
    Louis A. Caillaret vs. Arni Bernard.
    The interest allowed by law to the widow, in the personalty of her deceased husband, is considered by our statutes as dower therein ; and must be pro» ceeded for, in the probate court, in the mode pointed out by the statute. H. & H. 421, § 123.
    A petition therefore, for dower, in personalty, that does not set forth in what the personalty consisted, nor that the deceased died in the county where the petition was filed, nor that the property in which the interest was claimed, is defective and liable to demurrer ; in such case, however, leave to amend the petition should be granted by the court.
    In error from the probate court of Harrison count}/-; Hon. George Holly, judge.
    The defendant, in error, filed the following petition in the court below : “ Your petitioner, Adelle Bernard, wife of Ami Bernard, widow of Adolphe Caillaret, deceased, respectfully showeth to your honor, that her late husband, Adolphe Cailla-ret, died intestate, and without lawful issue; she therefore prays that commissioners may be appointed to set aside her dower or legal rights in the personal property belonging to said estate, to which, under the laws of this state, she is entitled to receive therefrom, and as in duty bound, your petitioner will ever pray, &c.”
    Louis Caillaret, the administrator of Adolphe Caillaret, appeared and demurred to the petition; the probate court, however, overruled the demurrer, and appointed the commissioners, and the defendant prosecuted this writ of error.
    
      W. A. Cham.plin, for plaintiff in error.
    I. The petition sets out with the allegation, that Adolphe Caillaret died without issue, but does not say when or where, and that therefore she “ prays that commissioners may be appointed to set aside her dower or legal rights in the personal property belonging to said estate, to which, under the laws of this state, she is entitled to receive therefrom.”
    Now we have three statutes which allows the widow some property out of an intestate estate, the one provides that she shall have provisions for one year. But it is presumed that if that is what she desired by this petition, she should have shown by her petition that there was provisions on hand, and what they were, and that the year had not expired from the decease of the husband. In this case more than two years had expired.
    2. Then there is another law that allows the widow such property as is exempted from execution, provided the same shall not be more than of the value of fifty dollars. But this law only applies to insolvent estates, and if this is what she claims as “ dower or legal rights,” she should have alleged that the estate was insolvent, which is not the case.
    3. And thirdly, the statute provides that in case of no children of the marriage, the wife shall inherit one half of the personal estate, but she does not take this as dower, but as a dis-tributee, and if this is what she meant by the petition to claim, she should have alleged that twelve months had elapsed since the grant of letters of administration, and tendered a refunding-bond.
    In fact, from the mere inspection of the petition, and of its informality and uncertainty, it is believed that this honorable court will at once see that no decree could be made upon it, and consequently, that the decree made by the probate court below is erroneous.
   Mr. Justice Thachee.

delivered the opinion of the court.

A petition was filed in the probate court of Harrison county, in behalf of Adelle Bérnard for her dower or legal rights in the personal property of Adolphe Caillaret, deceased, a former husband of the petitioner. A demurrer was filed to this petition, attacking it for defects of form, which was disallowed by the court below, and an order made, appointing three commissioners to set off to- the petitioner her rights as prayed for in her petition.

The form of petition for dower is regulated by the statute, H. & H. 352, sect. 43. The widow must petition the court, setting out the nature of her claims; and if there be real estate, particularly specify the lands, tenements and hereditaments, in which dower is claimed. But if there be no real estate, that circumstance need not be set forth. It will be seen, from this statute, that it is under the writ of dower that the portion of the widow in the personalty of her husband’s estate is to be allotted and set off to her. Our laws abolish the common law proceedings for dower ; and, although the widow’s interest in personal estate is not dower by the common law, still it is so considered by our statutes, it being a portion which the law gives a widow, in consideration of the marriage.

In this case, the petition does not seem to have been filed under the statute H. & Id. 421, sect. 123, authorizing the probate court to appoint three commissioners to select and set apart to the widow one year’s provisions out of the stock of provisions and effects of the deceased husband. That statute requires a direct application from the widow for that purpose.

The petition can be regarded only as praying for the dower in the personalty of the estate; and was certainly defective in not stating that the deceased had personal property, and in what it consisted ; and especially in not stating that the deceased died in Harrison county, or that the property was there, in order to show that the court had jurisdiction. The demurrer should therefore have been allowed; but as the statute H. & H. 352, sect. 44, declares that the proceedings upon such petitions for dower shall be in a summary way, it is a case where leave for amendment might with great propriety be permitted by the court.

Judgment reversed, the demurrer allowed, and the cause remanded for further proceedings.  