
    Wells’ Guardian, Appellant, vs. Moore, Respondent.
    1. Under the act of congress of March 3d, 1SJ.3, a widow is not entitled to dower in land to which her husband had a mere right of pre-emption, which had not been consummated at the time of his death.
    
      Appeal from Platte Circuit Court.
    
    Hayden, for appellant.
    The wife of Moore is not, as the widow of Horeb Wells, entitled to dower in the land in controversy, because, 1. Horeb Wells was not, nor was any other person to his use, seized of an estate of inheritance in the land at any time during his life. 2. At the death of Horeb Wells, the land belonged to the United States, in lavr and equity, and the defendant, Moore, purchased it with the money of complainants, as their guardian, and thereby it became their land and not the land of the deceased. 8. The mere possession of the land by Horeb Wells, at the time of his death, was not such an interest in the land as a court of equity could enforce in his behalf, against the government, and having been abandoned to the complainants by Moore, he cannot resist the rights of the plaintiff asserted in this suit, nor can the court take into consideration the widow’s claim, if she had any, as she is. not a party to this suit.
   Scott, Judge,

delivered the opinion of the court.

This was a bill in chancery, filed by the complainants, by their guardian, against McLain Moore, the defendant, for an injunction and relief. The complainants were infant children of Horeb Wells,' who died in 1839, leaving a widow, Rachael Wells. Horeb Wells, at the time of his death, was residing on a quarter section of land, in township fifty-three, range thirty-six, and was entitled, under the act of congress of 22d June, 1838, to prove a right of preeemption to, and enter the said quarter section. He died, however, before this was done. His widow and children remained on the land. In 1840, Moore, the defendant, intermarried with Mrs. Wells, the widow of Horeb Wells, and lived 'with her on the quarter section to which her former husband was entitled to a right of preemption. Moore afterwards, on the 14th May, 1844, entered the land for the heirs of Wells, and took a certificate in pursuance to the act of March 3d, 1843. After entering the land, Moore committed waste and made profits of the timber growing upon it. This bill was brought for an injunction and account. On a reference, the commissioner, in stating the account, acted under the view that the widow of Horeb Wells was entitled to dower, and allowed tbe complainants tbe profits of two-thirds of tbe land. Tbis action of tbe commissioner was sustained by tbe court below, and an appeal was taken to tbis court. So tbe only question in tbe case is, whether Mrs. Wells, tbe widow, was, under tbe circumstances, entitled to dower in tbe land on which her former husband lived, at tbe time of bis death.

We are at a loss to find any ground upon which tbe widow’s right to dower in a claim to a preemption by her husband can be sustained. The justice of such a claim is obvious, and it is a little remarkable that it should have been overlooked by tbe congress of tbe United States, especially as tbe contingency of tbe death of tbe preemptor was in contemplation when legislating upon tbe subject. However much we may be disposed to favor such a claim, and although we may regret that no provision has been made for tbe widow, yet we do not conceive that tbe omission can be obviated by tbe action of tbis court.

Although tbe act of congress of May 29th, 1850, granting preemptions to settlers upon tbe public lands, and tbe several acts supplementary thereto, were entirely silent in relation to tbis subject, yet tbe published circulars of the commissioner of the general land office, recognized tbe settlement and occupancy of the husband, in the event of his death, as tbe settlement and occupancy of the wife, and permitted her to prove the right of preemption and enter tbe land. Things remained in this state until tbe. 3d March, 1843, when it was enacted, that in any case, where a party, entitled to claim tbe benefits of any of tbe preemption laws, shall have died before consummating his claim, by filing, in duo time, all tbe papers essential to the establishment of the same, it shall be competent for tbe executor or administrator of such party, or one of tbe heirs, to file tbe necessary papers to complete tbe same ; provided that tbe entry, in such cases, shall be made in favor of the heirs’ of tbe deceased preemptor, and a patent thereon shall cause the title to enure to the said heirs, as if their names bad been specially mentioned.” Here, then, on the death oí the preemptor, there is an original grant to his heirs, without any notice or recognition of the widow’s dower.

There is no foundation in 'our law for saying that the widow, as such, is an heir of her husband, but in the event of the failure of all other relatives, who are made heirs by the statute of descents and distributions. The dowress holds of the heir, but by the institution of the law, she is in of the estate of her husband, so that, after the heir’s assignment, she holds by an infeudation from the immediate death of her husband. Hence it is, that dower defeats descent, because the lands cannot be said to descend as demesne, which are in tenure ; and the assignment of dower, being in the nature of an infeudation, and taking place immediately from the death of the husband, there are only two-thirds which descend as demesne. Butler’s note to Coke. A widow comes to her dower in the per, by her husband, and is in continuation of his estate, which the heir or terre tenant is but a minister or officer of the law to carve out to her. lb. These acknowledged principles of the common law, independently of the first section of the act concerning descents and distributions * clearly establish the position that a dowress, as such, is not an heiress. _

The widow, as such, not being' an heiress, the only other ground on which it can be conceived that her right to dower exists, is, that there is a resulting trust to her. But this is not tenable. The representative of the husband’s estate would not be justified in taking any portion of her dower interest in his estate, and laying it out in the purchase of an interest in the preemption. He could only use the heirs’ money for that purpose, and, consequently, the trust can only result to them. The entry in this case is made under the above recited act of 3d March, 1843. It is made -in the name of the heirs of Horeb Wells. This must be considered as an original grant to them, and we can find no principle on which the widow is to be allowed dower in a right of preemption not consummated.

In the case of Davenport et al. v. Farrar, 1 Scam. 314, it was held that a preemption right is not an estate of which a widow can be endowed.

The other Judges concurring, the decree will be reversed and the cause remanded.  