
    
      John Henry Mey, Ex’or, vs. Jane Mey et al. Rene Godard vs. John Henry Mey, Ex'or, et al.
    
    The widow of a devisee is entitled to be endowed only of what remains of the land after the debts of the devisor are paid.
    In Equity, a widow is entitled to an account of rents and profits, or the interest when it is reduced to money, of her dower.
    
      Before DeSaussüre, Ch., at Charleston, January, 1832.
    The defendant, Jane Mey, widow of Charles S. Mey, appeals from so much of the Chancellor’s decree as limits her dower, of the real estate devised by Florian C. Mey to John Henry Mey, and the husband of this defendant, to an assessment on a moiety of the clear residue, after payment of the debts of the devisor. And she moves that the said decree may be reformed in that particular, so as to direct her dower to be admeasured or assessed, of an entire moiety of the real estates whereof her husband and the said John Henry Mey were seized, as tenants in common, under the said devise; and that interest may be ordered to be paid to her on the several sums assessed, in lieu of her dower, in both these cases, from the period of her husband’s death. And in support of this motion, she relies upon the following grounds :
    1. That the widow’s right of dower extends, in law, to the entire real estate whereof the husband was seized during the cover-ture, and that she is not liable for contribution for the removal of general charges on the estate, in aid either of the heirs of the husband, or of creditors who stand in the place of the heirs, and who have not a permanent lien.
    2. That whatever may be the rule at Law, in Equity the widow is entitled, by the settled practice of the Court, to an account for rents and profits, where her dower is admeasured, or to interest, where a sum of money is assessed in lieu of dower, and that this practice ought most especially to be adhered to, where, as in this case, the widow has been made a party defendant to a suit for settling the estate, and has been prohibited, during the progress of a tedious litigation among other parties, from proceeding to recover her dower at law.
    Bailey, for appellant.
   The opinion of the Court was delivered by

Johnson, J.

We concur with the Chancellor, that the widow of Charles S. Mey was only entitled to be endowed of the one-third part of the balance of the proceeds of the sales of the real estate, after the payment of the debts due by the estate of F. C. Mey. It is true that the wife is entitled to be endowed of all the real estate whereof the husband was possessed during the coverture. But the seizin of Charles S. Mey in the lands devised to him by his father was only sub modo, and she is only entitled to be endowed after that manner. • By law, lands of one deceased are assets to pay debts, and the devisee or heir must take, and is seized, subject to that lien or incumbrance. Suppose, for instance, the debts had swallowed up the whole proceeds of the sales. In that case, Charles S. Mey would have taken nothing whereof the wife could be endowed; and yet, in law, he was seized of the lands of the testator immediately on his death.

We are of opinion, however, that the widow of Charles S: Mey is entitled to an account of the rents- and profits, or the interest, when it is reduced to money, of her dower. There is, I believe, no case in which it has been refused in Equity, and, as I understand it, the reason why she has not been allowed it at law is, that the mode of proceeding there is not adapted to such an account, and, but for our own adjudications, I should think there was no great difficulty in framing, a precedent, in analogy to our action of trespass to try titles, in which rents and profits might be recovered in the shape of damages. She has had the benefit of this rule, as we understand it, in apportioning her dower in the proceeds of the lands devised by F. C. Mey to her husband, the balance being made up of principal and interest.

In tbis respect, therefore, the decree of the Circuit Court must be reformed; but in all other respects it is affirmed.

O’Neall and Harper, JJ., concurred.

Decree modified.  