
    Joshua James et uxor vs. W. W. Rowan et uxor.
    The representatives of the deceased husband are the only proper parties to a proceeding by the widow to be endowed of her husband’s realty.
    On proof of marriage, of seisin of the husband during the coverture, of non-alienation on the part of the wife, and death of the husband, she is, against the representatives of the husband, entitled to dower in his realty.
    The rights of third parties are in nowise affected by a decree of the probate court allowing dower to the widow in her deceased husband’s realty; those who have such rights may put the widow to her ejectment or other appropriate remedy; and in such proceeding the respective claims will be considered in a great degree as if no decree of the probate court had been pronounced.
    Where third persons are made parties to a widow’s application for dower in her deceased husband’s realty in the probate court, and contest her right, the consent of the parties thereto will not give that court jurisdiction of the subject-matter ; and the rights of the parties thus illegally before the court will remain the same as if no decision had been made affecting them.
    Where a deed was made to J. and his sister, conveying a tract of land to them jointly, on the application of the widow of J. for dower in the land thus conveyed, his sister being in possession, held, that the legal title in J. by the deed, in the absence of proof of an ouster, or that the possession of his sister was adverse, entitled his widow, as against his representatives, to dower in the land ; nor could the probate court enter upon the inquiry as to whether J. was a trustee for his sister, who had paid the purchase-money for the land; that inquiry, and any other affecting his sister’s title to the land, or the rights of other persons, may be presented when the widow attempts to enforce her allotment of dower.
    Under a joint conveyance the possession of one will be deemed the possession of both, unless there were an ouster.
    On appeal, from the probate court of Jefferson county; Hon. Robert Duncan, judge.
    W. W. Rowan and Roxana, his wife, filed their petition in the probate court of Jefferson county, setting forth that Roxana was formerly the wife of J. N. H. Wood, to whom she was married on the 18th January, 1839; that during the time she was the wife of Wood, he was lawfully seised and possessed, jointly with his sister, Mary K., now the wife of Joshua James, of a certain tract of land in Jefferson county, which was conveyed to him and his said sister by Williams and Turner, by deed bearing date the 1st January, 1834, a copy of which deed is filed and made part of the petition. They further allege, that during the lifetime of said Wood, and on the 17th June, 1841, the Commercial Bank of Natchez recovered judgment against Wood in the Adams circuit court, and that on the 11th December, 1S43, said tract of land was sold by the sheriff of Jefferson county under an execution, issuing upon said judgment, and purchased by the Commercial Bank of Natchez. They further allege that after the issuance of said execution, but before the sale, the said Wood died seised of said tract of land, leaving one child, and having first made his last will and testament, appointing Alexander Montgomery his executor. They further represent that they intermarried after the death of Wood, and that the said Roxana has now relinquished her dower to said land. They then pray that Montgomery, the Commercial Batik of Natchez, and James and wife, may be made parties to the petition, and cited, <fcc., and that the necessary order may be made for the allotment of the said Roxana’s dower, &c.
    The answer of James and wife admits that they are in possession of the land described in the petition, and that it was conveyed as stated therein; but they deny that Wood was seised or possessed of any part of said land during his marriage with Roxana. They aver that said land and eleven negroes were purchased by said Wood and defendant Mary in the year 1834, of Williams and Turner, for $16,000, payable in four equal instalments, one being in cash at the time of the purchase. That said Wood and defendant Mary, then and before the marriage of said Wood and Roxana, verbally agreed that Wood should take the slaves as his part of the purchase, and that defendant Mary should take the land as her part; since which time she has ever held and possessed said land as her own exclusive property, and Wood never thereafter claimed any title or interest therein; and in the year 1836, or January, 1837, and long before the marriage of Wood and Roxana, Wood took exclusive possession of said slaves,' and disposed of them as his own property. They further aver that the first and last payments for said land were made by defendant Mary with her own funds, and that the second and third payments, due in 1835 and 1836, were made with the joint funds of her and Wood, they being during these years partners in planting. They further state that although it was mutually agreed between them, at the time of the purchase, that said land should be the separate property of defendant Mary, and said slaves the separate property of said Wood, yet said Wood caused the conveyance thereof to be made jointly to himself and defendant Mary; and although said Wood received and disposed of the whole of said slaves as his sole and separate property, yet he wholly neglected to make to defendant Mary a conveyance for the undivided moiety which had been thus conveyed to him; defendant Mary, who is the sister of said Wood, and