The opinion of the Court was delivered by
Moses, C. J.
We are not called upon to consider so much of the argument of the counsel for the appellants as refers to the want of validity in the order of March 2,1871, because made, as it is alleged, in the absence of parties said to be necessary. We do not propose to pass upon this question, because if there were any defect of parties, the order of 31st March, 1871, suspending until the regular Term that part of it -which related to the payment of the sum assessed by the Court in lieu of dower, cured it, if, indeed, it ever existed. When the case was heard at the September Term following, these appellants were before the Court, with every opportunity to resist the claim of the plaintiff, which, by her complaint, she sought to enforce.
We therefore propose to confine our examination to the two grounds of exception submitted :
“First. That Iiis Honor erred in decreeing that the respondent is entitled to one-sixth of the proceeds of sale of house and lot, when it is submitted that the assessment should be made, if at all, on the value of the house and lot at the death of Robert Stewart.
“Second. That His Honor erred in decreeing at all as to the amount of value of the respondent’s dower, without a report of a Referee, or a return of Commissioners in Dower ascertaining the same.”
The last it may be in proper course first to consider. It may be conceded that the practice of the Court of Equity in cases of dower has conformed to the provisions of the Act of 1786, (4 Stat., 742,) regulating its admeasurement by the Courts of Common Pleas ; and this required the issuing of a writ to a certain number of Commissioners, commanding them, or a majority of them, to mete out one third of the land; and where the same cannot, in their opinion, be fairly and equally divided, without manifest injury or disadvantage. [7]*7then, having relation and regard to the true and real value of'the lands in question, they are to assess a sum of money, to be paid to the widow, by the heir-at-law, or such other person as may be in possession.
The appellants,'in making no opposition to the sale which had been ordered by the Court, and in no way objecting to its confirmation, must be deemed to have accepted the purchase money as in fact representing the land itself. Their own conduct, by the strongest implication, admitted that the “land could not be fairly and equally dividedand when they rested, satisfied with the price it had brought at the sale.ordered by the Court, they must be held to have accepted it as its full value exactly as if ascertain! by pursuing all the formalities prescribed by-the statute. Before a conclusion could be had as to the estimate in money of the dower, it was necessary to find the value of the whole land, and this was done probably in a more satisfactory manner by a sale than if obtained merely through the opinion of the Commissioners.
Where the purpose of the writ, so far as it was intended to ascertain the value of the land, has been as well obtained in another mode, and where, after a sale is confirmed by the Court, all the proper parties being before it, the judgment of the Court is as well informed as if a writ had issued and a return been made, as was said by Chancellor Harper, in Payne vs. Payne, Dud. Eq., 128, “ the measure of the complainant’s renunciation may be ascertained by the proper application of t-he rules before laid down without the. intervention of the Commissioners.” Chancellor Wardlaw, in Gibson vs. Marshall, 6 Rich. Eq., 215, said: “Whatever may be the agency, It is the Court that assigns or assesses the dower.”
Nor was the intervention of a Referee required to bring to the notice of the presiding Judge any facts necessary to his conclusion, if he was right in his assessment of the amount to which the plaintiff was entitled as the value of her dower. The seizin in the premises by the husband, during the coverture, and his death, were admitted, and we concur with him in holding that the dower is to be estimated according to the value of the land at the time of the assignment. The husband having died seized, the widow was entitled to one-third of the land for life.' If in lieu of the assignment to her of land, a sum of money is substituted as its value, we cannot perceive the reason which would refer Such value to the time of his [8]*8death. The usual writ, following the language of the Act of 1786, requires the Commissioners “ to have relation and regard , to the true value of the lands in question; where the same cannot be fairly and equally divided without manifest disadvantage, then they are to assess a sum of money to be paid to the widow in lieu of her dower.” It cannot be contended that this value is to be determined as at the death, for the language precludes such an inference. The authorities, too, point to the same conclusion. — Keith vs. Trapier, Bail. Eq., 63 ; Hale vs. James, 6 John. Ch., 260 ; Powell vs. M. and B. Manufacturing Co., 3 Mason, 450.
