Courts of chancery have concurrent jurisdiction with courts of
law, in cases of dower, especially where partition, discovery, or
account is prayed and in cases of sale where the parties are
willing that a sum in gross should be given in lieu of dower.
If a devise of land in Virginia to the widow appear from
circumstances to be intended in lieu of dower, she must make her
election, and cannot take both.
If a wife join her husband in a lease for years, she is still
entitled to dower in the rent.
A court of chancery cannot allow a part of the purchase money in
lieu of dower when the estate is sold unless by consent of all the
parties interested.
Error to the Circuit Court for the District of Columbia sitting
at Alexandria, in a suit in chancery brought by Richard Wren and
Susanna, his wife, who was the widow of Lewis Hipkins, deceased,
and John and Westley Adams, her trustees, against W. Herbert, T.
Swann, R. B. Lee, and W. B. Page, trustees of Philip R. Fendall,
deceased, and E. I. Lee, Jos. Deane, and F. Green.
The case was stated by MR. CHIEF JUSTICE MARSHALL in delivering
the opinion of the Court as follows:
This suit was brought by Richard Wren, and Susanna, his wife,
formerly the wife of Lewis Hipkins, praying that dower may be
assigned her in a tract of land of which her former husband died
seized and which has since been sold and conveyed to the defendant
Joseph Deane, or that a just equivalent in money may be decree her
in lieu thereof.
The material circumstances of the case are these:
Lewis Hipkins, being seized as tenant in common with Philip
Richard Fendall of one-third of a tract of land lying in the County
of Fairfax, by his deed executed
Page 11 U. S. 371
by himself and wife leased the same to Philip Richard Fendall
for the term of thirteen years, to commence on the first of
September in the year 1794 at the annual rent of �140.
In the year 1794, Lewis Hipkins departed this life, having first
made his last will and testament in writing in which he devised
both real and personal estate to his wife, the real estate for her
life with remainder to his three daughters.
To his two sons he devised the premises in question and added
that if, during the minority of his sons, Philip R. Fendall should
erect thereon another water mill or water mills, has desire was
that his sons or the survivor of them should, at the expiration of
the lease for years made to the said Philip, pay one-third part of
the value of such mill or mills, and in default of payment that P.
R. Fendall should be permitted to hold the same at the present rent
until the value should be received.
He directed his two tracts of land in Loudon to be sold for the
payment of his debts, and appropriated the annual rent accruing on
the lands leased to P. R. Fendall to the education and maintenance
of his children.
The testator then adds the following clause:
"If it should so happen that the remaining part of my estate not
herein bequeathed should prove insufficient to pay all just demands
against my estate, then my will and desire is that my executors
shall sell as much of my real and personal estate as may be
necessary to make up the deficiency, and that they shall sell such
parts as will divide the loss among my representatives as nearly as
may be in proportion to the property bequeathed to them and each of
them."
On 13 December, 1797, Susanna Hipkins, then the widow of Lewis
Hipkins, conveyed her dower in the premises in question and also in
the land devised to her for life by her deceased husband to the
plaintiffs, John Adams and Westley Adams, in trust for her use.
Page 11 U. S. 372
In the year 1803, P. R. Fendall and Walker Muse instituted a
suit against the executors and children of Lewis Hipkins, deceased,
and in the month of June in that year the cause came on to be heard
by consent of parties, when the court decreed that the whole estate
of Lewis Hipkins be sold and the money brought into court.
The report of the sale does not appear on the record, but an
entry was made that the report was made and confirmed by the
court.
Under this decree the premises were sold and conveyed to the
defendant E. I. Lee, who purchased in trust for P. R. Fendall, one
of the executors of Lewis Hipkins. On the deed of conveyance is a
memorandum stating that the property was sold subject to dower.
Lee conveyed the premises to the other defendants, trustees of
P. R. Fendall, for the purposes of a trust deed which had been
previously executed conveying to them the other two-thirds of the
same estate on certain trusts in the deed recited.
The trustees sold and conveyed to the defendant, Joseph
Deane.
The bill states that the defendant Joseph Deane had not paid the
purchase money, and was willing, should the court decree dower in
the premises, to give an equivalent in money in lieu thereof.
Soon after the trust deed from Susanna Hipkins to John and
Westley Adams, she intermarried with the plaintiff Richard
Wren.
Philip R. Fendall continued to pay the plaintiff, Susanna,
during her widowhood, and the plaintiffs, Richard and Susanna,
after their intermarriage, one-third part of the rent accruing on
the premises devised to him by Hipkins and wife until the year
1803, since which he has refused or neglected to pay the same.
The defendants, the trustees of Philip Richard Fendall, he
having departed this life previous to the institution of this suit,
insist:
Page 11 U. S. 373
1. That the remedy of the plaintiffs, if they have any, is at
law, and that a court of equity can take no jurisdiction of the
cause.
2. That the provision made by the will of Lewis Hipkins for the
plaintiff Susanna not having been renounced by her, bars her right
of dower in his estate.
