Johns. Ch. R. 425. But as, in the present case, she cannot claim any advantage from any agreement made by the defendant at the time of sale, by parol, that he would pay the whole mortgage, — such contract, if any ever existed, of which we know nothing, being within the statute of frauds, — and as the mere fact, that the estate was purchased subject to the widow’s dower, does not seem sufficient to raise any special rule of apportionment, this case must, we think, stand upon the general rule of equity in such cases, except so far as the parties may have varied it by a contract executed at the time, — and which would seem probably to have been ratified by the probate court, in the settlement of the oratrix’s account; and, if not yet settled, she is liable, then, for any improper contract she may have made in the sale of the equity of redemption and the reversion of the widow’s dower.
It was argued, that the bill was premature, as the oratrix has not [259]*259paid the incumbrances; and it was attempted to be likened to the case of one surety bringing a bill against his co-surety. But this is the case of joint principals, and each being surety for the others, also. And the surety may always bring a bill against his principals, to be released from the debt, as soon as it becomes due. He could not before the debt was due; for until that time he is in no danger. That is the case here; the debt is due and the estate in danger, and if the defendant is liable, the bill is well brought in this respect.
We come, then, to the general question of the defendant’s liability to contribute to the payment of this mortgage. This is not strenuously questioned. The great controversy is as to the mode of computing the extent of the liability. The general rule of equity is, that all the estates concerned, whether defined by quantity of interest and duration, or by extent of territory, shall contribute according to their relative value at the time the contribution becomes obligatory, which is, when the debt falls due; — for until that, there is no power to compel payment, or contribution. If this mortgage did not become due for thirty years, or the interest, it might be very unequal for the dowress to throw the whole burden upon the owner of the reversion, or remainder; — but I do not see how, upon general principles of equity, such a result could be avoided.
The probate court might have some control over the matter, in making the assignment; but I do not see, how it could be done in a court of equity, before any thing was due. The tenant for life must be allowed quietly to enjoy the estate, I think. But when the debt becomes due, so that a right to have it apportioned accrues, the estates must bear the burden, according to their, relative value at that time. The decree of the chancellor, having assumed a medium time in this respect, is correct enough for all practical purposes doubtless.
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The opinion of the court was delivered by
Redfield, J.
The first question, made by the defendant’s counsel in the present case, is, whether the bill is so framed, as to justify a decree in favor of the oratrix, of the character of that made by the court of chancery.
[257]*257The bill is undoubtedly framed with a view to compel the defendant to pay the whole mortgage upon the premises, and such is the prayer of the bill. But the facts upon which the chancellor decreed an apportionment of the mortgage between the oratrix and the defendant are substantially the same as those set forth in the bill. Indeed the answer, in effect, admits all the facts, upon which the oratrix founds her claim to have a decree for the whole against the defendant. I do not understand, that she, in her bill, founds her claim upon any express agreement of the defendant to pay the mortgage, but only, that he purchased subject to all the mortgages, and also to the widow’s dower. And all this is undeniably true, and is expressly stated in the oratrix’s deed to the defendant and in her return to the probate court, as well as in her advertisements for the sale. From all this the oratrix’s solicitor, in framing the bill, saw fit to deduce the conclusion, that the defendant was bound to pay the whole mortgage, and has made a special prayer to that effect, and also the general prayer for such relief, as equity and good conscience shall require and the bill and proof justify. This general prayer is all that is ever necessary in such a case, and has well been said, by eminent English chancellors, to be the best prayer in the world in such a case. I do not myself comprehend, how the general prayer for relief can well fail of being adequate to obtain all relief consistent with the general frame of the bill. The general frame of this bill contains all the facts in the case, and the very facts. The only controversy is in regard to the obligations and duties resulting from the relative position of the parties, and the general prayer is undoubtedly sufficient.