Was the presiding Judge right in his allowance of one-sixth of the proceeds of the sale of the land as the value of the plaintiff’s dower in it? In Wright vs. Jennings, 1 Bail., 280, one-sixth of the value of the entire fee was held equivalent to the widow’s estate for life in one-third of the land. ' This, as the Judge delivering the opinion of the Court says, is the rule “ which generally prevailed from the period when it was established in Heyward vs. Cuthbert, and (as he believes) has been approved by experience.” There are dicta, however, to be found in the opinions of some of our Judges, “ that, in extreme cases of youth, on the one hand, or of age and infirmity, on the other, something more or less, according to circumstances, may be allowed.” Notwithstanding these, the general rule has been adhered to, so far either as the books disclose or our own recollection of the practice can attest.
In a State like this, depending for its wealth more on its agricultural than its mercantile or manufacturing resources — where the people have not the facilities afforded by ready access to life assurance tables, or mortuary registers — where the persons, as Mr. Justice Nott remarks, in the case already referred to, “ usually selected for Commissioners, would be very incompetent to apply the table of life annuities to the various causes that may arise” — it is better to adhere to a system which is known, and by ■which, in the transfers of real estate, an inherent and fixed value may be given to the interest of the wife, should she survive, than to “ trust to results which, at last, must depend on mere speculation.”
In Woodward vs. Woodward, 2 Rich. Eq., 28, Chancellor Johnson, delivering the opinion of the Court, said, “ The sum assessed is one-sixth part of the fee simple value of the land, and is in exact conformity with the settled and long established rule by which the value of dower is ascertained, without reference to interest or mesne profits.”
[9]*9In Douglas vs. McDill, 1 Sp., 140, Mr. Justice Richardson says : “ The right of dower is the same as other legal rights to property, and, as strictly regarded in law, old or young, the widow has the same estate, and, of course, is entitled to the same equivalent. Yet, there are judicial dieta that would go to allow some discretion in extreme cases of the age or youth of the widow.
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The opinion of the Court was delivered by
Moses, C. J.
We are not called upon to consider so much of the argument of the counsel for the appellants as refers to the want of validity in the order of March 2,1871, because made, as it is alleged, in the absence of parties said to be necessary. We do not propose to pass upon this question, because if there were any defect of parties, the order of 31st March, 1871, suspending until the regular Term that part of it -which related to the payment of the sum assessed by the Court in lieu of dower, cured it, if, indeed, it ever existed. When the case was heard at the September Term following, these appellants were before the Court, with every opportunity to resist the claim of the plaintiff, which, by her complaint, she sought to enforce.
We therefore propose to confine our examination to the two grounds of exception submitted :
“First. That Iiis Honor erred in decreeing that the respondent is entitled to one-sixth of the proceeds of sale of house and lot, when it is submitted that the assessment should be made, if at all, on the value of the house and lot at the death of Robert Stewart.
“Second. That His Honor erred in decreeing at all as to the amount of value of the respondent’s dower, without a report of a Referee, or a return of Commissioners in Dower ascertaining the same.”
The last it may be in proper course first to consider. It may be conceded that the practice of the Court of Equity in cases of dower has conformed to the provisions of the Act of 1786, (4 Stat., 742,) regulating its admeasurement by the Courts of Common Pleas ; and this required the issuing of a writ to a certain number of Commissioners, commanding them, or a majority of them, to mete out one third of the land; and where the same cannot, in their opinion, be fairly and equally divided, without manifest injury or disadvantage. [7]*7then, having relation and regard to the true and real value of'the lands in question, they are to assess a sum of money, to be paid to the widow, by the heir-at-law, or such other person as may be in possession.
The appellants,'in making no opposition to the sale which had been ordered by the Court, and in no way objecting to its confirmation, must be deemed to have accepted the purchase money as in fact representing the land itself. Their own conduct, by the strongest implication, admitted that the “land could not be fairly and equally dividedand when they rested, satisfied with the price it had brought at the sale.ordered by the Court, they must be held to have accepted it as its full value exactly as if ascertain! by pursuing all the formalities prescribed by-the statute. Before a conclusion could be had as to the estimate in money of the dower, it was necessary to find the value of the whole land, and this was done probably in a more satisfactory manner by a sale than if obtained merely through the opinion of the Commissioners.
Where the purpose of the writ, so far as it was intended to ascertain the value of the land, has been as well obtained in another mode, and where, after a sale is confirmed by the Court, all the proper parties being before it, the judgment of the Court is as well informed as if a writ had issued and a return been made, as was said by Chancellor Harper, in Payne vs. Payne, Dud. Eq., 128, “ the measure of the complainant’s renunciation may be ascertained by the proper application of t-he rules before laid down without the. intervention of the Commissioners.” Chancellor Wardlaw, in Gibson vs. Marshall, 6 Rich. Eq., 215, said: “Whatever may be the agency, It is the Court that assigns or assesses the dower.”
