Park, C. J.
Lucy M. Hewitt was the wife of one Welles, and was living with him as such at the time of his death. He died seised and possessed of real estate in his own right. Ro provision, by way of jointure, for the support of his wife had been made by him before their marriage, nor any settlement in lieu of dower had been made in contemplation of marriage. These facts are undisputed in the case.
In these circumstances the appellant brought her application to the probate court for the district of Hartford to have dower assigned and set out to her in the real estate of her late husband. The probate court refused the application, and an appeal was taken to the Superior Court. [34]*34In that court the appellees filed a cross-complaint by way of counter-claim and equitable relief, setting forth such facts as would, in a court of chancery, having independent equity powers, estop Mrs. Hewitt from claiming dower in her late husband’s estate. And they likewise offered to prove the same facts for the same purpose on the trial of the case. The appellant moved the court to strike the cross-complaint from the record; and further objected to the appellees proving the facts claimed for the purposes stated. The court reserved the questions for the advice of this court.
The principal facts stated in the appellees’ cross-complaint, and which they offered to prove, are the following: That an application was made to the probate court for an order for the sale of the lands in which the appellant claims the right of dower, and made at the request of Mrs. Hewitt, the appellant; that the court refused to grant the order unless, she would relinquish her claim for dower; that she agreed so to do, and the order was thereupon granted; that the lands were sold to the appellees, Mrs. Hewitt receiving a portion of the purchase money in payment for her right of dower; that she was present at the sale, and authorized and directed the auctioneer to state before the sale in her behalf that the purchasers would receive a title free from all claim of dower on her part; that the same statement was made to the appellees before the sale; and that relying on these representations the appellees purchased the lands, paying full value for them, and paying a much larger price than they otherwise would have done.
These are the principal facts of the case, and the question is, whether a court of probate, in the settlement of an estate, is vested with such equity powers that it can apply an estoppel in a controversy between the widow, on the one part, regarding her right of dower in her deceased husband’s estate, and strangers to the estate on the other, having no interest whatever in it except as purchasers of land belonging to it.
[35]*35It is certainly true in this case, that, if the Superior Court can entertain the cross-complaint filed in that court, and grant the prayer thereof, the same could have been done by the probate court, when the cause was before that court, if a similar cross-complaint had there been filed; for the Superior Court takes the case as it stood before the probate court, and simply determines whether or not that court erred in its decision. The cases of Davis’s Appeal from Prolate, 39 Conn., 395, and Strong v. Strong, 8 Conn., 408, and many other cases that might be cited, fully establish the doctrine that the Superior Court sitting for the trial of a case like this, takes the place of the probate court from which it came, and can do no more than could have been done by that court.
But it is claimed that the Practice Act authorizes the Superior Court to entertain jurisdiction of the cross-complaint in this case. But the section of that act relied upon simply allows courts, that have law and equity powers to administer both in the same case. This court in Harrall v. Leverty, 50 Conn., 46, says that “ it was not the intention of the Practice Act to give any wider range to equitable defences and cross-suits than was before allowed by the settled chancery practice.”
The other sections of the Practice Act referred to clearly do not apply to appeals from probate courts.
It is further said by the appellees, that courts of probate have equity powers to be administered in all cases where equitable considerations affect the matter with which they are dealing; that if application is made for the assignment of dower, the court must be first satisfied that the applicant possesses the statutory requisites without which no right of dower exists; and that this power of inquiry is not exhausted, nor is this duty discharged, until the court has satisfied itself that there is no objection, equitable or legal, to the assignment of dower; for having once acquired jurisdiction to determine the right of the party to such assignment, it becomes, as to that matter, vested with the [36]*36•amplest chancery powers to do full justice between all the .parties before it.
No doubt courts of probate should be reasonably satisfied that an applicant for the assignment of dower possesses the statutory requisites before it becomes its duty to make the assignment. But the assignment of dower does not establish the title in the applicant to dower in the lands assigned, any more than the setting off of lands on an execution establishes the title to the lands in the execution creditor. All that is done in either case is, simply to designate the lands in which dower exists in one case, if it exists at all, and to satisfy the debt in the other if title by the levy is acquired, which depends upon the execution debtor being the owner of the lands set off. If the title in either case is disputed, further proceedings before another court would be necessaiy to determine it.
