
    Ann M. Henagan vs. J. J. Harllee and others.
    
      Dower — Administration—Executors—Account. .
    
    A widow is entitled to dower in land mortgaged by her husband to secure the purchase money. In such a'case, it is the duty of the executors to pay the mortgage debt out of the personal estate; and if, upon their failure to do so, the creditor should enforce his lien by sale of the land, the widow will be entitled to have her claim of dower therein satisfied out of the personal estate.
    Under a bill for dower, the claim for an account of rents and profits limited, under the circumstances, to the time of filing the bill.
    BEFORE DUNKIN, CH, AT MARION,
    FEBRUARY, 1858.
    This bill was filed by the widow of Dr. Barnabas K Hena-gan, late of Marion district, against his executors-and children, for delivery to complainant of the legacies bequeathed to her by the testator, and also for recovery of dower, with account of rents and profits, in several tracts of land of which the testator died seized.
    Dunkin, Ch. This cause came on for a hearing on the bill and answer, and counsel having been heard, it is the opinion of the Court that the complainant is entitled to dower in all the lands whereof the testator, Barnabas K. Henagan, was seized at his death, including the lands ordered to be sold for the payment of debts, which can only be sold subject to her said right of dower, and also the tract, called the Cannon land, respecting which it is stated in the answer, that it was mortgaged to secure the purchase money by deed of even date with the conveyance to the testator; and that a large part of the purchase money remains unpaid — and that it is the duty of the executors to pay and satisfy the said mortgage debt out of the personal estate, and in the event that the mortgage creditor shall proceed to enforce his , lien on default of payment by them, that the complainant is entitled to have her claim of dower therein satisfied out of the personal estate. It is further the opinion of the Court, that the complainant is entitled certainly, under the circumstances of this estate, as disclosed in the answer, to have delivered to her the specific legacy for life, of slaves, stock, household and kitchen furniture, farming utensils, &c., given to her in the first and second clauses of the testator’s will.
    It is therefore ordered and decreed, that a writ of admeas-urement of dower do issue, directed to suitable persons, to be name’d according to the practice of the Court, authorizing and requiring them, or a majority of them,' to admeasure and set out to the complainant, her dower or thirds, in the several tracts of land described in the pleadings, and make return of their proceedings therein to this Court.
    It is further ordered, that the Commissioner hear evidence, and state an account of rents and profits of the said several tracts of land since the time of filing the bill, and ascertain and report the complainants one-third part thereof.
    It is further ordered, that the defendants, James J. Harllee • and James H. Henagan, executors of the will of B. K. Hena-gan, do surrender and deliver to the complainant, without conditions, the several slaves and their increase, the horses, cattle, hogs, wagon and harness, cart, household and kitchen furniture, plantation tools, and farming implements, which, in the first and second clauses of testator’s will, are bequeathed to her, to be by her held and enjoyed for life, according to the terms of the said bequest.
    The defendants appealed on the grounds:
    1. Because, with respect to the lands known as the Cannon lands, the same were under a mortgage for the purchase money, and complainant can only take her dower subject to said mortgage, and only in such portions of said lands as testator had a valid legal title, and testator’s personal estate is not liable to be subjected to pay said mortgage to enable complainant to get her dower.
    2. Because, it having been conceded on the trial that complainant purchased certain articles of personal property, for which she had not accounted, and had also entered into an agreement with the defendants, as alleged in their answer, with respect to the hire of the slaves specifically bequeathed to her, his Honor should have decreed that these amounts should have been set off against her dower in said lands.
    3. Because, with respect to the property bequeathed, complainant in the first and second clauses of said will, she is not entitled to have a delivery of the same or an account therefor, until the testator’s debts are paid and satisfied.
    The complainant also appealed on the ground:
    That the complainant being entitled to her dower in all the lands whereof the testator died seized, and having been guilty of no laches in asserting her right, was entitled also to an account of, and to her one-third part in the rents and profits of all the said lands, from the accrual of her said right, at the death of the testator, and not merely from the time of filing the bill, and his Honor ought soto have decreed.
    
      Harllee, for appellant.
    
      Inglis, contra.
    
      
      
        Gordon vs. Stevens, 2 Hill. Ch.46 ; Adsit vs. Adsit, 2 Johns. Ch. 448; Brown vs. Caldwell, Sp. Eq. 332; Whilden vs. Whilden, Riley, Ch. Ca. 205; Francis vs, Lehre, 1 Rich. Eq. 271; Wilson vs. McConnell, 9 Rich. Eq. 500.
    
   The opinion of the Court was delivered by

Dunkin, Ch.

In reference to the plaintiff’s right to dower, and the extent of that right in premises mortgaged hy the testator, the Court concur in the decree, and do not deem it necessary to add to the authorities cited.

The defendants second gfound of appeal, and the plaintiff’s appeal may be considered together. In this Court the widow, whose right of dower is established, is also entitled to an account of the rents and profits. But the extent of that right may be modified and restricted by the circumstances of the case. . In Bullock vs. Griffin, 1 Strob. Eq. 60, the account was limited to the time of filing the bill.

Dr. Henagan died in 1855. The executors were not obliged, in the opinion of the Court, to deliver to the widow the property specifically bequeathed until the expiration of a year and day. The negroes, however, were delivered to her forthwith, upon the understanding that they should not be precluded from demanding a fair hire under certain circumstances. The plaintiff forbore to set up her claim until more than a year after the testator’s death. The decree limited the account of rents to the time of filing the bill, and did not allow any set-off to the claim óf dower for the year’s hire of the negroes. Both parties appeal. Butthe Court is satisfied with the judgment of the Chancellor, and the decree is affirmed and the appeal dismissed.

Johnston and Wardlaw, CC., concurred.

•Appeal dismissed.  