Barney v. Frowner and Wife. BARNEY v. FROWNER AND WIFE. 1. The Orphans' Court has not jurisdiction of a petition for the allotment of 2. An allotment of dower cannot be made under the statute, but in those 4. Dower cannot be claimed against several alienees from the husband, by 5. Where the husband aliens, the widow is not dowable of the enhanced value of the property, by the erection of buildings, and other improvements made by the alienee, but of the value of the land at the time of the alienation. Quere? as to the increase of the value of the property, from the operation of other causes, not connected with improvements made by the purchaser. Writ of Error to the Orphans' Court of Mobile. PETITION by the defendants in error, for the allotment of dower. The petition was filed by Mary A. Frowner, widow of Samuel Acre, for dower in six several parcels of land in Mobile, which had been aliened by her husband in his lifetime, and to which she had not relinquished her dower. The court proceeded to hear, and determine upon the matter, and directed a writ to issue to the sheriff, commanding him to proceed, and cause an allotment to be made. An allotment was made, and being set aside by the court, a new allotment was made, received by the court, and ordered to be recorded. It does not appear from the proceedings, who was the legal representative of Samuel Acre, deceased, nor was any advertisement made in the gazette of the application for dower. Many assignments of error were made, denying the jurisdiction of the court, and the regularity of the proceeding, which are sufficiently noticed in the opinion of the court. 9 901 98 147 Barney v. Frowner and Wife. STEWART and FISHER; for plamtiffs in error. This is an application for dower, in lands sold by the husband in his life-time, and improved since by the purchaser. The statute remedy is not appropriate in such a case. Under it, the court has only power to admeasure and divide, when the right is not disputed. It cannot try title, or make compensation. [9 Mass. 9; 4 Bibb, 462; 4 Wendell, 630; 9 Johns. 245; 20 id. 411; 3 Dana, 371.] When the husband has aliened the land, the right of the widow is to be computed at one-third of the value, as it was at the time of the alienation. [4 Kent's Com. 64; 4 Leigh, 498; 2 Johns. 484; 11 Johns. 569; 6 Johns. C. 258; 13 Johns. 180; 1 Lomax Dig. 103, § 42; 6 Dana, 471; 7 id. 175.] Where there is any land unsold, that should be first set out to the widow, before any portion of the land sold can be allotted to her. [6 Dana, 471; 4 W. C. C. R. 305.] When the property is improved, and cannot be divided by metes and bounds, the court must allot otherwise. When it cannot be divided properly, it is often necessary to give it in money, and then the rule is to give one-sixth of the value, independent of improvements. The defendant may show, that although he entered under the husband, he holds the land by an adverse, and superior title. [4 Dana, 68; 10 N. H. 403.] He may rely on a legal title, and deny the seizin of the husband, which can only be tried in a common law court. [2 G. & J. 468; 8 id. 50.] Or the dower may be of an equitable estate, and then it can be tried only in equity. Neither a court of law, or chancery, can have full jurisdiction of all the questions which may arise, it often requires both, and insuperable difficulties will arise in the attempt to adapt the statute remedy to all cases. The true construction, doubtless is, as held in other States on similar statutesthat the court can try no right, but merely make partition when there is no controversy., The statute which authorizes the dowress to be put into possession, was not intended to dispossess parties claiming adversely. The possession meant by the act, is investiture of title. If it be vacant, the dowress may enter; if obstruct Barney v. Frowner and Wife. ed, she must resort to her ejectment. [9 Johns. 245; 4 Wend. 634; 20 Johns. 411.] The statute remedy is conferred on the Circuit and County Court-the Orphans' Court is a distinct jurisdiction. [Hopper v. Todd, 8 Ala. 121.] There is a misjoinder of parties. The purchasers from the husband claim by distinct titles, and cannot be united in the same litigation, as their defences may all be different. The proper parties were not made. The executor or administrator should have been a party, or advertisment as the statute requires, neither of which was done in this case, nor were the terre-tenants, properiy before the court. [7 Porter, 19; 7 Ala. 474.] PHILLIPS, contra. ORMOND, J.