
    The Creditors of John Scott, deceased, against Sarah Scott, Widow of the deceased.
    Wlioro die commission-<a*s named in «r^givea^vi- or'paroei'^'of of" the"vhoie of íe-ceased hus-hand’s estate, iiiil lió’ set Sicatiou" "of
    bounO to give her one-third f each separate tract or pared, or to in"lieu^tliere-of, on every parcel, unless it is agreed by the heir or creditors to.
    UPON a claim of the widow for dower.
    _ , . . . r 7 , , , , ' in this case a petition tor dower had been presented on behalf of the demandant, Mrs. Scott, and a writ for the ad" measurement of it had gone out to certain commissioners, *n ^le usua^ f°rm, commanding them to admeasure unto the widow, and assign her dower in several tracts of land described,, so me o£ which were lots in town with buildings thereon; others consisted of lands in the country. The commissioners had executed and returned the commission, stat*ng that they had assigned, and put the plaintiff in possession of a house and lot in Broad-street, in lieu of her , ^ dower in all the lands which belonged to the deceased.
    And now at the adjournment day of May term, Í78Í,
    
      Read moved that the return of the commissioners rnigltl _ u Le confirmed and made final: Whereupon,
    
      Pinckney on behalf of the creditors of the estate of the deceased Mr. Scott, who apprehended that there would be a deficiency in the estate for the payment of the debts, took exceptions to the proceedings of the commissioners, and moved that the return might not be recorded, until the objections on behalf of the creditors were heard and decided upon by the court.
    The objections were that the commissioners ought to have assigned the dower out of each tract, and not to have taken the most valuable part of the estate, and given that in lieu of the whole, (as this was stated to be.) That in so doing, they had very much impaired the value of that lot out of which the whole dower was assigned, and rendered it unsaleable and unproductive, being encumbered with her life estate. He contended that they had no right to do this, under the 
      act which authorised them either to assign dower in the common way, or to assess a sum of money (if they found the other to be inconvenient) for and in lieu of her whole dower.
    Read, for the plaintiff,
    argued, that the court could not take notice of the creditors of Scolds estate, because they had no privity of estate, or interest in the lands; their claims were against the executor in respect to the assets in his hands. He further urged, that the powers of commv-sioners, under the act of assembly, were large and extensive j that they are made the sole judges between the widow and the heir, touching the quantum of dower; that they are to proceed upon the view, and that their decision is declared to be u firmly binding and conclusive between the “ parties” He compared the present with sundry cases in which dower had been assigned by the heir in the same way as the commissioners have assigned in this case, and which had been supported by the court. He further observed, that the assigning of dower out of every house and every tract, would be much more likely to render the property unsaleable, by loading each with a life-estate, to the great inconvenience of the purchaser.
    Pinckney, in reply,
    contended, that the creditors of the estate, and particularly the judgment and execution creditors, who held an immediate lien upon the whole estate, were competent parties in this case. that this assignment went immediately to impair their remedy, and the court would take notice of them. That the lands in fact belong to them, and not to the heir, until the debts are paid. The commissioners, he said, came in lieu of the sheriff, who was the proper officer at common law, to admeasure and assign dower — and, like him, are liable to have their proceedings set aside, if they be contrary to law. To shew that the demandant in dower is to have a third part of each tract or parcel, and not one tract or part of a tract, “ in “ lieu of her dower in all,” he cited Co- Lit. 32. 6. He insisted that dower stood on the common law footing ; that the act of assembly had made, no alteration. Cited also 2 Black. 136. that dower must be set out with metes and bounds, a third part of each parcel; also, Co. Lit. S3. 6. The creditors, he said, were willing she should have her ample dower ; but that it should be according to law. That they had a right to insist upon this, as the estate was' insolvent, and ought so to be marshalled, that the creditors may lose as little as possible.
    The case was afterwards fully argued by
    
      Pinckney and Ford, for the creditors ; and
    
      Read and Pringle, for the demandant.
    After which
   Rutledge, Ch. J. and Bay, J.

As this is a new case, and is to form a precedent, it therefore ought to be solemnly decided. We will consult the other judges, and give our opinion on the return day. We have, however, no doubt at present as to one point, which is the right which the creditors had to be heard on the point, the estate being conceded to be insolvent; in which case they stand in the place of the heir at law.

