R. W. WALKER, <7.
The privilege conferred upon the widow by section 1359 of the Code, to retain possession of the dwelling-house where her husband most usually resided next before his death, until her dower is assigned her, free from the payment of rent, does not attach to any premises except those whereof the wife is dowable. — Harrison v. Boyd, in MSS.; Vorlckner v. Hudson, 1 Sand. Sup. Ct. Rep. 215 ; Coke’s 2d Institute, vol. 1, p. 17. In this case, the husband had sold the dwelling-house in which he resided next before his death, some time prior to that event, andhis wife had joined in the sale, relinquishing her dower therein. The statutory privilege of the widow, therefore, did not attach to the property. Hence, the question, whether the widow’s enjoyment of her quarantine has the effect of destroying her right to a third of the rents and profits which, during the continuance of her possession of the mansion-house, may accrue from the other real estate of her husband subject to her dower, does not arise in this case. That question is, however, decided adversely to the view urged by appellants’- counsel, in Perrine v. Armstrong, at the present term.
[2.] There can be no doubt that the widow is entitled to recover in equity, against the heirs, the rents or mesne profits accruing from the lands assigned her as dower, from the death of her husband, to the time when [539]*539her dower was allotted. — Beavers v. Smith, 11 Ala. 32 ; Smith v. Smith, 13 Ala. 334. ¥e need not now inquire whether this right exists by virtue of the statute of Merton, or by analogy to it, or is allowed upon the ground of title. For the purposes of this opinion, it is enough that the right exists. Upon this subject, see 4 Kent, 70; 1 Roper H. & W. 453-4; Curtis v. Curtis, 2 Brown’s Ch. 491; Dormer v. Fortescue, 3 Atk. 142; Keith v. Trapier, 1 Bailey’s Eq. 64 ; Sharp v. Morris, 27 Miss. 733.
[3.] The jurisdiction of the probate court extends no further than the allotment of dower by metes and bounds. It has no authority to award to the widow damages for mesne profits. The court of chancery is alone competent to extend to her that relief. — Smith v. Smith, 13 Ala. 336. The right of a widow, whose dower has been assigned by the probate court, to proceed afterwards in equity for the mesne profits accruing before the assign-ant, is distinctly recognized in Turner & Sharp v. Morris, 27 Miss. 737; and we see no good reason for questioning it. See, also, 1 Story’s Eq. § 626; Damall v. Hill, 12 G. & J. 388 ; Sellman v. Bowen, 8 G. & J. 50.
[4.] Section 1372 of the Code provides, that “ all suits or proceedings for dower must be commenced within three years after the death of the husband, and not after.” Where dower has been allotted by the probate court, we do not think that a bill in chancery, afterwards filed by the widow, for the recovery of the mesne profits accruing before the assignment, can be considered “a suit or proceeding for dower,” in the sense of this section of the Code. That section relates exclusively to suits or proceedings having for their object the recovery of that estate for life, in the real estate of the husband, which is denominated the wife’s dower. Such proceedings do not necessarily or usually give the dowress her mesne profits, and her remedy for the recovery of these was not intended to be affected by the section of the Code above quoted. By analogy to the statute which provides that an action for the use and occupation of laud must be brought within six years after the accrual of the cause of action, (Code, § 2477,) the widow’s remedy in chancery for the [540]*540recovery of mesne profits is subject to the same limitation. In the present case, the bill was filed within less than six years after the death of the husband; so that it is unnecessary for us to inquire, whether the limitation begins-to run against her from the death of her husband, the accrual of the rents, or the allotment of her dower.— Tarleton v. Goldthwaite, 23 Ala. 346.
[5 — 7.] The appellants claim, that they are entitled to have deducted from the mesne profits of the real estate assigned as the widow’s dower, the value of the rent of a certain house, called the “Bank house,” in which she resided for about two years after her husband’s death; and also the hire of certain slaves belonging to the estate, which, it is alleged, remained in the widow’s possession for about the same length of time.
