
    *Moore and Wife v. Waller, &c.
    March, 1824.
    Dower — Assignment by Commissioners -When Binding. — An assignment oí dower made commls- • sioners, under an order of Court, at the instance of one of several co-heirs, is binding- on the widow, provided it be a full and just assignment: audit is binding, also, on the co-heirs, even if they are infants, provided the assignment be not excessive.
    Same — Who May Assign  — At common law, the heir had the power of assigning dower, without, resorting to any Court whatever; and that power is not impaired by the act of Assembly.
    Same — Assignment—Rents and Profits  — If the widow keeps possession, in such case, of the whole land, under pretext that the assignment of dower was not legal, she will be accountable to the heirs for the rents and profits of all but her dower land.
    This was an appeal from the Chancery Court of Williamsburg.
    Carter CrafEord died intestate as to1 his real estate, seised of a tract of land containing 900 acres. He left a widow, Martha, and four children; of whom, John CrafEord was the eldest. John CrafEord moved the County Court, to appoint commissioners to- assign the said Martha her dower in the estate of her deceased husband. All the children were infants, except John. Commissioners were accordingly appointed, who met on the premises, and assigned the dower. No complaint was made by the widow, Martha, of any injustice in the assignment of her dower; nor was any objection made during the life of John Crafford. After these proceedings, John CrafEord died, leaving Martha Cary his widow, and having devised all the land that he inherited from his father, to her, in fee simple. The said Martha Cary afterwards intermarried with Robert Hall Waller.
    Soon after the death of John Crafford, Martha, the widow of Carter Crafford, gave notice to Martha Cary, the widow of Carter, that the dower, not being assigned by a regular suit in Chancery, was irregularly assigned, and consequently void; and that she should insist on the-full enjoyment of the said land, called Mulberry-Island, with the improvements, until the dower should be regularly *assigned. Accordingly, the said Martha, the widow of Carter Crafford, took possession of the said lands; and brought a suit against the administrator of John Crafford for the rent of lands cultivated by him.
    The bill was filed by Waller and wife against Martha Crafford, to compel her to 'receive and abide by the dower allotted by the commissioners: to account for one-fourth part ' of the remaining two-thirds of the said lands, since the, month of December, 1801, the period when her dower was assigned; and, that until the rents and profits be accounted for by the said Martha, as aforesaid, that she may be injoined from all, further proceedings in the sui-t against the administrator of John Crafford, deceased, for supposed damages, &c.
    The Chancellor awarded an injunction, to stay all further proceedings in the suit against John Crafford’s administrator.
    A guardian ad litem was appointed for the infant children of Carter Crafford, who were also made defendants.
    A joint and several answer was filed by Martha Crafford, and the guardian ad litem of. the infant defendants, stating, that as soon as the defendant Martha was apprised that the assignment aforesaid was illegal, and that she was not bound by such ex parte proceedings, she expressed to John Crafford her dissatisfaction therewith; in consequence of which, a bill was exhibited against her in the County Court of Warwick, by the children of the aforesaid Carter; in which, among other things, it was prayed, that dower of the real and personal estate of the said Carter, might be decreed to the defendant Martha; it being alledged that no dower had been assigned her: that she is advised that she has a right, by law, to the enjoyment of the Mulberry Island lands, until dower be legally assigned, without accounting with any person for rents and profits, &c.
    The defendant Martha afterwards intermarried with Moore, and he was admitted a defendant in this suit; and it abated as to-Robert Waller, by his death. *The Chancellor decreed, that the injunction to stay proceedings against the administrator of John Crafford, should be made perpetual: that the dower allotted to the defendant Martha, by the commissioners of the County Court, should be established and confirmed;'the same being at least one equal third part in value of the said lands: that the said defendant be quieted in the possession thereof: that the residue should be divided into four equal parts in- value, and one-fourth part allotted to the surviving plaintiff; and that an account be taken of the rents and profits of the said part from the 3d of December, 1801, before a commissioner, &c.
    The commissioner reported a balance due on account of rents and profits, from Martha C. Waller, of $187 50, principal, and $36 75, interest.
    The Court confirmed the report, as to the principal, and rejected the interest, allowed by the report.
    From this decree, the defendants Moore and wife appealed.
    Leigh, for the appellants,
    contended, that the assignment of dower was not valid, because it was the act of one heir only but of four. It would not be binding on the other heirs who were not parties to it; and John Crafford himself, expressly affirmed its invalidity, in his suit in Warwick county. Under these circumstances, the widow was driven to the alternative, either to take the dower, so irregularly assigned; or to hold.on to the property in her possession. She preferred the latter; and was fully justified in her choice by the act' of Assembly. 1 R. C. (old revisal,) p. 170, § 2.
    Wickham, for the appellees.
    No complaint is made of the assignment in this case, on account of the inadequacy of the dower assigned. The only objection is to the mode in which the dower was assigned. This question is to be decided upon common law principles; for, the act of *Assembly has made no change, as to the manner of assigning dower. At common law, the heir may assign dower by his own act. Even a disseisor, abator, or intruder, may assign dower. Co. Litt. 35, a. It follows that one heir may make a valid assignment, although his co-heirs do not join in it; for, he has unquestionably more right than a mere disseisor. An assignment, even if inadequate, will be good pro tanto. Fitzherbert’s N. B. 17, § 6. In the case of Foote v. Fitzhugh, 3 Call, 13, it was decided, that an assignment made upon mere motion, ought not to be set aside in toto, but the error, if there was one, corrected.
    The bill of John Crafford is no- evidence against him, as it is always considered as the mere act of counsel. But, if it could be attributed to him, he was clearly mistaken.
    March 30.
    
      
      See generally, monographic note on “Dower” appended to Davis v. Davis, 25 Gratt. 587.
    
   JUDGE CABELL,

delivered the opinion of the Court.

The act of Assembly which declares, that until dower shall be assigned to a widow, “it shall be lawful for her to remain and continue in the mansion-house, and the messuage or plantation thereto belonging, without being chargeable to pay the heir any rent for the same,” is highly beneficial to her; but, it was not intended to operate injuriously to the heir. It was intended not to restrain, but to stimulate, the heir; not to diminish any of his powers, but to urge him to their just and speedy exercise. He had the power, at common law, to assign dower without resorting to any Court whatever; and that power is not impaired by the act of Assembly aforesaid. The widow is bound to accept the assignment made by him, provided it be a full and just assignment; and, in that event, if she persist in holding any more of the lands than *those thus assigned, she ought to be chargeable therefor. The assignment of dower by an adult heir, in behalf of himself and his coheirs,. who are infants, is as binding on them as it is on him, provided the assignment be not excessive.

It is no objection, that'the assignment in this case was made by commissioners under an order of the County Court. That order was made at the instance of the heir, and the assignment by them was his assignment. Even the widow herself has never objected to it as not being full and fair; and, as to her misapprehension of the law, in supposing it not to be obligatory, it would be unreasonable in the extreme, that she should avail herself of it, to hold the whole estate rent free.

The decree is affirmed. 
      
      Judge Carr, who had been appointed on the death of Judge Fleming, sat in this cause. Judge Green, absent.
     