
    Francis Wyatt vs. William M. Brown, et uxor.
    On an application by a widow for dower in the deceased husband’s realty, which had been aliened by him by giving bond for title, during coverture, but to which the vendee had received a title after the husband’s death, from his administrator, under the order of the probate court, it was held that the circumstance that the widow had received her distributive share of the proceeds of the sale of the lands in which she sought the dower, was not a subject of inquiry on the application for dower to the probate court.
    On appeal from the probate court of Holmes county; Hon. John F. Williams, judge.
    Nancy Brown late widow of William G. Gary, applied, by petition, for dower in certain realty of her former husband. Francis Wyatt applied to be made a defendant to the petition ; which being allowed, he set up in a cross petition that on the 10th of April, 1834, he bought the land of Gary and received from him a bond for title when the purchase-money was paid; that Gary died in the August ensuing, before the purchase-money was paid. That Joseph Morris qualified as his executor and conveyed the land in question to him under an order of the probate court, and received the purchase-money; of which the widow who renounced the provision made in the will for her, received; in conjunction with her second husband, her distributive proportion; which was one third thereof; as there were but two children. He therefore insisted that she was not entitled to dower in the land.
    To this petition the widow demurred; the demurrer was sustained, Wyatt’s petition dismissed, and dower in the land allowed to the widow, and Wyatt appealed.
    Lansdale, for appellant.
    The wife’s right of dower in the lands of her former husband, is certainly an interest that would vest in the second husband, upon the marriage, which he might well dispose of, at least during the joint lives of himself and wife. In receiving the share to which his wife was entitled, in money, was beyond all doubt a notification of sale by him. To permit him to obtain her dower in the land, after having thus received satisfaction for her right, it is thought would be iniquitous in the extreme. They would, certainly be compelled to refund, as it appears the estate is not insolvent.
    It is conceived that the decree of the probate court is erroneous, beyond question, and that it will be reversed.
    Brooke, for appellee.
    The petition of Wyatt in opposition to the application for dower shows no ground for relief, and the demurrer thereto was very properly sustained in the court below. The land was sold,' it appears, in the lifetime of Gary, the former husband of Mrs. JBrown. It is not pretended that she relinquished her dower, and therefore it was sold subject to dower, and Wyatt bought it under that incumbrance. If Mrs. Brown received a part of the price wrongfully, the distributees of her deceased husband, who were entitled to all the purchase-money, are the only persons who have cause of complaint. A stranger who purchased, knowing of the incumbrance, cannot come in after his purchase is complete, and seek to remove the incumbrance by setting up a wrong done to others.
    The principles applicable to this case are well settled in the cases of Caruthers v. Wilson, I S. & M. 527, and Randolph v. Doss and Wife, 3 Howard, 205.
   Mr. Justice Thacher

delivered the opinion of the court.

Appeal from the decree of the probate court of Holmes county.

This was a petition for dower to be allotted to Nancy Brown, in the estate of Willia.m G. Gary, her former husband. It sets forth that in the lifetime of Gary, he contracted to sell and did sell the land described in the petition, to Samuel R. Powel, but that a conveyance was not made until after the decease of both Gary and Powel, when it was made to Powel’s heirs by order of the probate court of Holmes couhty. It also set forth that the petitioner, Nancy Brown, had never relinquished her dower in the land described. The cross-bill of Francis Wyatt, who contested the allotment of dower prayed for in the petition of William M. Brown and wife, admits the material statements of the petition for dower, but objects to the granting of its prayer, upon the ground that the whole consideration money of the sale of the land by Gary to Powel had been paid to the legal representatives of Gary’s estate, and that Brown and wife had received the distributive share thereof to which she was entitled by law. The cross-bill also alleges that Wyatt now holds the property, claiming through the heirs to whom it had been conveyed as aforesaid by order of the probate court. A demurrer was allowed to this cross-bill, and it was decreed to be dismissed.

It is material to a right of dower that the husband was seized during coverture, and that the wife has not aliened her right of dower. The circumstance that a widow has received her distributive share of the proceeds of the sale of his lands made during coverture is not an inquiry in a proceeding for dower. Caruthers v. Wilson, 1 S. & M. 527.

The demurrer was properly allowed, and the decree is therefore affirmed.  