The defendant Joseph Deane has put in no answer, and as against
him the bill is taken as confessed.
The circuit court determined that the claim of the plaintiff
Susanna to dower was not barred, and decreed her a sum in gross as
an equivalent therefor.
From this decree the trustees of Philip Richard Fendall have
appealed. The plaintiffs also object to so much of the decree as
refuses them rent on the premises, and have therefore taken out
likewise a writ of error.
Page 11 U. S. 376
MR. CHIEF JUSTICE MARSHALL, after stating the case, delivered
the opinion of the Court as follows:
The material questions in the cause are:
1. Has a court of equity jurisdiction in the case?
2. Is the plaintiff Susanna entitled to dower?
3. If these points be in her favor, what decree ought the Court
to make?
According to the practice which prevails generally in England,
courts of equity and courts of law exercise a concurrent
jurisdiction in assigning dower. Many reasons exist in England in
favor of this jurisdiction, one of which is that partitions are
made and accounts are taken in chancery in a manner highly
favorable to the great purposes of justice. In this case, dower is
to be assigned in an undivided third part of an estate, so that it
is a case of partition of the original estate as well as of
assignment of dower in the part of which Lewis Hipkins died
seized.
Page 11 U. S. 377
An additional reason and a conclusive one in favor of the
jurisdiction of a court of equity is this: the lands are in
possession of a purchaser who has not yet paid the purchase money.
A court of law could adjudge to the plaintiffs only a third part of
the land itself. Now if the plaintiffs be willing to leave the
purchaser undisturbed, to affirm the sales, and to receive a
compensation for her dower instead of the land itself, a court of
equity ought never, by refusing its aid, to drive her into a court
of law and compel her to receive her dower in the lands themselves.
This is therefore a proper case for application to a court of
chancery.
2. It is perfectly clear that the provision made by Lewis
Hipkins in his last will is no bar to a claim of dower for several
reasons, of which it will be necessary to mention only two.
1. It is not expressed to be made in lieu of dower.
2. It is not averred that she has accepted the provision and
still enjoys it.
3. It remains to inquire what decree the court ought to make in
the case.
The first question to be discussed is this: is the plaintiff
Susanna entitled both to dower and to the provision made for her in
the will of her late husband?
The law of Virginia has been construed to authorize an averment
that the provision in the will is made in lieu of dower, and to
support that averment by matter
dehors the will. But with
the exception of this allowance to prove the intention of the
testator by other testimony than may be collected from the will
itself, the act of the Virginia Legislature is not understood in
any respect to vary the previously existing common law.
In the English books there are to be found many decisions in
which the widow has been put to her election either to take her
dower and relinquish the provision made for her in the will or to
take that provision and relinquish her dower. There are other cases
in which
Page 11 U. S. 378
she has been permitted to hold both. The principle upon which
these cases go appears to be this:
It is a maxim in a court of equity not to permit the same person
to hold under and against a will. If therefore it be manifest from
the face of the will that the testator did not intend the provision
it contains for his widow to be in addition to her dower, but to be
in lieu of it, if his intention discovered in other parts of the
will must be defeated by the allotment of dower to the widow, she
must renounce either her dower or the benefit she claims under the
will. But if the two provisions may stand well together, if it may
fairly be presumed that the testator intended the devise or bequest
to his wife as additional to her dower, then she may hold both.
The cases of
Arnold v. Kempstead, of
Villarael v.
Galway, and of
Jones v. Collier, reported by Ambler,
are all cases in which, upon the principle that has been stated,
the widow was put to her election.
In the case under consideration, neither party derives any aid
from extrinsic circumstances, and therefore the case must depend on
the will itself.
The value of the provision made for the wife compared with the
whole estate is not in proof, but so far as a judgment on this
point can be formed on the evidence furnished by the will itself,
it was supposed by him to be as ample as his circumstances would
justify.
The only fund provided for the maintenance and education of his
five children is the rent of �140 per annum, payable by P. R.
Fendall. Since he has made a distinct provision for his wife, the
presumption is much against his intending that this fund should be
diminished by being charged with her dower.
That part of the will, too, which authorizes P. R. Fendall, in
the event of building a mill and not receiving from the sons of the
testator their half of its value, to hold the premises until the
rent should discharge that debt indicates an intention that in such
case the whole rent should be retained.
Page 11 U. S. 379
The clause, too, directing the residue of his estate to be sold
for the payment of debts is indicative of an expectation that the
property stood discharged of dower, and is a complete disposition
of his whole estate. The testator appears to have considered
himself as at liberty to arrange his property without any regard to
the encumbrance of dower.
Upon this view of the will, it is the opinion of the majority of
the Court that the testator did not intend the provision made for
his wife as additional to her dower, and that she cannot be
permitted to hold both.
She has not, however, lost the right of election. No evidence is
before the Court that she has accepted the provision of the will,
nor that she still enjoys it. Indeed there is much reason to
suppose the fact to be otherwise. The decree of 1803 does not
except the lands decreed to her for life from its operation, nor is
the Court informed by the evidence that those lands were not sold
under it.