-This proceeding is radically defective. The statute requires ten days notice of the application for the allotment of dower, to be given to the executor, or administrator, when they do not reside in the same county with the widow, or when she is herself, the executrix, or administrator, the notice is to be given by advertisement in a newspaper published four successive times. [Clay's Dig. 173, § 6.] The petition does not show whether there is any personal represention, of the estate or not. No citation has issued to any one as such, nor has any advertisement been made; it is therefore evident that the requisitions of the statute have not been complied with, and this being a summary remedy, given by statute, can only be supported by conformity to its provisions. There are also many other irregularities. It does not appear that Elizabeth Acre, one of the heirs, was notified. No proceedings were had upon the death of Margaret Johnson, another heir, except the suggestion of her death upon the record. Nor does it appear that all the terre-tenants were regularly before the court, as was held to be necessary in Green v. Green, 7 Porter, 19. For these reasons this proceeding must be reversed; but to enable the party to proceed, cortectly, it is proper to express an opinion upon the other points named in the argument. Barney v. Frowner and Wife. It is objected, that the Orphans' Court has no power to entertain this petition. The statute giving this remedy, passed in 1812, and authorizes the widow to file her petition, in the "Superior, or County Court, in the county where the husband shall have usually dwelt," &c. At the time of the passage of this act, the County Court was held by five justices, who were authorized to hold the County Court, and Orphans' Court, of their respective counties. [Toulmin's Dig. 175]-the County Court being held twice. a year, and intermediate courts for orphans' business; the chief justice being privileged to hold a special term of the Orphans' Court, whenever he thought proper, and an appeal being allowed from any decision made at such special court, to the next regular term of the Orphans' Court. [Ib. 180.] From this, it appears, that at the time of the passage of this act, the County and Orphans' Court, were distinct and separate tribunals, though held by the same persons, having their jurisdiction distinctly marked-the Probate, or Orphans' Court, having jurisdiction of all matters pertaiuing to the probate of wills, the estate of infants, &c. whilst the County Court had jurisdiction of civil actions, except real actions, ejectment, & and where the amount in controversy did not exceed $1000. This system was modified in 1819, and abolished in 1821, by the establishment of the present system, in which the same distinction is observed as to the powers conferred on the County Court, as a court of common law, and upon the Judge of the County Court as to the probate of wills, and other testamentary matters. Since that period, though generally the appropriate designations of these courts is preserved, in some instances there has been some confusion introduced, by the indiscriminate use of the terms Orphans' and County Court, but the subject matter usually pointed out, the forum intended to be indicated. In this case, there is nothing extrinsic, which can shed any light upon the subject, and judging of the meaning of the legislature, from the use of the terms employed, "Superior, and County Court," we are constained to think, the common law court, held by the five justices twice a year, was designated, and not the Orphans' Court, which under the act of 1810, was then usually held by the chief Barney v. Frowner and Wife. justice for the probate of wills, granting letters of administration, &c., and from whose decision, an appeal lay to the next "Orphans' Court" of the county. It is further argued, that the statute jurisdiction can only be exercised, when the right of dower is not disputed, and when an admeasurement of dower can be made by metes and bounds. In Green v. Green, 7 Porter, 19, we had occasion to give the act under which this proceeding originated, an extended examination, and we then considered the act to. be, an effort on the part of the legislature to give the dowress a summary remedy for her dower, instead of the dilatory, and expensive proceeding at common law. She is authorized to petition the Circuit, or County Court, that her dower be alloted to her, describing the lands in which she claims dower, and it is therefore made the duty of the court to issue its writ to the sheriff, to summon five discreet freeholders, who "shall allot, and set off, by metes and bounds, to the said widow, one-third part, according to quality and quantity, of all the lands, &c., and shall put her in possession of the same, which shall vest in her, an estate for her natural life," &c. [Clay's Dig. 173, § 5.] It is manifest, we think, that it was not the design of this enactment to embrace those cases where dower could not be assigned out of the land, and the dower interest designated by visible boundaries. When that is impossible, and where a compensation must be made in money, in lieu of dower, out of the land itself, it is clearly neither within the letter or spirit of the statute. But we can see no reason, where an allotment can be made, by metes and bounds, why the right of dower cannot as well be tried under the statute remedy, as by the common law mode of procedure. The executor, heir, and terre-tenant, are required to be notified, and may become parties to the suit, and any defence which they could make to her claim if she proceeded at common law, would be available to them under this summary proceeding, which, as was held by this court in Green v. Green, supra, was only intended to simplify, and expedite the claim of the widow to dower, without impairing any defence which might exist against it. |