Some question is made in the argument, whether it was not necessary to have the proportion of the mortgage, which the oratrix should pay, determined by the probate court, before she could go into a court of chancery to compel contribution. This exception goes upon the ground, that, in this state, the probate court has the exclusive, jurisdiction of the assignment of dower; and to this extent I should consider the counsel for the defendant well founded, although in England and many of the American states the law is clearly otherwise. In England,' if the dowress is compelled to go into chancery to obtain a discovery of the title of the husband, or the title deeds, in the hands of the heir, the court will retain jurisdiction of the case, until it is ended, either in denying dower, or in [258]*258making a full and final assignment of the dower. Swain v. Previne, 5 Johns. Ch. R. 482, and cases cited. But in this state courts of chancery ordinarily, in matters rightfully pertaining to the court of probate, only interfere in aid of its jurisdiction, in matters not within the power of that court, and only to that extent, then remitting the case to that court. So that, if it were necessary to resort to a court of equity in this state to lay the foundation for the assignment of dower, I do not apprehend, that the court of equity would make the assignment, but they would remit the cáse to that court, to make the assignment. This is the course, which always has been pursued in this state in analogous cases,- by the reported determinations of this court. Morse v. Slason, 13 Vt. 296, S. C., 16 Vt. 319, and the reported case of the Heirs of Adams v. Adams et al., Adm’rs, 22 Vt. 50, show sufficiently the difference, between our practice and that of the English chancery courts, in taking matters wholly out of the hands of the ecclesiastical courts.
But it still remains to determine, whether the apportionment of this mortgage is any essential part of the assignment of dower. If the dowress claimed to have a special rule of apportionment, we should be inclined to say, that the probate court have the only power, existing in our law, to establish any such rule in her favor. But if they assign dower generally in an equity of redemption, without in any manner determining the proportion which the widow shall pay, in lessening the incumbrance, it is equivalent to saying, it shall be in proportion to her estate. Stevens v. Cooper, 1 Johns. Ch. R. 425. But as, in the present case, she cannot claim any advantage from any agreement made by the defendant at the time of sale, by parol, that he would pay the whole mortgage, — such contract, if any ever existed, of which we know nothing, being within the statute of frauds, — and as the mere fact, that the estate was purchased subject to the widow’s dower, does not seem sufficient to raise any special rule of apportionment, this case must, we think, stand upon the general rule of equity in such cases, except so far as the parties may have varied it by a contract executed at the time, — and which would seem probably to have been ratified by the probate court, in the settlement of the oratrix’s account; and, if not yet settled, she is liable, then, for any improper contract she may have made in the sale of the equity of redemption and the reversion of the widow’s dower.
It was argued, that the bill was premature, as the oratrix has not [259]*259paid the incumbrances; and it was attempted to be likened to the case of one surety bringing a bill against his co-surety. But this is the case of joint principals, and each being surety for the others, also. And the surety may always bring a bill against his principals, to be released from the debt, as soon as it becomes due. He could not before the debt was due; for until that time he is in no danger. That is the case here; the debt is due and the estate in danger, and if the defendant is liable, the bill is well brought in this respect.
We come, then, to the general question of the defendant’s liability to contribute to the payment of this mortgage. This is not strenuously questioned. The great controversy is as to the mode of computing the extent of the liability. The general rule of equity is, that all the estates concerned, whether defined by quantity of interest and duration, or by extent of territory, shall contribute according to their relative value at the time the contribution becomes obligatory, which is, when the debt falls due; — for until that, there is no power to compel payment, or contribution. If this mortgage did not become due for thirty years, or the interest, it might be very unequal for the dowress to throw the whole burden upon the owner of the reversion, or remainder; — but I do not see how, upon general principles of equity, such a result could be avoided.
The probate court might have some control over the matter, in making the assignment; but I do not see, how it could be done in a court of equity, before any thing was due. The tenant for life must be allowed quietly to enjoy the estate, I think. But when the debt becomes due, so that a right to have it apportioned accrues, the estates must bear the burden, according to their, relative value at that time. The decree of the chancellor, having assumed a medium time in this respect, is correct enough for all practical purposes doubtless. The estate of the dowress, then, upon general principles, should share that proportion of all the mortgages upon both the tavern stand and the farm, which its value has to the whole value of the land. By this we understand, that, aside from any contract of the parties, or order of the probate court, as to the apportionment of these mortgages, one third should have been placed upon the widow’s thirds, and two thirds upon the other portions.
