
    O'Ferrall v. Davis.
    Where a widow, claiming dower in certain real estate,'which had been sold by a trustee, and the proceeds of which were in his hands, made an agreement with the trustee, that if she succeeded in obtaining- dower, she would take her dower in money, out of the funds in the hands of the trustee, either absolutely or for life, according to the opinion of the court, as to what her . dower would be in said real estate; and where the said widow was held endowable for life only, and the court decreed that she recover, under said agreement, one-third of the purchase money for which said real estate sold, and ten per cent, interest per annum thereon from the 15th of April, 1853, but that said, sum of money should not be paid her, until she filed with the clerk a bond, with sufficient sureties, conditioned for the repayment of said sum, without interest, to the said trustee, or his legal representatives, immediately on the death of said widow; Held, That the widow, under said agreement, was entitled to receive the money, to control and use as her own, for and during her natural life; and that as there was no stipulation in the agreement for interest at ten per cent., so much of the decree as authorized her to recover that rate of interest, was erroneous.
    
      Appeal from the Dubuque District Court.
    
    The plaintiff sued for dower in certain lots in Dubuque,- and judgment of admeasurement was] rendered. Tie question arose, wietier sie was entitled to dower for life only, as at common law, under wiici tie conveyance by ier ius-band was made, or in fee under tie Code, .under wiici, in point of time, be died. Tie Supreme Court decided, that sie was endowed of a life estate. [See tie case between tiese parties, December term, 1854.] Pending tie case in that court, and with intent that tie plaintiff sbould not claim possession of tie lots against tie actual possessors, wio were Iona fide purchasers, tie parties made tie following agreement; “ It is agreed and understood between tie parties, tiat tie said Jane B. O’Earrell makes claims to dower in lots 660, 478, 160 ; north 35 1-2 feet of lot’159 ; tie north 35 1-2 feet of lot 659, and tie north half of lot 42, in tie city of Dubuque, Iowa, heretofore sold by Timothy Davis, as trustee : Tiat sie will make such claim against Timothy Davis as tie holder of tie funds, and in case of success, sie is to have ier dower, out of tie said funds in bis hands, either absolutely or for life, according to tie opinion of tie court as to what ier dower would be in tie said lots. And to this understanding, both parties mutually agree. Dubuque, Dec. 6th, 1852.”
    Tie sum of $2,438.80 was found to be tie one-third of tie proceeds of tie sale of tie lots. At tie May term, 1855, tie District Court in Dubuque county, rendered judgment tiat tie plaintiff recover from said defendant tie above sum, and interest at ten per cent, per annum thereon, from the 15tb of April, 1853 ; and ordering that this sum should not be paid her, until she filed with the clerk a bond, with" sufficient sureties, conditioned fox the repayment of said sum of money, without interest, to the defendant or his legal representative, immediately upon the death of the said Jane B. O’Eerrall. The cause again came before the District Court, at the August term, 1855, when, as appears from the bill of exceptions, the only question submitted to the court, was, as to the construction and legal effect of 'the above agreement; the plaintiff contending that she was entitled to receive the above sum of money, to control and use as her own, for and during her natural life; and the defendant holding that she was only entitled to receive interest on said sum during her life. The District Court held, that the plaintiff was entitled to the use of the money for life, under the agreement. From this judgment the defendant appeals, and assigns for error, the rendition of the decree for the payment of the money, and the ten per cent, interest.
    
      Ciarle & Bissell, for the appellant.
    
      Smith, McKinlay & Poor, for the appellee.
   Woodward, J.

(Isbell, J., dissenting). — The principal question presented to this court for adjudication, is as to the construction of the agreement between the parties. But little argument, and no authority, is adduced on either side.. On the part of the defendant, it is said that the law knows no better use of money than a safe investment at interest; that dower is but a usufruct, and that if complainant gets her interest, she gets the use of her money; or, in other words, the use of the land; and that a court of equity always directs a trustee having funds, to invest them at interest. A judge is not to shut his eyes, and ears, and mind, and be ignorant of those things which every one else knows. He may recognize the history and condition of the country and state, in which he lives and acts. And if so, he knows that the cash value of a dower estate, according to the tables, is ■not, generally, worth as nmcb as tbe use of tbe land. And «till more may be know tbat a rentage of six, or even ten per cent., is not, in tbis state, equivalent to tbe free use of tbe money, and tbat, too,, without tbe violation of any law, it is not correct to apply to a new country, where real estate is constantly rising in value, and money is in great request,. tbe reasoning which may be well enough in a country where treal estate has a fixed value, and money seldom commands six per cent, for its use,

As tbe plaintiff would be entitled to make tbe most of tbe use of tbe land, if she took her dower in tbat; so she is entitled to make tbe most from tbe use of tbe money. Tbis is tbe meaning of tbe contract, which stipulates that she is ■to have her dower out of tbe said funds, either absolutely or for life, according to the opinion of tbe court as to what her dower would be in tbe said lots.” Tbe agreement is, in effect, to take her dower in tbe money, instead of tbe lots, so -as to relieve tbe purchaser of the latter. It is tbe opinion ■of tbe court, that the plaintiff is entitled to have tbe control and use ©f tbe money, giving security for its repayment, as required by tbe «judgment of tbe District Court.

An error is assigned in tbe rendition of tbe judgment for fen per cent, interest, from April, 1838, until paid. There Is not before us tbe papers, tbe record of a suit. There is only a case made in tbe court below, on tbe construction of tbe contract between tbe parties, with tbe judgment rendered. If there was a full case here, showing tbe rela- ' iion of tbe parties entirely, and under what circumstances Davis is a trustee, and bow, and for whom, it might appear -both equitable and legal, tbat Davis should be held to account for tbe profits of this portion of tbe funds in bis hands, but no such case is made — none such is presented to us -for -adjudication, Neither is there anything showing bow tbe court was authorized to render judgment for interest at ten per cent, whilst, on tbe other band, tbis is assigned for er« Tor. Tbe case stands before ns simply, as a judgment for ten per cent, interest on money due, without stipulation for tbat ■amount. We cannot, therefore, avoid considering it err©-neons.m this respect. The judgment of the District Court is reversed, so far as the same is rendered for interest at ten per cent., and it is the opinion of this court,, that the said judgment shóuld be rendered for the above said sum, with interest at six per cent, per annum, from the fifteenth day of April, 1853, until paid,

-Isbell, J.

(dissenting). — I cannot concur in the above opinion, as far as interest on the funds-in the hands of Davis-heretofore, is concerned.. The agreement is meager, but it does appear that the property was sold by him “as trustee,” and that he is “the holder of the funds.” I infer, at least,that he has held them in trust, and that, too, for the rightful possessor. He should be called ,io account for interest actually received on plaintiff’s proportion of the fund. And in the absence of any showing-of the unfaithful execution of the trust, he should be decreed to pay such interest only, whether more or less.  