
    William Fox et al. v. Marianna Pratt.
    1. A widow is dowable of tlie surplus remaining after the payment of a purchase-money mortgage.
    2. Having had her full dower in the residue of the estate, a portion of which was sold, and the proceeds applied to remove a purchase-money mortgage, larger in amount than the property mortgaged, she can not thereafter be endowed of such property as though no mortgage existed.
    3. The heirs and others having, with the sanction of the court, sold property of which the widow had already been endowed, and with moneys arising therefrom having paid off the purchase-money mortgage, the widow is not thereby invested with right of dower in the whole property so-mortgaged.
    Error in tbe District Court of Muskingum county.
    This is a petition in error to reverse tbe judgment of the-District Court of Muskingum county.
    Marianna Pratt brought suit in tbe Court of Common Pleas, Muskingum county, claiming dower in certain lands-of her deceased husband, John R. Pratt. The property bad been sold, by the heirs of Pratt, to William Eox, and. the heirs appear, and file answer denying the right of recovery.
    Upon the property in which dower is sought John R.. Pratt had executed a purchase-money mortgage, which was unpaid at the time of his death.
    The Common Pleas awarded dower subject to the mortgage. On appeal the District Court awarded dower in the-whole premises, irrespective of the mortgage, and the following is the judgment of the court:
    “ This cause coming on to be heard on the petition, answer, and reply, and the agreement of parties as to facts in tbe case, was argued by counsel, whereupon the court, being fully advised in the premises, find that the mortgage in the pleadings set forth, was given by John R. Pratt for the purchase money in the petition described; that petitioner did not join in executing said mortgage; that Johu R. Pratt died seized of said land and of the mill property in the pleadings mentioned, and also of two other tracts of real estate; that proceedings were instituted by the administrator of John R. Pratt, in the Court of Common Pleas of this county, seeking an order to sell real estate to-pay debts, etc.; that petitioner and the heirs of John R. Pratt were defendants therein; that petitioner answered,, claiming dower in each of the several parcels of land, but not referring to the land in the petition herein described ;• that an order was made that dower be assigned to petitioner in each of the other tracts of land, and that the land of which petitioner claims dower herein be sold, free-from dower, and all of the land of John R. Pratt be sold to pay the debts of John R. Pratt. The dower of petitioner in each of the other tracts of land was set off’ and assigned to her. No dower was assigned in or off the land in which she now asks dower. That pending the notice given by the administrator, of the sale of said real estate, the heirs of John R. Pratt, with the assent of the administrator, sold the mill property for $10,500, the purchase money being paid to the administrator, to be by him applied to paying the debts of John R. Pratt. All of the residue of the real estate was withdrawn from sale, and the said arrangement, sale, and withdrawal being reported by the-administrator to the court, said report was by the court approved and the proceedings confirmed.
    “ The said administrator of John R. Pratt, out of the-$10,500 arising from sale of the mill property, paid off and discharged the said mortgage debt. Though the personal assets of the estate of John R. Pratt exceeded $20,000— though oesides this and the money arising from sale of the mill property, there was delivered'to the said administrator the further sum of about $2,100, being part of money arising from sale of other parts of the real estate of J ohn R. Pratt in proceedings in partition — though after paying off and discharging all the debts and charges against the estate of John R. Pratt, there remained to the heirs a fund arising from said sale in partition and the real estate described in the petition of plaintiff.
    “ The court find petitioner is not estopped by the- said proceeding by the administrator of John R. Pratt for an ■order to sell real estate, etc., though her rights to be endowed in the real estate in • the petition herein described were not determined in the proceeding.
    “ That Marianna Pratt is entitled to dower in the real ■estate in her petition described. It is by the court therefore considered, ordered, and adjudged that the petitioner be endowed of the one full equal third part of .the land in her petition described. The defendants except to the decree of the court, and this cause is remanded to the Court •of Common Pleas to carry this judgment into execution.”
    
      Evans § Beard, for plaintiff in error,
    contended that the mortgage lien was superior to the claim for dower. That John R. Pratt never was, in contemplation of law, seized -of an estate of inheritance in the land in controversy, during the coverture, but of an equity of redemption only, .and the widow was dowable only out of the surplus after the mortgage had been paid, Cass v. Martin, 6 N. H. 25; 1 Wash. on Real Prop. 244; 8 Barb. 616; Williams v. Woods, 1 Humph. 408; 1 Hill. on Real Prop. 136, sec. 62; Swaine v. Perine, 5 Johns Ch. 482; 5 Ib. 452: 4 Mass. 456; Clark v. Monroe, 14 Mass. 350; Fish v. Fish, 1 Conn. 559; Crafts v. Crafts, 2 McCord, 54; 1 Wash. on Real Prop. 186; 14 Wend. 233; 4 Gray, 46; 34 Me. 50.
    
