
    Whitehead, Appellant, v. Middleton.
    When the marriage contract does not amount to more than a reservation to dispose of the individual property at death, and no disposition is made by the parties, the property is subject to the course prescribed by law. Nor is such a contract a jointure which will bar the wife’s claim to dower.
    The statute assigning dower regards the children of the former marriage, in determining the extent to which the wife of the second marriage is dowable in the property of her husband.
    The want of a sufficient seisin of the husband, is held to be the reason why the wife is not entitled to dower as against the mortgagee, but this rule prevails only as against the mortgagee or his representatives; as to -all others, the widow is entitled to dower, although the husband had but the equity of redemption.
    LYDIA, widow of William Whitehead, filed her petition in the probate court of the county of Franklin, claiming dower, in the personal and real property belonging to the estate of said William Whitehead, deceased. Whitehead had been married twice, and there were several children by the first marriage, but none by the second. The petition asserted a claim of .dower to one half of the real and personal property, and in the growing crop.
    The appellee as administrator of Whitehead filed his answer to the petition, and set up a marriage contract, as a bar to the claim of dower. The contract was as follows:
    
      “ State of Mississippi, Adams county: Know all men by these presents, that we, William Whitehead, of the state and county aforesaid, and Lydia Cade of Franklin county, State of Mississippi, hath agreed to marry, and by these presents further contracted and agreed, that it is each of our desires to enjoy our property together, until death, and then each of us to dispose of our property as we may think best. Given under our hands and seals: this 34th day of August, 1833.
    William Whitehead.
    Lydia Whitehead.”
    
      The answer also denied the claim to dower in the lands of said estate, on the ground that Whitehead at the time he purchased them, executed a mortgage to the vendor to secure the purchase money.
    The court below decided, that the marriage contract barred Lydia Whitehead’s claim to dower, and that, if she were endow-able at all, only to the extent of a child’s part, and that the mortgage barred her claim to- dower in the lands of the intestate. From which decision the appellant took an appeal to this court.
    Grayson, for appellant.
    In this case, the widow of the intestate applies for dower out of the estate real and personal of her husband.
    The petition presented by her to the orphans’ court, alleges, &c. The answer admits the statement, that her husband died seised of a certain tract of land in the county of Franklin, as also possessed of a large amount of personal prpperty enumerated in the petition; and that there were no children of the marriage between herself and husband. The answer insists, that the widow is not entitled to dower out of either the real or personal estate because a marriage contract between the husband and wife excludes such a claim. But if not, she is not entitled to dower out of the land, because the intestate, the same day he purchased the land, mortgaged it to the vendor; .and as regards the personal property, she is not entitled to more than a child’s part.
    We insist, 1. That the marriage contract between the husband and wife is available, so far only, as to secure the property owned by either before marriage, or his or her separate property during marriage, with the power of disposition, to take effect after death. But should either one of them die, without having made any disposition, then the rights of the survivor to the property of the deceased stand as though no such contract had been made. If the wife survive, as in the case before the court, the husband having made no disposition of his property, she is entitled to the same extent of interest in his property, as she would have been entitled to, had there been no marriage contract. Therefore, the marriage contract is no bar to dower. 5 Munf. 467; 3 Bibb, 407; Johns. Chan. Rep. 239.
    A widow is entitled to dower in an equity of redemption, and hence, the mortgage is no bar. 5 Johns. Chan. Rep. 482-490.
    3. The widow is entitled to one half of the personal estate of debts, provided there be but' one or no child. The question in this cause is, whether the widow is entitled to the same extent of interest, when the husband leaves children by a previous marriage. This is made a question as against the widow. For her, however, it is insisted, that the language of the act will give her the interest claimed by her, though there may be children of the husband, by a previous marriage. There is no proof, however, that there are such children. The answer states the fact, but it is matter in avoidance, and should be proved.
    The statement of the judge below, that there are such children, is not evidence, but constitutes a part of his opinion only. The statement in the answer, that the debts of the estate are unpaid, or that there are debts, is unsupported by testimony. Therefore, neither the children nor debts form any objection to dower being decreed. Revised Code, p. 231, sec. 2.
    4. The statute does not prescribe any time within which application for dower shall be made;' but on the contrary allows her to make the application at any time.
    Rawlings and Stewart, for appellee,
    cited Rev. Code, 230-1; Ibid. 55; 9 Johns. Rep.
   Mr. Chief Justice Shamcey

delivered the opinion of the court.

There are three questions presented in this case for the consideration of the court; first, Is the marriage contract a bar to the widow’s dower? Secondly, If she is entitled to dower, what is the extent to which she is to be endowed? and, thirdly, is she entitled to dower in the mortgaged tract of land?

