
    Mary Harshaw, v. Vincent Y. Davis.
    The widow is the tenant of the heir or owner, for the land held in dower, and he must defray the expense of assigning her her dower, whether by his own act or by legal proceedings; and he cannot exempt himself from the charge by a return to the summons, that he was ready and offered to assign the demandant her dower before the summons was issued.
    Tried before Mr. Justice Frost, at York, Spring Term, 1840.
    This was a motion to reverse the decision of the Clerk, taxing costs against the defendant.
    Mary Harshaw had sued out a summons in dower against the defendant, who was in possession of the land. The defendant, in his answer, set out that he admitted the claim, and was ready and willing to assign to the demandant her dower in the land, and had offered to do so before the summons was sued out. Commissioners having been appointed, and having made their return to the Court, an order was entered that the return should be confirmed and made the judgment of the Court, and that the demandant should have execution for the costs and expenses of the proceeding.
    The motion was refused; because the A. A. 1795, provides, that the costs of the proceeding to assign the widow’s dower, in the Court of Common Pleas, shall be paid by the person in possession, or claiming the land; and moreover, the defendant is concluded by the order in the case, that the demandant should have execution for the costs and expenses.
    The defendant appealed; because, under the circumstances of the above case, he was not liable to pay the cost taxed against him.
    W[TirERsrooN, for the motion.
    Williams, contra.
    
   Frost J.

delivered the opinion of the Court.

The Act of 1786, 4 Statutes, 743, prescribes the manner and form of proceeding by which dower may be admeasured to the widow, in the lands of her deceased husband; and it is provided, that “the expenses which may be incurred in making such admeasurement, shall be paid by the persons who shall claim the property or be in possession of the land.” In directing the expense of the, proceeding to be paid by the person claiming, or in possession of the land, the act does not provide for litigated cases only; but also, that where there is no opposition, the share of the widow shall be assigned and delivered to her, without any charge. This construction is confirmed by the provision of the Act of 1717, 4th Stat., 385, (for which the Act of 1786 is a substitute,) “that the whole expense of making the admeasurement of dower shall be defrayed out of the estate of the heir at law.” In this the statutes follow the common law. The widow is the tenant of the heir or owner for the land held in dower, and it is his duty to measure and set out a part of the land, to be held by her, and to put her in possession. ITe may assign to the widow her share of the land, or make any composition in lieu of dower; and if she is satisfied and accepts it, no legal proceeding is necessary; 1 Cruise, Dig. Title Dower. He must defray the expense of assigning the dower, whether by his own act or by legal proceeding; and he cannot exempt himself from the charge by a return to the summons, that he was ready and offered to assign the demanda at her dower before the summons was issued. The decision in this case is supported by Vance v. Becknall, 1 Bail. 140.

The motion is refused.  