The complainant, on the death of her husband in September, 1853, was left with her family in the residence of the deceased, which, however, he had previously sold, and in which she had, at his request, relinquished her dower. The evidence shows, that the complainant relinquished her dower in this property reluctantly, and only on the promise that she might continue to occupy it, as a residence, until the 1st November, 1853, (at which time it was stipulated that the purchaser should take possession,) and on the further promise from her husband that he would procure and fit up for her a finer residence in the city. The evidence tends to show, that the “Bank house” (with the rent of which the appellants now seek to charge Mrs. Meek) was the finer residence thus promised by the husband to the wife, as a consideration for her relinquishment of her dower in the other property; and that the object of Mr. Blatter in selling the Government-street house, was to use the purchase-money on the Bank house. It is shpvvn that, at the time of his death, he had made arrangements to reside during the next year in the “Bank house,” and that he was then engaged at great expense in fitting it up as a future residence for his family. The widow remained in the house occupied by her husband at the time of his death, until the time agreed on — the 1st November — and then removed to the [541]*541“Bank house.” Here she continued to reside with her three children, and the negroes referred to ; and the evidence convinces us, that the residence and the slaves were kept, with the knowledge and approbation of the administrator, for the use of the whole family. During the residence of the complainant, with her children, and the family negroes of her husband, iu this house, the ■administrator frequently declared, that “ he intended the family should all live tog-ether until Mrs. Slatter was married,” and that he meant to carry out his brother’s t wish that the family should occupy the “Bank house,” and he wished them to do so. The evidence shows that no board was charged the children, and that the household expenses were paid in gross by the administrator; and it strongly tends to establish that it was neither the understanding nor expectation of either the administrator or the widow, that she was to be charged with the hire of the negroes. Some of the negroes the widow had no use for about the house, and requested the administrator to hire them out; but he declined to do so, and desired her to keep them.
If Mrs. Meek (then Mrs. Slatter) had not relinquished her dower in the house in which her husband died,'she would have been entitled to the possession of the same, * free of rent,’ until her dower was assigned her. As already stated, she was unwilling to relinquish her dower in that house ; and a part of the consideration on which she did so, was the promise of her husband that he -would fit up for her a finer residence in the city, which she might occupy after the 1st November. The “ Bank house” appears to have been fitted up by Mr.
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R. W. WALKER, <7.
The privilege conferred upon the widow by section 1359 of the Code, to retain possession of the dwelling-house where her husband most usually resided next before his death, until her dower is assigned her, free from the payment of rent, does not attach to any premises except those whereof the wife is dowable. — Harrison v. Boyd, in MSS.; Vorlckner v. Hudson, 1 Sand. Sup. Ct. Rep. 215 ; Coke’s 2d Institute, vol. 1, p. 17. In this case, the husband had sold the dwelling-house in which he resided next before his death, some time prior to that event, andhis wife had joined in the sale, relinquishing her dower therein. The statutory privilege of the widow, therefore, did not attach to the property. Hence, the question, whether the widow’s enjoyment of her quarantine has the effect of destroying her right to a third of the rents and profits which, during the continuance of her possession of the mansion-house, may accrue from the other real estate of her husband subject to her dower, does not arise in this case. That question is, however, decided adversely to the view urged by appellants’- counsel, in Perrine v. Armstrong, at the present term.
[2.] There can be no doubt that the widow is entitled to recover in equity, against the heirs, the rents or mesne profits accruing from the lands assigned her as dower, from the death of her husband, to the time when [539]*539her dower was allotted. — Beavers v. Smith, 11 Ala. 32 ; Smith v. Smith, 13 Ala. 334. ¥e need not now inquire whether this right exists by virtue of the statute of Merton, or by analogy to it, or is allowed upon the ground of title. For the purposes of this opinion, it is enough that the right exists. Upon this subject, see 4 Kent, 70; 1 Roper H. & W. 453-4; Curtis v. Curtis, 2 Brown’s Ch. 491; Dormer v. Fortescue, 3 Atk. 142; Keith v. Trapier, 1 Bailey’s Eq. 64 ; Sharp v. Morris, 27 Miss. 733.