No question is made in this case but that Mrs. Hewitt was once entitled to dower in the lands of her late husband. Suppose, while she was thus entitled, dower had been assigned and set out to her, and afterwards the transactions claimed to have occurred in this case had taken place. Could any proceeding be brought by the appellees to the probate court to set aside or destroy her right of dower ? And if not, how can it be done here ? A widow’s right to dower exists and is as perfect before dower is assigned to her as afterwards, the only difference being, that before the assignment it is attached to all the land, and afterwards to a particular portion of it. The effort here is to set aside by the- probate court Mrs. Hewitt’s right to dower which once existed, which would be doing the same thing in effect as in the case supposed.
Again, suppose, instead of the transactions which are claimed to have occurred in this case, the claim was that Mrs. Hewitt had deeded her right of dower to the appellees, and that therefore dower should not be assigned to her. Suppose she should claim in that case that what purported to bé a deed was obtained from her by fraud,- or duress, or was executed by mistake, in the belief that she was exe[37]*37cubing one instrument when, in fact, she was executing another. Must a probate court determine all these questions before the lands can be designated in which she has dower, if she has it at all? If this is so the court of probate would be assuming the right to determine her title to dower. But Golds Case, Kirby, 100, and Homer's Appeal from Probate, 85 Conn., 113, hold that that court can not. settle matters of title.
But the appellees insist that the probate court can try and determine the equitable title of Mrs.
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Park, C. J.
Lucy M. Hewitt was the wife of one Welles, and was living with him as such at the time of his death. He died seised and possessed of real estate in his own right. Ro provision, by way of jointure, for the support of his wife had been made by him before their marriage, nor any settlement in lieu of dower had been made in contemplation of marriage. These facts are undisputed in the case.
In these circumstances the appellant brought her application to the probate court for the district of Hartford to have dower assigned and set out to her in the real estate of her late husband. The probate court refused the application, and an appeal was taken to the Superior Court. [34]*34In that court the appellees filed a cross-complaint by way of counter-claim and equitable relief, setting forth such facts as would, in a court of chancery, having independent equity powers, estop Mrs. Hewitt from claiming dower in her late husband’s estate. And they likewise offered to prove the same facts for the same purpose on the trial of the case. The appellant moved the court to strike the cross-complaint from the record; and further objected to the appellees proving the facts claimed for the purposes stated. The court reserved the questions for the advice of this court.
The principal facts stated in the appellees’ cross-complaint, and which they offered to prove, are the following: That an application was made to the probate court for an order for the sale of the lands in which the appellant claims the right of dower, and made at the request of Mrs. Hewitt, the appellant; that the court refused to grant the order unless, she would relinquish her claim for dower; that she agreed so to do, and the order was thereupon granted; that the lands were sold to the appellees, Mrs. Hewitt receiving a portion of the purchase money in payment for her right of dower; that she was present at the sale, and authorized and directed the auctioneer to state before the sale in her behalf that the purchasers would receive a title free from all claim of dower on her part; that the same statement was made to the appellees before the sale; and that relying on these representations the appellees purchased the lands, paying full value for them, and paying a much larger price than they otherwise would have done.
These are the principal facts of the case, and the question is, whether a court of probate, in the settlement of an estate, is vested with such equity powers that it can apply an estoppel in a controversy between the widow, on the one part, regarding her right of dower in her deceased husband’s estate, and strangers to the estate on the other, having no interest whatever in it except as purchasers of land belonging to it.
[35]*35It is certainly true in this case, that, if the Superior Court can entertain the cross-complaint filed in that court, and grant the prayer thereof, the same could have been done by the probate court, when the cause was before that court, if a similar cross-complaint had there been filed; for the Superior Court takes the case as it stood before the probate court, and simply determines whether or not that court erred in its decision. The cases of Davis’s Appeal from Prolate, 39 Conn., 395, and Strong v. Strong, 8 Conn., 408, and many other cases that might be cited, fully establish the doctrine that the Superior Court sitting for the trial of a case like this, takes the place of the probate court from which it came, and can do no more than could have been done by that court.
But it is claimed that the Practice Act authorizes the Superior Court to entertain jurisdiction of the cross-complaint in this case. But the section of that act relied upon simply allows courts, that have law and equity powers to administer both in the same case. This court in Harrall v. Leverty, 50 Conn., 46, says that “ it was not the intention of the Practice Act to give any wider range to equitable defences and cross-suits than was before allowed by the settled chancery practice.”
