
    Thompson P. Ware et al. vs. Louisa G. Washington.
    It is not competent for the prohate court to adjudicate on conflicting rights in proceedings for dower; the parties contesting the right, must be left to their appropriate legal remedies after an allotment has been made.
    In an application for dower, the widow must establish the seizin of her husband either actual or constructive, at some period during the coverture, before her dower can be allotted to her.
    A widow is not entitled to dower in lands which her husband held, only by virtue of a lease for ninety-nine years ; such lease vested but a chattel interest in the husband, out of which the widow is not dowable.
    Appeal from the probate court of Rankin county ; Hon. James Finlay, judge.
    Louisa Washington, as the widow of William H. Washington, claimed by petition her right of dower in four lots in the town of Brandon, in this state, to which she avers that her husband in his life-time acquired a paramount equitable ownership. She states that his estate was insolvent, and that the lots in question had been sold at marshaPs sale prior to his death.
    Thompson P. Ware and William C. Harper, by petition, prayed the court to admit them as defendants to the widow’k demand; as tenants in possession under an unexpired term of ninety-nine years, from the commissioners of the sixteenth section of school lands, in which the land lay.
    They were accordingly made defendants. On the trial of the petition, to prove seizin in her husband, the demandant read a deed to James R. Harris, from the trustees of the Brandon Academy ; by which the trustees conveyed to him a lease for ninety-nine years to the property in controversy; she read also a deed from Harris to her husband, vesting in him a similar estate to the same land.
    
      It was proved, by various witnesses, that at the time of Washington’s death, and shortly previous, he did not reside on the premises in controversy.
    The defendants demurred to the evidence, for want of proof of demandant’s marriage and the seizin of her husband; and the judge decreed in behalf of the demandant, and allotted the dower accordingly; when the defendants appealed, and now assign as error the want of proof of the marriage of the demand-ant, and of the seizin of her husband.
    
      Ware and Harper, in proper persons.
    The petition admits the insolvency of William H. Washington, and a sale of the property in question before his death is also admitted ; thus resting the claim for dower on the statute investing the widow, in case of. insolvency, with one-third of the lands, tenements and hereditaments. H. & H. 402, sec. 60. She does not succeed to the personal property, as when estate is solvent; the terms of the statute, “lands’, tenements and hereditaments,” contemplate real estate. Nor could she, unless by a statute of the state, be endowed of any estate inferior to one of inheritance. 4 Kent’s Com. 35, 37, 38, sec. 3; 1 Cruise’s Dig. 8, 37, sec. 1, p. 46, sec. 52 to 56, p. 9, 122, sec. 11.
    The land of which the petition seeks dower, is lots 5, 6, 7 and 9, in square No. 2, being the whole of said square, in section 16, township 5, range 3, east, in Rankin county. The trustees of school lands in Rankin county were empowered to lease for a term of ninety-nine years, the 16th section of township 5, range 3, east, in said county. Pamph. Acts, 1830, p. 36.
    The general law of 1833 extends the powers of trustees of sixteenth sections; (see Pamphlet Acts, 146,) but is not applicable to the sixteenth section in question. And the act of 1836 (see Pamphlet Acts, 392,) transfers to the trustees of Pearl River Academy, (name changed to Brandon Academy) all the powers granted by the act of 1830, cited above, and authorizing further sales, conveyances, &c. The legislation in relation to the sixteenth section, which includes the lots in controversy, is special, and the deeds (as read in evidence by the defendant in error,) first from the commissioners to J. R. Harris, and second from Harris to W. H. Washington, are under the acts cited, and expressly create a lease for the term of ninety-nine years from 1830.
    But to such estate dower does not attach; for though the lease extended to a thousand years, its character and dignity would not rise above that of personal property. Indeed, it is nothiug more.; and on the death of the lessee, his administrator might treat it accordingly, and sell without an order or decree of the probate court. See 2 Kent, 342, sec. 1; 5 Mass. R. 419; case of Gay, on petition; Brewster v. Hill, 1 N. H. R. 350.
    The lessor is the government, and in it abides the reversionary interest. On the death of a natural person in the attitude of the government, his relict, on the expiration of the term of years, would succeed to dower; but the widow of the first, or any intervening tenant, would not. Cruise’s Dig. 127, sec. 11,' p. 123, sec. 15 & 16, p. 188, sec. 52.
    The second error assigned is, that no evidence was adduced in the probate court to establish any marriage of the defendant in error with William H. Washington. Marriage is one of the three prerequisites to dower, and in the language of this court, in the case of Randolph v. Doss and wife, 3 How. 214, “ is one of the first steps in the proof of the demandant’s title.” But unlike that case, the present plaintiffs in error were not silent on this.point in the court below ; and otherwise unlike it, they did not “ proceed in the trial on the assumed proof of marriage.” But as shown by the bill of exceptions, when this objection with others was raised in the probate court, no excuse or apology was shown for the omission, or any evidence whatever, of niarriage submitted to the court by the petitioner. The court, in the exercise of its discretion, could and would have given leave for the introduction of that proof, had the counsel thought fit to propose it. But in the absence of any semblance of proof, without even the common ex parte affidavit in verification of the matters in the petition, the court below surely erred in granting the prayer of it.
    