But if she had accepted that provision and still enjoyed it,
there is no evidence that she considered herself as holding it in
lieu of dower. On the contrary, she was in the actual perception of
one-third of the rent accruing on the lease hold by P. R. Fendall,
and in the deed executed by her in 1797, before her second
marriage, she conveys her dower in the lands leased to Fendall, and
also her dower in the lands devised to her by her deceased husband.
It is therefore apparent that she never intended to abandon her
claim to dower.
The next inquiry to be made by the Court is to what profits is
the plaintiff, Susanna, entitled in consequence of the detention of
dower.
It is unnecessary to decide whether in general a person claiming
dower from a purchaser can recover profits which accrued previous
to the institution of her suit. In this case, the plaintiff was in
the actual enjoyment of dower. She received one-third of the rent
accruing from the premises for nine years. She was therefore in
full possession of her dower estate, and when afterwards the land
was sold under a decree of a
Page 11 U. S. 380
court, P. R. Fendall was one of the executors who made the sale,
and was himself in effect the purchaser of the estate. Upon no
principle could he justify the refusal to pay that portion of the
rent which was equal to her dower in the land unless on the
principle that she was not entitled to dower. In this case,
therefore, the plaintiff is entitled to one-third of �140 per annum
for the remaining four years of the lease under which P. R. Fendall
held the land, and to an account for profits after the expiration
of the lease.
But the plaintiff Susanna cannot claim the profits on her dower
and hold any portion of the particular estate devised to her or of
the profits on that estate. An account therefore must be taken, if
required by the defendants, showing what she has received under the
will of her husband. This must be opposed to the profits to which
she is entitled for dower, and the balance placed to the credit of
the party in whose favor it may be.
It remains to inquire whether the allowance of a sum in gross in
lieu of dower in the land itself, or of the interest on one-third
of the purchase money, might legally be made.
This must be considered as a compromise between the plaintiffs
and the defendant Deane. His assent being averred in the bill, and
the bill being taken
pro confesso as to him, this may be
considered as an arrangement to which he has consented. This,
however, cannot affect the other defendants. They have a right to
insist that instead of a sum in gross, one-third of the purchase
money shall be set apart and the interest thereof paid annually to
the tenant in dower during her life.
If the parties all concur in preferring a sum in gross to the
decree which the court has a right to make, still it is uncertain
on what principle seven years were taken as the value of the life
of the tenant in dower. It is probably a reasonable estimate, but
this Court does not perceive on what principles it was made, nor
does the record furnish the means of judging of its
reasonableness.
This Court is of opinion that there is error in the decree of
the circuit court in not requiring the plaintiff
Page 11 U. S. 381
Susanna to elect between dower and the estate devised to her by
her late husband, and in not allowing profits on her dower estate
if she shall elect to take dower. The decree is to be
Reversed and the cause remanded for further proceedings in
conformity with the following decree.
This Court is of opinion that the plaintiff, Susanna, is not
barred of her right of dower in the lands of which her late
husband, Lewis Hipkins, died seized, but that she cannot hold both
her dower and the property to which she may be entitled under the
will of the said Lewis. She ought therefore to have made her
election either to adhere to her legal rights and renounce those
under the will, or to adhere to the will and renounce her legal
rights, before a decree could be made in her favor.
This Court is further of opinion that the plaintiff Susanna,
having been in possession of her dower by the receipt of rent for
several years after the death of her late husband, is, in the event
of her electing to adhere to her claim of dower, entitled to
receive from the estate of P. R. Fendall the profits which have
accrued on her dower estate in his possession from the time when he
ceased to pay the same until the sale was made to the defendant
Joseph Deane, and is entitled to receive from the said Joseph Deane
the profits which have accrued thereon since the same was sold and
conveyed to him to ascertain which an account ought to be directed.
And the Court is further of opinion that an account ought also to
be directed to ascertain how much the said Susanna has received
from the estate of her late husband, and what profits she has
received from the estate devised to her in his will, all which must
be deducted from her claim for dower.
The Court is further of opinion that if the parties or either of
them shall be dissatisfied with the allotment of a sum in gross and
shall prefer to have one-third part of the purchase money given by
the said Joseph Deane for the lands in which the plaintiff Susanna
claims dower set apart and secured to her for her life, so that she
may receive during life the interest accruing thereon,
Page 11 U. S. 382
and shall apply to the circuit court to reform its decree in
this respect, the same ought to be done.
It is the opinion of this Court that there is no error in the
decree of the Circuit Court for the County of Alexandria in
determining that the plaintiff Susanna was entitled to dower in the
estate of her late husband, Lewis Hipkins, deceased, but that there
is error in not requiring her to elect between her dower and the
provision made for her in the will of her late husband, and in not
decreeing profits on the same. This Court doth therefore
Reverse and annul the said decree and doth remand the cause
to the said circuit court with instructions to reform the said
decree according to the directions herein contained.
JOHNSON, J. dissented from the opinion of the Court, but did not
state his reasons.