On the return day, the court considering the novelty and magnitude of the case, ordered the great question, to wit, whether the commissioners could assign the whole dower out of one tract, to be argued again next term.

Rutledge, Ch. J.

delivered the opinion of the court to the following effect: The act of assembly makes no alteration as to the mode of assigning dower; because the words of the act follow the words and form of the judgment, and habere facias in dower at common law. Lilly’s Entries, 270. 598. Lit. 3. 36. 2 Black. Com. 129. 2 Bac. Abr. 118. The act indeed, gives the commissioners a power to relinquish the admeasurement of dower altogether, and of assessing a sum of money in lieu thereof. But one or the other, must be pursued solely ; and no other composition can be made unless by consent. The commissioners then, (if they undertook to admeasure dower at all,; stand in the place of the sheriff at common law.

At common law, where the husband is sole seised, dower must be admeasured off, per metas et hundas. 1 Roll. Abr. 682. 2 Bac. Abr. 135. But it may be otherwise assigned by consent. So also, Finer Abr. tit. Dower, p. 256. pl. 1, 2, 3. also, 257. pl. 12. So also a bad assignment may be rectified ; and a scire facias will lie to assign, de novo, p. 258. pl. 17. p. 260. pl. 12. The latter shews that the court has an equitable power of directing the apportionment of dower. Also in the same page, (Y. pi. 4.) it is shewn that an endowment of one manor out of three, is against common right; and in p. 261. (Z. pi. 1.) it is said, that the sheriff cannot assign against common right.

Common right gives the widow but one-third of each tract. De quocunque tenementis tertia pars. Co. Lit. 33. 6, Moor. pl. 47. 66. Also, Dyer, 137. In 3 Comy, tit. Dower, (p. 131.) it is said the widow shall not be endowed of entire tenements. So in Co. Lit. 35. a. If there be several feoffees, and one assign dower for all, the others cannot take advantage of it. If the thing out of which the widow be dowable at common law, be divisible, her dower must be set out per metas et hundas ; but if it be indivisible, then she must be endowed specially — as of the third presentation of a church — the third toll-dish of a mill — the third part of the profits of an office, &c. 2, Black. 136.

The act of assembly in this state was made, not to vary the right to dower, but to institute a more easy and certain mode of obtaining it. From the peculiar situation of this country, and the great disadvantage, sometimes to all parties, that may attend the dividing of a plantation, the commissioners are vested with powers to assess a sum of money, not as dower, but in lieu of dower. Where they do this, their return is indeed final, because they are made the judges of the value of the property.

But it would be exceedingly dangerous, if they possessed' “le Power °* giving a part of land in lieu of all the restv Dangerous to the widow ; for they might assign her an entire tract in some remote and uncultivated part of the state. Dangerous to purchasers; for they might lay the bur-then of all her dower upon those lands only which had been sold by her husband, and exonerate the heir from all in-cumbrance. In such case, it would be impossible for any man to know, or for counsel to advise him, how far the .claim of dower might, at a future, day, affect the lands he was purchasing. Instead of the widow taking her life-estate in one-third, the commissioners might assign her two-thirds, perhaps a larger portion still. With regard to the competency of the creditors in the present case to be admitted as parties, it is certain that lands being subject to judgments and executions, the creditors stand in the place of the heir, and possess his interest, which is always subject to their debts. If this were not so, the heir and widow colluding together, might always defeat the remedy of creditors. They might get dower assigned in those lands pnlv which are subject to the debts, and the creditors would have no remedy against the lands that had been antecedently sold by her husband, though they might be equally subject to her dcrwer. By this means the innocent creditors would bear all the burthen of the widow’s dower. She has her remedy against purchasers, (where she has never ^renounced,) and can compel them all to contribute to her claim ; but the creditors have no such right: their judgments bind only the lands that were unsold when the judgments were obtained. To refuse, therefore, to entertain these claims of creditors would he to open a wide door for fraud and injustice.

Upon the whole, therefore, the Court is of opinion that the commissioners have not pursued the terms of the law, or the powers given them by the writ of dower,-by selecting the most valuable part of the prpperty, and giving it to the widow in lieu of the whole ; but that they ought to have given her one-third of each separate tract, or assessed a sum in lieu of the same. Whereupon it was ordered that the proceedings of the commissioners be set aside ; and that a new writ of dower do issue.

The return of the commissioners was afterwards made to the said writ, conformable to the principles in the fpre* going case, and finally confirmed.  