placed entire confidence in him, believing all the time that the title to said land had been made solely to her, and that she was sole owner of the same. They further allege that after his marriage with Roxana, said Wood made his will, which was regularly admitted to probate at the July term, 1842, of the probate court of Adams county, a copy of which is filed as exhibit No. 1; that Wood, at the time of his death, left both real and personal estate, and that although more than two years had elapsed between the probate of said will and the filing of said petition, the said Roxana had never renounced the provisions of said will in her favor, and defendants claim the same benefit from these allegations as if they had been specially pleaded in bar. They further allege that by said will it was provided by said Wood that all matters in difference between him and defendant Joshua should be referred to arbitration, as previously agreed on between them; and that one of the matters intended to be referred was the title to said land, and its conveyance free from incumbrance by Wood to defendant Mary; and defendants say that they are still willing and anxious said arbitration should be made. They further say that previous to the death of Wood, the Agricultural Bank recovered judgment against him in the Adams circuit court, and that said land was sold under said judgment, and the undivided interest of the said Wood purchased at said sale by said bank, and that the same has since been purchased of said bank by defendant Mary. They further say that the judgment in favor of the Commercial Bank of Natchez, in the petition mentioned was founded on a note given by Wood for his individual debt, and that defendant Mary was only his surety.
    Upon the trial of the cause, the petitioners read in evidence the copy of the deed from Williams and Turner to Wood and Mary K. Johnson; and proved that Wood intermarried with Roxana in 1839, and died in 1842, and that petitioners intermarried «in 1843; that defendants, Joshua and Mary K. intermarried before the filing of the petition ; and that defendant Mary K. is the Mary K. Johnson mentioned in the deed from Williams and Turner.
    The defendants, Joshua and Mary K. then read in evidence the deposition of Mrs. Sarah C. Smith, taken by consent.
    She states that about the first of January, 1834, her brother, J. N. H. Wood, and her sister, Mary K. purchased the land on which Mary K. now resides, and eleven slaves; that at the time of the purchase it was agreed between her brother and sister, that her brother should take the negroes and her sister the land, and that this arrangement was generally understood by every member of the family, and most probably by the neighbors. At the time of the purchase, her brother arid sister entered into partnership in planting, which lasted three years. Her brother had but one or two slaves previous to the purchase, and a patrimony which he afterwards received, of about $5000. Her sister, Mary K. had abouttwenty working hands, and furnished the cash to make the first payment on the purchase of the land and negroes. In 1837, the partnership ceased, and her brother sold the eleven slaves that had been purchased with the land, and gave up the place to her sister, Mary K. That during the three years they planted together, her brother had the proceeds of all the crops, the product of the labor of near forty hands, except the small amounts that were necessary to defray the expenses and store accounts of her sister, and that in 1837, her sister was left to pay the balance of the purchase-money, upwards of $3000, for said land and slaves. That her brother was not married to Roxana till 1839, and that he made a will, &c. That her brother was a large creditor of the estate of J. P. Smith, having loaned him notes amounting to more than $10,000, the proceeds of sale of said slaves. That she had been informed by judge Dubuispon that the debt from the estate of Smith to the estate of Wood had been allowed as a privileged claim, and consequently mustbe worth considerable. Thatsaid Wood, among other assets, had a claim against I. Armat of several hundred dollars, which was handed by his widow, Roxana, to the executor to collect, and upwards of $100 afterwards paid to the said Roxana. That at the termination of the partnership, her brother sold slaves to the amount of $25,000 or $30,000, and her sister, Mary K. was left with less than she commenced the partnership, and involved in debt on account of the firm several thousand dollars.
    The defendants, Joshua and Mary K. then read in evidence the deposition of Stephen Williams, also taken by consent.
    Williams states that in 1838 he had a conversation with Wood, in which Wood stated to him that his sister Mary K. James and himself had agreed that she should have the land, and that he should have the slaves or some of them, which deponent and Turner had sold to them, but did not state when said agreement was made. He further states that Mary K. James has been in the exclusive possession of said land since 1837, claiming it as her own, and he has never since then heard said Wood claim title to any part of it.
    The said defendants then read in evidence a certified copy of the will of Wood, which appoints A. Montgomery his executor, desires that the arbitration agreed on between Joshua James and himself may be carried out by his executor according to the contract entered into between them, and provides that all property left after the payment of his debts shall be disposed of according to the laws of the state.
    
