
    James Miller and Others, Appellants, versus Rebecca Miller.
    In the appointment of commissioners to assign to a widow her dower, the judge of probate is not confined to freeholders of the county where the husband last dwelt.
    This was an appeal from a decree of the judge of probate for this county, accepting the return of commissioners appointed by him to assign to the respondent her dower in the estate of her late husband, William R. Miller, the appellants being her heirs at law.
    On inspecting the return, it appeared that the commissioners had valued the whole real estate of the deceased at $ 30,000 ; that it consisted of a mansion-house and * homestead, [ * 455 J with some pasture lots, in Milton in this county ; two dwelling-houses and a vacant lot in Boston, in the county of Suffolk, and a tract of uncultivated land in Machias, in the county of Washington. One of the dwelling-houses in Boston was valued at $ 10,000, and assigned to the respondent as her dower ; the vacant lot being valued at $8,900.
    Two reasons of appeal were filed. 1. That two of the commissioners were not freeholders in this county, where the deceased last dwelt, but were inhabitants and freeholders in the county of Suffolk. 2. That the commissioners had assigned to the respondent more than one third part of the deceased’s estate, according to the true intendment of law.
   Per Curiam.

The first objection cannot prevail. There is no statute directing the judge of probate to appoint commissioners who reside only in the county to which the deceased belonged. Indeed, his power to order the assignment of dower is merely by implication, being inferred from the provisions of certain provincial acts. By the statute of 1783, c. 40, which has been cited, where the widow obtains her writ of seizin, the sheriff is directed to cause her dower to be set forth by freeholders of the same county ; but this "refers to the county wherein the lands lie, and not where the husband dwelt at the time of his death. Had there been in this case no real estate but at Machias, it could not be supposed that commissioners must be sent from this county to assign the dower. As the greater part of the estate lay in this copnty, and in Suffolk, it was correct in the judge to appoint commissioners resident in each of those counties.

Richardson, for the appellants.

Metcalf, for the respondent.

The case of Leonard vs. Leonard & al. was considered by the Court as decisive of the second point made in this ; and the decree was, thereupon, reversed, and the cause remitted for further proceedings in the Court below. 
      
       4 Mass. Rep. 533.
     