[3.] The jurisdiction of the probate court extends no further than the allotment of dower by metes and bounds. It has no authority to award to the widow damages for mesne profits. The court of chancery is alone competent to extend to her that relief. — Smith v. Smith, 13 Ala. 336. The right of a widow, whose dower has been assigned by the probate court, to proceed afterwards in equity for the mesne profits accruing before the assign-ant, is distinctly recognized in Turner & Sharp v. Morris, 27 Miss. 737; and we see no good reason for questioning it. See, also, 1 Story’s Eq. § 626; Damall v. Hill, 12 G. & J. 388 ; Sellman v. Bowen, 8 G. & J. 50.
[4.] Section 1372 of the Code provides, that “ all suits or proceedings for dower must be commenced within three years after the death of the husband, and not after.” Where dower has been allotted by the probate court, we do not think that a bill in chancery, afterwards filed by the widow, for the recovery of the mesne profits accruing before the assignment, can be considered “a suit or proceeding for dower,” in the sense of this section of the Code. That section relates exclusively to suits or proceedings having for their object the recovery of that estate for life, in the real estate of the husband, which is denominated the wife’s dower. Such proceedings do not necessarily or usually give the dowress her mesne profits, and her remedy for the recovery of these was not intended to be affected by the section of the Code above quoted. By analogy to the statute which provides that an action for the use and occupation of laud must be brought within six years after the accrual of the cause of action, (Code, § 2477,) the widow’s remedy in chancery for the [540]*540recovery of mesne profits is subject to the same limitation. In the present case, the bill was filed within less than six years after the death of the husband; so that it is unnecessary for us to inquire, whether the limitation begins-to run against her from the death of her husband, the accrual of the rents, or the allotment of her dower.— Tarleton v. Goldthwaite, 23 Ala. 346.
[5 — 7.] The appellants claim, that they are entitled to have deducted from the mesne profits of the real estate assigned as the widow’s dower, the value of the rent of a certain house, called the “Bank house,” in which she resided for about two years after her husband’s death; and also the hire of certain slaves belonging to the estate, which, it is alleged, remained in the widow’s possession for about the same length of time.
The complainant, on the death of her husband in September, 1853, was left with her family in the residence of the deceased, which, however, he had previously sold, and in which she had, at his request, relinquished her dower. The evidence shows, that the complainant relinquished her dower in this property reluctantly, and only on the promise that she might continue to occupy it, as a residence, until the 1st November, 1853, (at which time it was stipulated that the purchaser should take possession,) and on the further promise from her husband that he would procure and fit up for her a finer residence in the city. The evidence tends to show, that the “Bank house” (with the rent of which the appellants now seek to charge Mrs. Meek) was the finer residence thus promised by the husband to the wife, as a consideration for her relinquishment of her dower in the other property; and that the object of Mr. Blatter in selling the Government-street house, was to use the purchase-money on the Bank house. It is shpvvn that, at the time of his death, he had made arrangements to reside during the next year in the “Bank house,” and that he was then engaged at great expense in fitting it up as a future residence for his family. The widow remained in the house occupied by her husband at the time of his death, until the time agreed on — the 1st November — and then removed to the [541]*541“Bank house.” Here she continued to reside with her three children, and the negroes referred to ; and the evidence convinces us, that the residence and the slaves were kept, with the knowledge and approbation of the administrator, for the use of the whole family. During the residence of the complainant, with her children, and the family negroes of her husband, iu this house, the ■administrator frequently declared, that “ he intended the family should all live tog-ether until Mrs. Slatter was married,” and that he meant to carry out his brother’s t wish that the family should occupy the “Bank house,” and he wished them to do so. The evidence shows that no board was charged the children, and that the household expenses were paid in gross by the administrator; and it strongly tends to establish that it was neither the understanding nor expectation of either the administrator or the widow, that she was to be charged with the hire of the negroes. Some of the negroes the widow had no use for about the house, and requested the administrator to hire them out; but he declined to do so, and desired her to keep them.