      
      Fonts and Hutchinson, for appellee,
    contended,
    1, That, although according to the common law, the widow was endowable only of an estate of inheritance of lands, tenements and hereditaments, of which the husband at his death or during coverture had seizin ; yet, that by virtue of our statutes, the leasehold estate in question ceased to be a mere chattel interest, devolving upon the personal representatives, and not descendible to the heir; but became an inheritable estate, a freehold, a peculiar statutory estate, unknown to the common law.
    On this point, they cited 2 Bl. Comm. 16, 41-43, 104, 107, 121, 122, 124, 143, 155; Acts of 1830, p. 36; of 1833, 99; of 1836, 392; of 1841, 127; of 1842, 130; H, & H. 402, § 60; Ibid- 351-353.
    2. As to the question of marriage, it sufficiently appears in the record, was averred by the petition, was not denied or put in issue by the defendants, and was alluded to by the witnesses when they spoke of the deceased’s family and their occupation of the premises.
    
      Ware and Harper, in reply,
    cited
    5 Ohio R. 204; 7 Ibid- 119 ; Swann’s Stat. 289 ; McLean v. Rockney, 1 West. Law Jour. 300; S. & M. Chan. R. 107.
   Per Curiam.

The appellee filed her petition in the probate court of Rankin county, for an allotment of dower in certain lots of land in or adjoining the town of Brandon, which was resisted by the appellants, who are tenants in possession. We have decided, at the present term, that it is not competent for the probate court to adjudicate on conflicting rights in proceedings for dower, but that parties must be left to their appropriate legal remedies after an allotment has been made. But the widow must establish the seizin of her husband, either actual or constructive, at some period during the coverture. Doss and Wife v. Randolph, 3 How. 205; Caruthers v. Wilson, 1 S. & M. 527. In order to do this, she produced the deed under which her husband claimed title, and if by that her right is defeated, then of course she failed in showing a right to dower, and the judgment must be manifestly wrong.

The demandant’s husband held but a lease for ninety-nine years, which vested but a chattel interest. The statute provides that the widow shall be endowed out of the “ lands, tenements and hereditaments, of which her husband died seized, or had before conveyed,” &c. H. & H. Dig. 351. By another provision, we find that she may be endowed of certain equities. But her husband’s title was not to lands, tenements or hereditaments,” nor to any equity in them. There can be no technical seizin of a chattel interest. By the common law, the terms used in the statute have a well defined meaning, and we can find no authority in the statute to justify us in departing from their common law meaning. By the rules of the common law, the wife can only be endowed out of a freehold estate of inheritance. Clancy’s Husband and Wife, 195; 4 Kent’s Com. 35, 40; Cruise’s Dig. Title Dower. The lease for ninety-nine years, was but a chattel real, and dower is a freehold estate, which never can be carved out of an estate for years. A lease for any definite period, is an estate for years. A lease for one year, and a lease for ninety-nine years, create an estate of the same dignity ; and if a widow can be endowed of one, she can of the other. It would be absurd to say that a widow was entitled to be endowed for life, in a term which her husband had held under a lease for one year. The petitioner, then, on her own showing, was not entitled to dower in the premises. The estate was insolvent, and she could therefore claim no interest in the term as a chattel.

The judgment must be reversed.  