The other sections of the Practice Act referred to clearly do not apply to appeals from probate courts.
It is further said by the appellees, that courts of probate have equity powers to be administered in all cases where equitable considerations affect the matter with which they are dealing; that if application is made for the assignment of dower, the court must be first satisfied that the applicant possesses the statutory requisites without which no right of dower exists; and that this power of inquiry is not exhausted, nor is this duty discharged, until the court has satisfied itself that there is no objection, equitable or legal, to the assignment of dower; for having once acquired jurisdiction to determine the right of the party to such assignment, it becomes, as to that matter, vested with the [36]*36•amplest chancery powers to do full justice between all the .parties before it.
No doubt courts of probate should be reasonably satisfied that an applicant for the assignment of dower possesses the statutory requisites before it becomes its duty to make the assignment. But the assignment of dower does not establish the title in the applicant to dower in the lands assigned, any more than the setting off of lands on an execution establishes the title to the lands in the execution creditor. All that is done in either case is, simply to designate the lands in which dower exists in one case, if it exists at all, and to satisfy the debt in the other if title by the levy is acquired, which depends upon the execution debtor being the owner of the lands set off. If the title in either case is disputed, further proceedings before another court would be necessaiy to determine it.
No question is made in this case but that Mrs. Hewitt was once entitled to dower in the lands of her late husband. Suppose, while she was thus entitled, dower had been assigned and set out to her, and afterwards the transactions claimed to have occurred in this case had taken place. Could any proceeding be brought by the appellees to the probate court to set aside or destroy her right of dower ? And if not, how can it be done here ? A widow’s right to dower exists and is as perfect before dower is assigned to her as afterwards, the only difference being, that before the assignment it is attached to all the land, and afterwards to a particular portion of it. The effort here is to set aside by the- probate court Mrs. Hewitt’s right to dower which once existed, which would be doing the same thing in effect as in the case supposed.
Again, suppose, instead of the transactions which are claimed to have occurred in this case, the claim was that Mrs. Hewitt had deeded her right of dower to the appellees, and that therefore dower should not be assigned to her. Suppose she should claim in that case that what purported to bé a deed was obtained from her by fraud,- or duress, or was executed by mistake, in the belief that she was exe[37]*37cubing one instrument when, in fact, she was executing another. Must a probate court determine all these questions before the lands can be designated in which she has dower, if she has it at all? If this is so the court of probate would be assuming the right to determine her title to dower. But Golds Case, Kirby, 100, and Homer's Appeal from Probate, 85 Conn., 113, hold that that court can not. settle matters of title.
But the appellees insist that the probate court can try and determine the equitable title of Mrs. Hewitt to dower, as it exists between her and third parties, and should do so before the court assigns her dower, on the ground that such courts administer equity in some cases, and that this is one of the cases where it has this power. But the equity which a court of probate can administer must grow out of, and be inseparably connected with, the matter the court is acting upon. The court was called upon to assign and set out dower to Mrs. Hewitt. It is admitted she had the statutory requisites. Setting out dower does not affect in the least her title to dower in the lands designated. If she has done things which in equity estop her from claiming dower, the equity does not grow out of, nor is it connected with, the matter that the court has in hand, the mere designating of the lands in which she is to hold her dower. It grew out of a purchase of the dower lands after her dower had attached. The case of Selleck v. Selleck, which appears in a note to Andrews v. Andrews, 8 Conn., 86, is decisive of this question.
Again, courts of probate in the settlement of estates order a distribution of them. They distribute them among the persons originally interested in them. If an heir sells his interest in the estate before distribution, distribution is made to him in the same way as if no sale had been made. If a widow sells her right of dower before it is assigned to her, it is set out to her notwithstanding. Setting out dower is an act pertaining to the distribution of the estate. The appellees are outside parties. They have no interest in the estate except as purchasers. They bring this controversy [38]*38before the court and object to the setting out of dower to the widow on the ground solely of equity pertaining to them in their purchase. Such equity does not grow out of the distribution of the estate, neither does it arise between the persons originally entitled to it, but grows out of a purchase by strangers to the estate. Such an equRp cannot be administered by the probate court.
We advise the Superior Court to dismiss the cross-complaint ; that the evidence offered by the appellees is inadmissible ; that the answer is insufficient; and to reverse the decree of the court of probate.
In this opinion the other judges concurred; except Granger, J., who dissented.