If Mrs. Meek (then Mrs. Slatter) had not relinquished her dower in the house in which her husband died,'she would have been entitled to the possession of the same, * free of rent,’ until her dower was assigned her. As already stated, she was unwilling to relinquish her dower in that house ; and a part of the consideration on which she did so, was the promise of her husband that he -would fit up for her a finer residence in the city, which she might occupy after the 1st November. The “ Bank house” appears to have been fitted up by Mr. Slatter, and after his death occupied by his widow, in pursuance of this agreement.- It is an admitted fact, that in this latter property the widow was not entitled to dower, for the reason that her husband had not in his life-time either the legal or a perfect equitable title thereto. If, therefore, Mrs. Meek is now to be charged with the rent of the “ Bank house,” there has been a failure of the consideration on which she agreed to relinquish her dower in the other property. Her occupancy of the “Bank house” was [542]*542in pursuance of the contract between her and her husband ; and this, we think, is a full answer to the claim made against her for the rents of the property during such occupancy. — See Andrews v. Andrews, 28 Ala. 432.
The objection, that the contract between Mr. and Mrs. Slatter was within the statute of frauds, cannot, if well founded, now avail. Where the contract has been in fact completely executed on both sides, the rights, duties and obligations of the parties, resulting from such performanee, stand unaffected by the statute. — Browne on Stat. Frauds, § 116.
In reference to some, if not all of the slaves alluded to, the evidence set out in the record tends to show, that Mrs. Meek’s possession of them must be considered as having been held under a gratuitous bailment from the administrator. This being so, she would, perhaps, be chargeable in a court of law, at the suit of an administrator de bonis non, for their hire. — Lawson v. Lay, 24 Ala. 184 ; Hall v. Evans, at the present term. And it may be that, on a bill filed by the distributees, or other parties interested, for the final settlement of the estate, a court of equity would make her account for the value of the services of these slaves. But we think it clear, that the defendants in this suit have no right to set off the hire of the slaves, against the mesne lorojits of the real estate to which the dowress is entitled. There is no cross bill, seeking a settlement of the entire administration, and a distribution of the estate. It may be, that the share of the personal estate, to which Mrs. Meek is entitled, may exceed the value of the hire of the negroes during the time they remained in her possession. For aught that we know, too, Mrs. Holly may have received advancements in the life-time of her father to such an extent that, on a final settlement, she would be entitled to no part of the hire of these slaves. Again, the whole of this fund may be required to pay off the debts of the estate. Moreover, supposing that Mrs. Meek could, by any proceeding, be made to account for the hire of the slaves, it may be made a question, whether the distributees would not be bound in the first instance to exhaust [543]*543their remedies against the administrator and his sureties; for an administrator, who gratuitously bails the slaves of the estate to a third person, is guilty of a conversion,and renders himself liable to the distributees for the hire of the slaves during the continuance of such bailment.— Lawson v. Lay, 24 Ala. 184. Without, however, stopping to consider any of the questions here suggested, it is obvious from what has been said, that the chancellor did not err, in refusing to deduct from the mesne profits to which the widow was entitled, either the rent of the Bank house, or the hire of the slaves referred to.
[8.] We do not think that Mrs. Holly is a purchaser, within the meaning of the rule which exempts the alienees of the husband from liability for any mesne profits except such as accrue after the demand of, or institution of suit for dower by the widow. The probate court has no jurisdiction to allot dower in any land except that of which the husband died seized. — Thrasher v. Pinckard’s Heirs, 23 Ala. 616. Holly and Wife were parties to the proceedings in the probate court; and the decree of that court is, perhaps, conclusive against them, that Mr. Slatter died seized of the lots, the rents of which they have received. Indeed, this fact is admitted in their answer. This being the case, and Mrs. Holly not being a purchaser from her father, there can be no question as to Mrs. Meek’s right to recover the rents from the death of her husband, and not merely from the time she instituted the proceedings for the allotment of her dower. — See 1 Paige, 192.
We have not been able to discover any error in the disposition which the chancellor made of the several exceptions to the master’s report.
Decree affirmed.