
    Israel W. Pickens vs. Eliza G. Wilson.
    While it seems that the decree of the piobate court allotting dower, is binding and conclusive upon the representatives of the husband who are.parties to the decree, yet it is not so upon one claiming to hold title paramount to that of the husband, and a stranger to the decree of the probate court.
    Upon the allotment of dower to the widow, in lands claimed by and in possession of a third party by alleged paramount title, the remedy of the dowress to assert her right and recover possession is by ejectment; and if the widow be in possession, the claimant’s redress is by like remedy.
    The chancery court will not, therefore, have jurisdiction of a bill fded by one claiming to hold certain lands of the husband exempt from the wife’s dower, to enjoin the widow from proceeding to enforce a decree she has obtained in the probate court against the representatives of her husband, awarding her dower in the lands claimed by the complainant; the right of the widow to possession of her allotment of dower, was purely a legal one, to be enforced by her by ejectment when it could be resisted by complainant.
    There was, therefore, no ground for the interposition of the chancellor.
    In error from the vice-chancellor’s court at Carrollton; Hon. Henry Dickinson, vice-chancellor.
    Israel W. Pickens, on the grounds set forth in the opinion, filed his bill to enjoin Eliza G. Wilson from having a decree obtained by her in the probate court, awarding her dower as the widow of William L. Wilson, in certain lands claimed by complainant,' executed by her, so as to have her dower set apart to her. It is not necessary to notice the pleadings further than is done in the opinion. On the hearing, the court below, dismissed the bill, and complainant sued out this writ of error.
    
      J. M. Dyer, for plaintiff in error,
    Cited Hutch. Dig. 200, 201; Act 1841, p. 59, § 18.
    
      Brooke, for defendant in error,
    cited Hutch. Code, 177.
   Mr. Justice Smith

delivered the opinion of the court.

This bill was filed in the vice-chancery court for the northern district. The material statements are: that William L. Wilson died seised of a considerable real estate. lying in the county of Holmes. That several judgments existed against him at the time of his death, on which executions had issued. That these executions were levied on a part of the lands, which was sold at sheriffs sale, when complainant became the purchaser. The remainder of the lands of Wilson was regularly assessed for the taxes due for 1841, which, not being paid, it was regularly advertised and sold by the tax collector, of said county, according to law, and complainant was the purchaser at the sale.

Wilson died intestate and without children, leaving a widow, Eliza G. Wilson, the defendant in error, who filed her petition for dower in the probate court of said county. Her petition was allowed, and a decree rendered allotting dower in the lands of which complainant was the purchaser at the sheriff’s and tax collector’s sale.

The bill avers, that Mrs. Wilson is not entitled to dower in these lands, particularly as it regards the portion sold for taxes, as the sale by the tax-collector passed the title unincumbered of her claim of dower; and prays an injunction to restrain her from enforcing the decree of the probate court.

The defendant answered, and the vice-chancellor on final hearing having dismissed the bill, the cause was brought up by writ of error.

The case presents a single point, that is, whether the vice-chancery court had jurisdiction to entertain the bill. There can be no question that it had not.

In a proceeding for dower in the probate court, the only parties who can contest the right of the petitioner are the representatives of the husband. If there be proof of marriage, of the seisin of the husband during coverture, of non-alienation on the part of the wife, and of the death of the husband, the widow as against his representatives, will be entitled to dower. As to them, the judgment will be binding and conclusive, unless reversed by a due course of procedure. But as this court is essentially incapable of trying a contested question of titles, a stranger who would resist the claim of dower on the ground of paramount title in himself cannot be heard. Hence the decree for dower in favor of the defendant has in no respect whatever affected the rights of the complainant. The decree merely established that the petitioner was the widow of the deceased, having a right of dower out of his estate, not that the estate which is claimed by the complainant is subject to such right. If he should choose to do so, he may put her to her ejectment; or if she has obtained possession of her dower-land, he may resort to the same means for the purpose of asserting his title. James et al. v. Rowan, 6 S. & M. 402. The proper forum for this is a court of law, where the adjudication would in no wise be controlled, so far as the superiority of the respective titles is concerned, by the decree in the probate court. As the vice-chancery court had no jurisdiction of the case, it is unnecessary and perhaps improper to notice any other question raised in the argument.

Let the decree be affirmed.  