      T. J. Taylor, and A. P. Blookson, for defendant in error,
    'insisted that after the mortgage had been paid by the administrator out of the proceeds of the sale of other lands, the widow was let in to dower of the premises in controwersy. Hitchcock v. Harrington, 6 Johns. 290; Collins v. Tony, 7 Johns. 278; 1 Scrib. on Dower, 527; Mathewson v. Smith, 1 Ang. 22; McArthur v. Porter, 1 Ohio, 99; Taylor v. Fowler, 18 Ohio, 567; Jackson v. Halleck, 1 Ohio, 318; 
      Brush v. Kingsley, 14 Ohio, 24; Carter v. Goodwin, 3 Ohio St. 75; 8 Ohio St. 234; 34 Me. 50; 17 Mass. 564; 1 Wash. on Real Prop. 186.
   Wright, J.

The facts necessary to the understanding of the point decided are these :

John R. Pratt, husband of Marianna Pratt, died leaving, among other property, two lots of laud upon which subsisted a purchase-money mortgage. The administrators instituted proceedings in the Probate Court to sell land. The widow, Marianna Pratt, was assigned dower in all the real estate, other than that covered by the purchase-money mortgage, which was ordered to be sold free of dower. All the land was ordered to be sold to pay the debts.'

At this juncture an arrangement was effected between the administrator and heirs, by which a certain tract, in which Marianna had already received her dower, was sold, the proceeds of which, with other moneys of the estate, liquidated all the debts, including that represented by the purchase-money mortgage. It appears from the pleadings that the land in which dower is now sought, was not worth the amount of the mortgage debt, and sold for a less sum, .and in the Probate Court the widow made no application for dower in these premises, whether because the right was deemed worthless or not, does not appear.

It will be seen, therefore, that Marianna Pratt has had her dower in all the other real estate of her husband, save these two lots. That practically, with' money arising out of the sales of land, in which she had been so endowed, the mortgage had been paid and the lots relieved of the incumbrance. Thereupon she asks dower although the incumbrance was greater than the value of the property. Th^ District Court held that she was entitled to dower to the full extent of the land, as though no mortgage existed. It has already been held that in case of a purchase-money mortgage, the widow is entitled to dower, not in the whole property, but only in the surplus after paying the mortgage debt. Culver v. Harper, ante, page 464; State Bank v. Hinton, 21 Ohio St. 509. This is the rule as regards the rights pertaining to the purchase-money mortgage, and those claiming under that instrument. Where other interests exist, other considerations may perhaps arise.

If, therefore, this property had been sold under the purchase-money mortgage, the right of dower would be limited to the surplus.

In this case, however, by an arrangement between the administrators and-dreirs, their property was sold, and thus the mortgage was paid. This, it is claimed, lets in the-widow to dower in the whole premises, as if the mortgage had never existed, or had been paid by the husband in his. lifetime.

As before stated, proceedings had been instituted in the-Probate Court to sell all the land of the intestate. Had these proceedings resulted in an actual sale of the mortgaged property to pay the mortgage debt, there is no question but that the widow’s dower would have been in the surplus only. The satisfaction of the mortgage was accomplished by the co-operation the heirs and administrators with the sanction of the court. To allow this action to create in the widow a right, which without it did not exist, or at least was valueless, is at the best inequitable.

Had she, at the time dower was originally assigned, set up the claim she now does; had she insisted that the mortgage must be paid, in order that she might be endowed of the property as though it were unincumbered, it certainly would have caused some modification of the rights she subsequently secured and now holds. All parties then seemed to think that her interest in this property was practically nothing, by reason of the incumbering mortgage rendering the property itself worthless. Proceeding upon this idea, she received her full share, out of other lands, and we can not see the propriety of her now departing from the idea which gave her dower, to the injury of those so giving it.

If she had rights in equities, they were equities existing at the time of her husband’s death. When he died he had but an equity of redemption; he owned the estate, subject to the mortgage debt, and of this alone was she dowable, .and in giving her dower in the whole premises the District •Court erred.

Judgment of District Court reversed.

Scott, Chief Judge, Day, Johnson, and Ashburn, JJ. •concurred.  