1. The contract is so vague and defective that it may well be questioned, whether it can have any force whatever. The only thing that can be distinctly gathered from it is, that the parties had agreed to marry, but in regard to the property no disposition- or settlement was made, further than the expression of a desire to enjoy it together during life, and at death to dispose of it as they might think proper. There are no technical terms of conveyance or settlement used, nor do the words, according to the Common acceptation, convey to the mind any distinct idea of a Contract. If it amounts to any thing, a reservation to dispose of the property at death is the utmost extent to which the contract can be carried, and as no such disposition was made, the property must be subject to the course prescribed by law. If, however, the argument would bear a different interpretation, we are still relieved from any doubt as to the decision by the aspect of the case. It does not appear, either from the petition, answer, or proof, whether the property in which she claims dower was owned by the. husband at the time of the marriage, or acquired afterwards, or whether it is the joint property of both, and consequently there can be no just ground for refusing her claim, for certainly it cannot be pretended, with any degree of plausibility, that the instrument set up is a jointure, and as such a bar to the right of dower. It lacks every essential requisite of a jointure.

2. The next inquiry, is as to the extent of the claimant’s right of dower. It appears by the record that there were ho children, the issue of the marriage, but that the intestate had several children by a former wife, and it is still contended that the widow is entitled to one half of the real estate for life, .and one half of the personal estate absolutely, because there were no children the issue of the marriage. The statute will not bear such a construction. With regard to the rights of distributees it is general in terms, making no distinction between children, but places them all on the same footing, whether the issue of the same or different marriages. By the 50th section of the orphans’ court law it is declared, that if any person die seised of an estate of inheritance, it shall descend to his or her, children and their descendants, in equal parts, and by the 52d section, personal property descends in the same manner; and in both these sections there is a saving of the widow’s dower, without providing what that dowér shall be. There is certainly no ground in either of these sections for making any distinction between children, for the terms used necessarily embrace all the children a person might have at the time of the death. The same terms are used in the act in relation to dower, and the extent of the widow’s dower is made to depend on the number of children left by the intestate without any term to indicate that they should be the issue of a particular marriage. By the ordinary rules of construction, there is nothing to justify a belief that the Legislature could have intended to regulate a widow’s dower with reference to the number of her own children, regardless of children by a different marriage. Such a construction would necessarily give the law an unequal operation.

The 3d and only remaining point is as to her right to dower in the mortgaged tract of land. It is averred in the answer and not denied, that at the time the intestate received a deed to the land, he executed a mortgage to the vendor to secure the purchase money, and the deed and mortgage being set out in the bill of exceptions, sustain the averment. They both bear date on the same day, are between the same parties, for the same consideration expressed, and the land is described in the mortgage by reference to the deed. There is abundant authority to show that they are to be considered as parts of the same transaction, being dated on the same day, and that as such the seisin of the husband is not sufficient to entitle the wife to dower. Holbrook v. Finney, 4 Mass. Rep. 566; 14 Ibid. 351; Stow v. Tift, 15 Johns. Rep. 458. However well this principle may be established by authority, it cannot be applied to the case before us. In the cases cited, the applications for dower were made against the mortgagee or those claiming in right of the mortgage, and in this case the administrator, who is also an heir in right of his Avife, has become the respondent to the petition. The rule seems to be equally well settled, that such an objection is not available to those claiming under the mortgagor, in which situation is the respondent. The Avant of a sufficient seisin of the husband is held to be the reason why the Avife is not entitled to doAver as against the mortgagee, seisin, either in laAv or in fact, being essential to the right of the dower; but this rule prevails only as against the mortgagee or his representatives. As regards all other persons, the law seems to be now well settled, that the mortgagor is deemed to be seised notwithstanding the mortgage, and before foreclosure or entry, is considered the owner of the land. Hitchcock v. Harrington, 6 Johns. Rep. 290; Collins v. Torry, 7 Johns. Rep. 278. The mortgagor being thus considered as seised, the inevitable result is that the widow must be entitled to dower, although the husband had but the equity of redemption. We are not informed whether the mortgage is still outstanding or not, nor is it material as regards the defendant; it does not lie with him to object to the seisure and title of his intestate, and the mortgagee or his assigns may protect his interest when it becomes necessary. ■ In addition to the authorities cited the same principle is recognised in the case of Bird v. Gardner, 10 Mass. Rep. 364.

It is a point rather conceded than regularly proved, that the intestate had several children by a former marriage, and so I have considered it, without deeming it very material, as the case must necessarily be remanded. Applications for dower are made in a summary way, before the orphans’ court, where great technical precision is not to be expected, either in the proceedings or trial, and having settled the principles which must govern in the allotment of the petitioner’s dower, ■

The judgment must be reversed and cause remanded.  