
    Barber v. Hite.
    A wife demanded and received from her husband one-third of the purchase price of a tract of land as and for her separate property, in consideration of her relinquishing to the purchaser her inchoate right of dower in the land sold, and the remaining two-thirds of the price passed into the personal estate of her husband of which he died possessed, intestate. Held: That the widow is not estopped from claiming her (b'stributive share of any part of the personal estate of her deceased husband by reason of the fact that such estate was augmented b3r the conversion of such realty into personalty.
    Motion for leave to file a petition in error to the district court of Wyandot county.
    On April 1,1880, L. C. Barber, husband of Sarah R. Barber, being the owner of a certain track of land situate in Wyandot county was bound to convey the same to one Harriet J. Wilson, free from the inchoate right of dower of his wife Sarah. His wife refused to relinquish her right to the purchaser unless one-third of the purchase money should be transferred to her as her sole and separate property. To this demand of the wife the husband assented, whereupon the wife joined her husband in the deed to the purchaser, releasing her right of dower in the premises, and the husband caused the sum of $1,733.33, one-third of the purchase money, to be paid and secured tobe paid to the plaintiff as her separate estate; and the other two-thirds of the purchase money was paid and secured to be paid to L. O. Barber, the husband.
    Afterward, on August 13, 1880, L. C. Barber died intestate, and upon settlement of his estate there was found in the hands of the administrator subject to distribution the sum of $2,370.43, which the administrator was ordered by the probate court to pay over to the proper distributees. Thereupon a controversy arose, between the heirs and the widow as to the right of the parties under the order of distribution, the latter claiming one-half of the first $400 and one-third of the balance, the former denying the widow’s right to any share in the distribution, inasmuch as the amount to be distributed was less than the sum received by the intestate from the sale of the land above mentioned, from the purchase money of which the widow had secured at the time the full one-third part.
    To settle this controversy, Julia Hite, one of the heirs and distributees, under the statute in such case made and provided, commenced the original action in the court of common pleas against the administrator of the estate, the widow, and the other distributees, and alleged in her petition' among other things, that the intestate delivered to his wife the sum of $1,133.33, aforesaid, for her sole use and benefit, “to have and to hold the same as her separate estate and property in full satisfaction of all claims on her part against the said L. C. Barber, his heirs and assigns, for or on account of the proceeds of said sale of said premises as aforesaid.
    “ The said plaintiff further saith that no part of said notes or money so given by the said decedent to his said wife, came to the hands of his said administrator as assets of said decedent’s estate; and plaintiff avers and charges that the residue of said notes, representing two-thirds of the said sum of $d,900, came to the said administrator’s hands, and were collected and accounted for as assets of the estate, and that but for the sale of the said premises by the said L. C. Barber, as aforesaid, the personal assets of said estate would have been insufficient to pay the just debts and costs and expenses of administration of said estate.”
    The defendant Sarah R. Barber, by her answer, alleged that her inchoate right of dower in the premises sold by her husband to Mrs. Wilson, was the sole consideration for the third of the purchase money so received by her. “ That she neither had, or pretended to have, anything to sell except her said right of dower; she had no interest in the remaining proceeds of said sale nor did she sell or pretend to sell any such interest, or to sell or relinquish any other marital right excepther said right of dower.”
    The district court, to which the cause was taken by appeal found that “ as a consideration for signing the conveyance and releasing her right of dower, the said Sarah R. Barker demanded and received notes and money to the amount of seventeen ■hundred and thirty-three dollars and thirty-three cents out of the purchase price of the land sold. That there was no agreement as to the right of the said Sarah R. Barber, as wife or widow, in any other portion of her husband’s estate.”
    Upon- this state of facts, the district court found that the plaintiff in error was estopped from claiming any portion of the money in the hands of the administrator for distribution, and decreed that the same should be distributed among the children and heirs-at-law of the intestate.
    This proceeding is prosecuted to reverse the judgment of the district court.
    
      j. M. D. Sears, for the motion.
    
      G. li. Mott, contra.
   McIlvaine, J.

The judgment of the district court was clearly wrong.

The funds in the administrator’s hands for distribution arose from the personal estate of the intestate owned by him at the date of his death on August 13,1880. Section 6194 of Revised Statutes, then in force, provides, “ where the intestate shall not have .left any legitimate child, heir of 1ns body, the widow shall be entitled to all the personal property, as next of kin, which may be subject to distribution upon settlement of his estate; and if the intestate shall have left such child, the widow shall be entitled, upon distribution, to one-half of any'sum not exceeding four hundred dollars, and to one-third of the residue of the personal estate subject to distribution.” This case falls within the last clause of this section.

It matters not when or from what source the personal estate of which the intestate may die possessed, was acquired; the operation of the statute is the same where there is no bar. The facts in this case do not constitute a bar. The alleged fact, that the plaintiff in error received the one-third of the purchase price of the land sold “in full satisfaction of all claims on her"part against her husband or his heirs for or on account of the proceeds of said sale of said premises,” was-not proved ; but on the other hand it was found by the court, that she did not sell or reiinquisli any other marital right except her dower in' the premises sold. That she was paid liberally for her inchoate right of dower in the premises is undoubtedly true ; but she was paid only the value thereof as agreed upon between her husband and herself ; and surely she does not thereby stand in a worse j>osition toward the balance of her husband’s estate, than she would in case her husband had transferred to her a like separate estate by way of gift. Such gift would not bar the widow of the giver from an interest in the distribution of his personal estate subject to distribution.

The present case, however, is more analogous to one whore the husband conveys his real estate subject to the inchoate dower in his wife, and after the purchase price, to wit, the value of the land less the value of such inchoate right, falls into his personal estate, dies, whereby the inchoate right of dower becomes dower consummate in his widow. Surely no one would contend that the right of the widow to her statutory share in the distribution of the personal estate of her husband, would be at all affected by the fact that such personal estate was augmented by the conversion of such real estate into personalty. Motion granted.

Jiodgment of district court reversed, and judgment entered in famor of plaintiff in error.  