
    Young v. Wolcott et al.
    
    "Where the husband alone, conveys real estate, the dower of the wife, upon his death, is to be governed by the law in force at the time of making the conveyance by the husband, and not by that in force at the time of his •decease.
    
      Appeal from the Lee District Court.
    
    This was- a petition originally filed in tbe county court of ■Lee county, by Harriett Young, as widow of Peter Young, '•deceased, praying tbe assignment of her dower in two parcels of real estate described therein. Tbe material facts, as disclosed by tbe record, are as follows; The husband of pe* titioner died in August, 1851, and during bis lifetime, and the coverture of tbe said Harriett, was seized in fee simple of tbe property described. On tbe 6th of March, 1851, Peter Young executed -a deed -of trust to Samuel E, Miller, to secure certain debts wbicb be was owing Wolcott and others, wbicb deed included only a portion of tbe property from wbicb dower is claimed. On tbe 26th of November of tbe same year, tbe trustee sold tbe trust estate under said deed to Arthur W olcott. Tbe wife did not sign said trust deed. Wolcott and others were made defendants to the petition in the county court, and set up the above facts, which are not denied, and also the further fact, that on tbe 1st of October, 1850, tbe said Young and his wife, Harriett, bad, by their deed, duly acknowledged, conveyed tbe real estate in tbe petition named, that was not covered by the subsequent trust deed, to tbe defendants. This latter averment was denied by the petitioner, she claiming and averring under oath, that she never had signed said deed. On the hear* ing in the county court, it was found that the petitioner bad conveyed her interest in tbe property described in said deed of October 1st, 1850, and was, therefore, not entitled to dower therein; but that she was entitled to her dower in fee simple in the property mentioned in the trust deed. From the first part of this decree, the petitioner, and from tbe latter, the defendants, appealed to tbe District Court. On tbe bearing of these two appeals (both appearing to have been beard together), in tbe District Court, tbe judgment of the county court was affirmed. Both parties have appealed to this court. Tbe appeal of the petitioner has been dismissed for want of prosecution, and the only question now left is, as to the correctness of the judgment of the District Court, in awarding the petitioner dower in fee simple in the lands described in the trust deed, under the circumstances stated. The time of the marriage of Peter and Harriett is not shown, but tbe fact of marriage is admitted.
    
      Samuel F. Miller, for appellants.
    
      J. G. Mall and S. F. Marshall, for appellee.
   Weight, C. J.

Tbe defendants claim that tbe petitioner Was only entitled to a dower interest for life, and not in fee simple, in ibis land. Tbe law in force at tbe time this deed was executed, gave ber only a life estate. Tbe Code, wbicb was in force at tbe time of Peter Young’s death, gave ber one-third in fee simple. This decision of tbe District Court was made April 3d, 1855, but we suppose without knowledge of tbe ruling of this court, involving tbe same question, at tbe last term. Tbe case of Jane B. O'Farrell v. Timothy Davis, decided at tbe December term, 1854, of this court, is now relied upon by tbe appellants as settling this case. ¥e can see no difference in tbe principle involved. Indeed, from tbe fact that no argument has been made by tbe appel-lee, we suppose that decision is regarded as governing this case. It was there held, that tbe dower of tbe wife is to be governed by tbe law in force at the time of tbe making of tbe deed by tbe husband, and not that in force at tbe time of tbe husband’s death ; that tbe husband bad full power to dispose of tbe entire estate, except tbe wife’s dower; that tbe purchaser would take tbe property subject to that right, as then fixed by law; and that tbe law making power could not afterwards increase that interest, without violating tbe obligation of tbe original contract. ¥e axe not now urged to change this ruling, and as at present advised, see no good reason for so doing.

Tbe decree of tbe District Court, giving to tbe petitioner a dower in fee simple, will therefore be reversed, and tbe cause remanded, with directions to enter tbe decree so as to give tbe petitioner dower for life only in tbe lands' mentioned in said trust deed, and in all other respects tbe proceedings are affirmed.

Judgment reversed.  