      It was admitted by the parties that the will of J. N. H. Wood was probated more than six months before the filing of the petition, and that said Roxana had never renounced the provisions thereof; and that the estate of Wood has been reported insolvent, and commissioners appointed thereon.
    Upon the foregoing petition, answer, and proofs, the court decreed that the said Roxana was entitled to dower, and order a writ to be issued to the sheriff of Jefferson county, in conformity to the statute.
    From this decision the defendants prayed an appeal, and have brought the case up for revision.
    
      John B. Coleman, for appellant.
    To entitle a widow to dower, the husband must have died seised and possessed of the land, or must have been seised and possessed at some time during the coverture. H. & H. 351, sec. 41.
    From 1837, two years before his marriage, up to the day of his death, Wood not only never was seised or possessed of the land, but never even pretended to have any claim to or interest jn it.
    The claim of his widow to dower rests upon the naked fact, that without any legal right to do so, and in violation of the agreement between his sister and himself, he took a deed for the land in the joint names of his sister and himself. Suppose that his sister had given him the money and requested him to purchase this land for her, and to take,the deed to her, and that he had fraudulently taken the deed in his own name, would his widow have been entitled to dower? We apprehend not. He would have been held to be a mere trustee for his sister, without any sufficient interest in the land. His position in this case is precisely the same. He never had (at least during the coverture) any sufficient interest in the land, and was only a trustee for his sister.
    “ In order to entitle the wife to dower, the land must vest beneficially in the husband for his own use.” 4 Kent, 39 ; Co. Litt. 31 (b. 4) ; Park, 47.
    
      “ A widow is not entitled to dower in lands conveyed by her husband before marriage, although the deed was unrecorded at the time of the marriage.” Blood v. Blood, 23 Pick. 80.
    
      “ Both the freehold and inheritance must imite in the husband, in order to entitle the wife to dower.” Fisher v. Grimes, 1 S. & M. Ch. R. 107.
    It has been contended, that the probate court has no jurisdiction to try a question of title as between a widow claiming dower and a strangerbut that dower must be assigned to her, and the stranger left to his remedy at Jaw.
    To this we answer,
    1. That the widow is bound, in order to establish her right to dower, to show, to the satisfaction of the court, that her husband was seised and possessed of the land in which she seeks to be endowed. H. & H. 351, sec. 41. Here she has entirely failed in showing either a seisin or possession.
    2. That the probate court has full power on this head. In Randolph v. Doss and Wife, 3 How. 205, the court say, “ The constitution and laws of this state confer upon the probate court general powers in cases of dower. These powers are not restricted by the relation of the parties to the suit. It is immaterial whether the contests for dower be between the widow and him, or the widow and a stranger.”
    The total absence of such a beneficial interest on the part of Wood, as is necessary to entitle his widow to dower, is so clearly established by the testimony, that we consider it unnecessary to press upon the court the other points which were made in opposition to the claim of dower in the court below.
    
      Whiting, for appellee.
    1. On the seisin of Wood, cited 1 Coke Lit. 662, 663.
    2. On the subject of the verbal agreement to convey by Wood to Mrs. Johnson, and its eifect, as operated on by the statute of frauds, cited the following authorities : Fonbl. Eq. 46, note; 2 Story’s Eq. 59, 445 ; H. & H. 370, 551.
    
