Leggett v. Steele

15 F. Cas. 248, 4 Wash. C. C. 305

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: October 15, 1822
• Status: Published

Opinion

WASHINGTON, Circuit Justice.

This cause came on, the 21st day of October, in the year 1S22, to be heard upon the bill, answer, replication, depositions and exhibits, and the report of the master of the 23d of March, 1822. to which no exception has been filed, and was argued by counsel, whereupon the court being of opinion that the plaintiff is entitled to dower in the tract of land containing four hundred and thirty-two acres and three quarters, in the bill and answer mentioned, and to have the same laid off to her by metes and bounds, in such parts of the said tract as shall exclude the improvements made upon the said tract by the defendant, and by Genei'al Humpton under whom he claims; provided the same can be conveniently done; and if it can not, then to have it assigned to her by metes and bounds out of the whole tract, according to the value thereof at the time it was aliened by the husband of the plaintiff; it is therefore decreed and ordered, that the marshal of this district do lay off and allot to the plaintiff, by metes and bounds, one third part of the tract of land containing four hundred and thirty-two acres and three quarters, situate in the township of West Bradford, in Chester county, in this state, in such parts of the said tract as shall exclude the improvements made upon the said tract by the defendant, and by the said Hump-ton under whom he claims, provided the same can be conveniently done, and if it can not, then that he assign to her by metes and bounds, one third part of the said tract of land, including the improvements, but according to the value thereof on the 28th day of October in the year 1776, when the said land was sold and conveyed by the husband of the plaintiff to P. Marchinton.

And it appearing by the report of the master, that the rents and profits of the said tract of land, estimating the same without regard to the said improvements, would be one fifth less in value than what they really are in consequence of said improvements, it is further decreed and ordered, that the same proportion be observed in allotting the dower of the plaintiff, in case the same should be so laid off as to include the said improvements. And it is further decreed and ordered, that the said marshal do employ, if necessary, a fit person to survey and lay off her dower to the plaintiff as aforesaid; and that he make report to this court, at its next session, of his proceedings herein, in order to a final decree; and the court reserves till then, the questions of damages, rents and profits since the institution of this suit, and costs.

At a subsequent day of the term, Rawle mentioned the subject of damages (the plaintiff having died since the hearing), and cited 2 Sanad. 45, note 4, also Jenk. 45, in which it is laid down expressly, that if the husband alien in his life time, the widow may recover damages from the time of her demand of dower, but not from any prior time. He also stated, upon the authority of letters from eminent counsel in New Jersey and Maryland, that such had been tlie course of the decisions in those states, except that, in the latter state, they are allowed from the time of the bill filed. He cited also 2 Brown, C. C. 620. As to costs, they follow damages.

The counsel compromised, upon the ground of the defendant paying one third of the rents and profits (as estimated by the master) of the land, in its unimproved state, from the time the bill was filed; but without costs.