Nor was the intervention of a Referee required to bring to the notice of the presiding Judge any facts necessary to his conclusion, if he was right in his assessment of the amount to which the plaintiff was entitled as the value of her dower. The seizin in the premises by the husband, during the coverture, and his death, were admitted, and we concur with him in holding that the dower is to be estimated according to the value of the land at the time of the assignment. The husband having died seized, the widow was entitled to one-third of the land for life.' If in lieu of the assignment to her of land, a sum of money is substituted as its value, we cannot perceive the reason which would refer Such value to the time of his [8]*8death. The usual writ, following the language of the Act of 1786, requires the Commissioners “ to have relation and regard , to the true value of the lands in question; where the same cannot be fairly and equally divided without manifest disadvantage, then they are to assess a sum of money to be paid to the widow in lieu of her dower.” It cannot be contended that this value is to be determined as at the death, for the language precludes such an inference. The authorities, too, point to the same conclusion. — Keith vs. Trapier, Bail. Eq., 63 ; Hale vs. James, 6 John. Ch., 260 ; Powell vs. M. and B. Manufacturing Co., 3 Mason, 450.
Was the presiding Judge right in his allowance of one-sixth of the proceeds of the sale of the land as the value of the plaintiff’s dower in it? In Wright vs. Jennings, 1 Bail., 280, one-sixth of the value of the entire fee was held equivalent to the widow’s estate for life in one-third of the land. ' This, as the Judge delivering the opinion of the Court says, is the rule “ which generally prevailed from the period when it was established in Heyward vs. Cuthbert, and (as he believes) has been approved by experience.” There are dicta, however, to be found in the opinions of some of our Judges, “ that, in extreme cases of youth, on the one hand, or of age and infirmity, on the other, something more or less, according to circumstances, may be allowed.” Notwithstanding these, the general rule has been adhered to, so far either as the books disclose or our own recollection of the practice can attest.
In a State like this, depending for its wealth more on its agricultural than its mercantile or manufacturing resources — where the people have not the facilities afforded by ready access to life assurance tables, or mortuary registers — where the persons, as Mr. Justice Nott remarks, in the case already referred to, “ usually selected for Commissioners, would be very incompetent to apply the table of life annuities to the various causes that may arise” — it is better to adhere to a system which is known, and by ■which, in the transfers of real estate, an inherent and fixed value may be given to the interest of the wife, should she survive, than to “ trust to results which, at last, must depend on mere speculation.”
In Woodward vs. Woodward, 2 Rich. Eq., 28, Chancellor Johnson, delivering the opinion of the Court, said, “ The sum assessed is one-sixth part of the fee simple value of the land, and is in exact conformity with the settled and long established rule by which the value of dower is ascertained, without reference to interest or mesne profits.”
[9]*9In Douglas vs. McDill, 1 Sp., 140, Mr. Justice Richardson says : “ The right of dower is the same as other legal rights to property, and, as strictly regarded in law, old or young, the widow has the same estate, and, of course, is entitled to the same equivalent. Yet, there are judicial dieta that would go to allow some discretion in extreme cases of the age or youth of the widow. But, for myself, I do not recognize any such qualification.”
The rule, allowing the one-sixth of the whole assessment, as is said in the above case, proceeds upon the principle “ that seven years’ use of land being the measure of the value of a life estate, it naturally follows that seven years’ lawful interest of the money value of the land is the equivalent of the life estate. One-third of seven years’ interest is so nearly equal to one-sixth of the whole assessment, that such one-sixth is taken in practice as the true measure of the value of dower.”
It is certainly clear that whatever sum was allowed the plaintiff in lieu of her dower, it should have been increased by the value of one-third of the whole mesne profits (or interest in the place of it,) since the death of her husband.
This, it appears, was not done, and no complaint is made for the omission. Doubtless, full justice has been rendered between the parties, and in an estate so much favored by the law we are not disposed to weigh with the most delicate scales the amount awarded as the value of the dower, with the view of discovering whether, by the most-exact forms, a trifling and inconsiderate diminution of the sum might not be required of her.
The motion is refused and the appeal dismissed.
Willard, A. J., and Wright, A. J., concurred.