      
      Montgomery and Boyd, on same side.
    The legal question presented by the petition, answer and proof, scarcely admits of doubt. The sale to Wood and his sister gave Wood the legal title to an undivided moiety in the land. This legal title continued till his death; it was accompanied by possession, from the date of the purchase till the dissolution of the partnership between him and his sister, in 1837. The equities between Mrs. James and the petitioner cannot be settled by the probate court, and will remain unaffected by its decision. That part of the answer which is relied on by way of plea is of no effect. There were no provisions in the will by which Mrs. Wood could take anything. The will, in law, is only effectual in the appointment of an executor. After the payment of debts, the property is required to be disposed of according to law, and that leaves it to pass under the law, and not under the will. In this respect the will is of no force, for it is every man’s will that the general laws shall have effect, till the contrary appears. But the clause, as to arbitration, is not shown to apply to this case, for there is no proof that this was one of the differences alluded to by the testator. He spoke of the differences with James, and not with his wife.
    That part of the answer which sets up an agreement about the land is equally unavailing. There is no proof that the deed was taken by Wood to himself and his sister improperly. It is simply alleged, but not proved, and the contrary is clearly shown. How else would there have been any necessity for an agreement about it 1 Although Mrs. Smith says the understanding was settled prior to the purchase that Mrs. Johnson was to have the land, yet she does not pretend that the purchase was not to be jointly made. On the contrary, that fact appears in the whole case. A partnership was formed at the same time, to continue for three years. At the end of this time, Wood took the negroes and left the land with his sister; but he made no deed. The answer complains that Mrs. Johnson was compelled to make payments of more than her share. Now these facts can only be reconciled by the idea that the purchase was joint, and the agreement was for a division afterwards, and after the partnership should be at an end. We have proceeded on the ground that a lawful agreement, in regard to this land, had been shown, which is clearly not the case.
    There was but one point before the probate court, which it was competent to decide; that was, the legal title or seisin of Wood, and that is admitted. The decree upon it cannot be erroneous, and the other subjects of difference must be settled by some other tribunal.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a petition for dower in the probate court of Wilkinson county. The only question seems to be, whether Wood, the first husband of Mrs. Rowan, was seised during the coverture, so as to entitle her to dower. The land, together with a number of slaves, was conveyed jointly to him and his sister, Mrs. James, then unmarried. Before his marriage, Johnson and his sister the appellant agreed verbally that he should take the slaves, and that she should have the land; but this agreement was never reduced to writing. He never had actual possession of the land after his marriage, and she was in possession during the whole time. There was a will made by Wood, but it can have no influence on the decision, because it directed, after payment of his debts, that his property should be disposed of as the law directs.

The probate court decreed dower to the petitioner, from which: an appeal is taken to this court.

From the nature of the probate court, it is wholly unfit to decide upon the title to land, where there'is a conflict of claims. We have repeatedly decided that itois not within its jurisdiction to do so. If there be proof of marriage, of seisin of the husband during the coverture, of non alienation on the part of the wife, and death of the husband, she is, against the representatives of the husband, entitled to dower. Those representatives are the only proper parties to the proceeding. H. & H. 352. The rights of others are wholly unaffected; and the decree in no manner operates upon them. If there are adversary rights, they may be set up in opposition to the decree, or rather in avoidance of it. Those who have such rights may put the widow to her ejectment, or other appropriate remedy, and in such proceeding the respective claims will be considered, in a great degree, as if no decree of the probate court had been pronounced. To explain, the decree will establish that she is the widow having right to dower out of the estate of the decedent ; but whether the particular estate which is claimed adversely to the husband is subject to such right, is a question not determined by that court, except so far as the representatives of the husband are concerned, who are the only proper parties before the probate court. The widow claims through and under her husband, and if there be an outstanding title better than his at the time of his death, the decree of the probate court cannot defeat such title, or give her a preference over it. See Farmers and Merchants Bank of Memphis v. Tappan, 5 S. & M. 112; Holloman v. Holloman, MS.

The appearance of these parties in the probate court, and their contestation of the matters there, conferred no additional power on that court. Their rights must still remain as they were. Consent may give jurisdiction of the person, but not of the subject-matter, when, without such consent, the court would have no power to pronounce the judgment or decree.

The probate court was competent to inquire into the fact of the seisin of the husband. Randolph v. Doss and Wife, 3 How. 206. That fact, we think, was properly decided by it. The legal title draws to it the legal possession or seisin in law, unless there be an actual adverse possession, Green v. Liter, 8 Cr.; Beekman v. Sellick, 8 Johns. R. 262. Tillinghast’s Adams on Eject. 10, note. There was here no evidence that the possession of Mrs. James was adverse to that of her brother, the decedent. Under the joint conveyance, the possession of one would be deemed the possession of both, unless there were evidence of an ouster. Till. Adams on Eject. 54; 14 Viner, 512; 7 T. R. 386. Our statute makes the estates of joint tenants liable to dower. H. & H. 357.

But if it be true that the purchase-money was paid by Mrs, James for the land, she may have a lien upon it for such purchase-money. He might have been but a trustee for her, until it should be repaid. 4 Kent, 151; 5 Humphrey’s R. 49; Tompkins v. Mitchell, 2 Rand. 428. This decree will not preclude that inquiry, nor any other which relates to the title of Mrs. James, or the other parties hereto, or of third persons, not the representatives of the husband.

This case is not in conflict with that of Randolph v. Doss et ux. 3 How. 206. There it is virtually stated that a paramount title, or the title of those not before the court, could not be affected by the decree.

Judgment of the court below affirmed.  