But we think it was competent for the defendant and the widow and the mortgagees, who, at the time of the sale, together repre[260]*260sented all parties in interest, to agree upon a different mode of apportionment ; and although by parol merely, and so of no validity, while it remained executory, yet, being executed, it would become binding and irrevocable. And such we understand to be the effect of the testimony and the finding of the chancellor, — that it was agreed, that all the incumbrances, except the present one of Mr. Gadcomb, should be put upon and paid by the farm; and by this agreement, executed, the parties must now stand. It seems very probable, that at the time the defendant might have understood, that all the mortgages must be paid by him, or by the sale of the estate, before he could take any benefit of his estate; but the chancellor found no such fact, and the proof would scarcely justify such a conclusion, perhaps. But to the extent of exonerating the tavern stand from all the mortgages except this, the entire testimony leaves no doubt. This, indeed, is not essentially different from the equitable apportionment, except that it puts something less than one third, between one and two hundred dollars, upon the tavern stand. It may be said the widow, or administratrix, had no authority to make a contract of this kind before the sale, to the disadvantage of the estate, and which must lessen the price of the sale. That may be true; but of this the defendant cannot complain, if he bought with this expectation, as all the evidence shows very clearly that he did.
The administratrix may be liable for mal-administration, or to account for what she saved to herself by the contract of apportionment ; but this is a matter, which can only be set right on passing her account in the probate court. If that court ratify the sale upon these terms, it may be equivalent to a special decree determining this rate of apportionment of the mortgages, as to the widow’s dower.
The only remaining question is as to the report of the commissioners and the detail of the decree. The interlocutory decree of reference to the commissioners seems correct; but it seems to us, that their report is inconsistent with itself, to such an extent, that it ought to be re-committed. It is certain, that if the net yearly value of the estate is only $32, the estate is worth less than the mortgage. And whether the expectancy of the wiSow can be so much as they found it, and if it be so, whether the value of her estate would not be greater than what they found it, in proportion to the reversion, or [261]*261remainder, are matters which require, we think, to be examined. And we think, it is not competent for this court, or the court of chancery, in this case, to prescribe any rule of repairs for the estate. I understand the chancellor, that he had no intention to limit it upwards ; — we think, it should not be limited either way.
I do not think the American courts have generally required any tenant for life, certainly not a dowress, to keep down the interest. In the present case, according to the report of the commissioners, she being already bound to repair, that would be a most, hopeless office. But tenant in tail was never bound to pay interest; and I see no reason, why a dowress of an equity of redemption should. If she were endowed of land bearing an annual rent, like our public rights, she might be bound to pay that, in order to enjoy the estate. All the cases upon this subject, which have been named, go upon the ground, that she is bound to contribute to remove incumbrances, by way of mortgage, according to the present cash value of her estate, at the time of the apportionment. Van Vronker v. Eastman, 7 Met. 157, seems clearly to go upon the general ground stated above.
The case of Foster v. Hilliard, 1 Story’s R. 77, assumes, upon great consideration, to settle the point, that, upon a sale of an estate, when there is a subsisting life interest and a remainder, the avails of the sale are to be divided between the tenant for life and the remainder-man, in proportion to the value of their respective interests. And it is expressly there laid down, that in such a case incumbrances upon the estate are to be borne in the same way. The sale in this case was by consent of all parties interested, but without determining any rate of distribution of the avails. And it is there held that, notwithstanding the death of the tenant for life after the sale, yet the rate of division is to be the relative value of their estate at the time of sale, calculating according to the usual table of life expectancy, according to Wigglesworth, or the Carlisle tables, — which latter seem to be, at present, more in use, perhaps.
The decree of the chancellor is reversed, and the case remanded, with instructions to pass a decree for the oratrix upon the general principles determined by the former decisions of the chancellor, correcting or verifying the report of the commissioners, omitting the provision as to repairs.