
    Maccubbin, et al. vs. Cromwell.
    June, 1828.
    A widow Las a right to ask in equity part of a fund in lieu of dower, where that fund has been produced by the sale of her husband’s lands, which were subject to her dower, and increased, by being sold clear of (bat incumbrance with her approbation, and consent; and where she has assigned such a claim, her assignee will succeed to her rights.
    An audit may be examined on appeal, although no exceptions were taken to it in chancery; and if the chancellor acted upon improper testimony, or mistook the principles of law, the audit will be reformed, or the decree reversed.
    Where funds are in the court of chancery, and a party petitions to have them applied in discharge of his claim, it has long been the uniform practice of that court in this state, to receive the papers, on which the claim is founded, as prima facie evidence, and the chancellor acts on them accordingly, unless the testimony is put in issue, and full proof required by the opposite party. • »
    This practice is founded in convenience, to save expense to suitors in that court, and ought not to be disregarded. It does not deprive the pap ty of his right to have full proof, if he thinlcs proper to demand it. He may file exceptions to the report of the auditor; and, even if the report has been confirmed, upon petition the chancellor would direct it to be ' opened, and strict legal proof would be required.
    If exceptions are filed, the testimony is piit in issue, and the chancellor ought to require full proof; if he proceeds without strict legal evidence, it would be error.
    The report of a trustee appointed by the court of chancery, made under oath, stating that ne bad sold a tract of land “free and clear of all right and title of dower of M, the widow of the deceased tenant in fee, she having conveyed, for a valuable consideration, all her interest in the premises to C,” together with the deed of M to C, for her dower, is sufficient prima facie evidence, to enable C to sustain a claim, by petition, for at least a less sum than the value of M’s dower, to be paid out of the proceeds of such land, which were in that court for distribution.
    Appeal from the Court of Chancery. This case is sufficiently stated by the appellant’s counsel, and the judge who delivered the opinion of this court.
    . It was argued before Buchanan, Ch. J. and Earle, Margin, and Archer, J.
    
      JR. B. Magruder, for the Appellants,
    stated, that it appeared by the record, that on the 2d of July 1S10, a bill was filed in the court of chancery by Henry W. Dorsey against John Cromwell, (the now appellee,) David Whelan, and the children and heirs at law of' Zachariah Maccubbin, deceased, (the present appellants,) to set aside a deed, charged to have been fraudulently executed on the 15 th of November 1809, by Maccubbin, to Whelan and Cromwell, for all his real and personal estate. The bill stated that Maccubbin, at the time of executing the said deed, was indebted to the complainant in. a large sum of money — Prayer, that the deed might be decreed to be null and void, and the estate of Maccubbin might be sold, &c. The answers of Whelan and Cromwell admitted that the property, realand'personal, conveyed to them by Maccubbin, was liable for the complainant’s debt. The answers of others of the defendants, (by their guardian, being infants,) admitted the debt due to the complainant, and the deed from their father to Whelan and Cromwell, which they stated, was in trust for the use and benefit of the children of their said father. The answers of Whelan and wife, (one of the heirs,) admitted the facts stated in the bill, but say nothing as to Whelan’s claim on account of the widow’s dower. On the 14th of July 1812, the chancellor by his decree vacated the deed, and ordered a sale of the property therein mentioned, not noticing the widow, or her dower. A trustee was appointed to make the sale Sales were made and reported. On the 15ih of December 1815, Cromwell, ( Whelan being dead,) filed his petition to the chancellor, stating that on the iOth of June 1810, he, together with the said Whelan, believing it best for the interest of the children of Maccubbin, executed and delivered to Margaret Maccubbin, the widow of the deceased, their joint bond, conditioned for the payment of $400 per annum, in consideration of which she executed and delivered to them a release of her dower in all the real estate of which her husband died seized. This release is exhibited. The petition then stated that Margaret Maccubbin intermarried' with Joseph L. Fletcher, and had since departed this life; and that Whelan was also dead. That the petitioner and Whelan had paid large sums of money on account of the said bond, and that suits were then depending for the recovery of the balance due on the said bond — Prayer, that the auditor be directed to state au account between the estate of Maccubbin and the petitioner; and that the various sums paid by him and Whelan be repaid to them, &c. To this petition there was no affidavit, nor proof of facts, nor any prayer for a subpoena to the trustee, or to the heirs. On the 20th of July 1818, the trustee, appointed to make the sale, prayed by his petition to be discharged from his trust, stating that he had sold a part of the lands, &c. He was discharged, and another trustee was appointed for the sale of the property which remained unsold, &c. On the 3d of May 1824, Cromwell by his petition stated, that in March 1809, Zachariah Maccubbin, being seized in fee simple of a considerable tract of land, departed this life, leaving Margaret Maccubbin his widow. That the said Margaret, being desirous of procuring an assignment of her dower, applied to the heirs of the said Zachariah therefor. That the petitioner, with David Whelan, who had married one of the heirs of fuil age, gave the bond exhibited, to the said Margaret, for the purpose of securing to her the sum of $400 per annum, payable quarterly during her lifetime, a sum vastly inferior to the amount to which by law she was legaily entitled by way of dower — the estate of the said Zachariahhsvmgsubsequently sold, for @29,578. The legal interest of which js @1,774 -68 — The amount due to the said Margaret for her dower of the said estate, is @591 56. That the petitioner proceeded to pay the sum secured by the said bond for several years, until the said Margaret was married to Joseph X. Fletcher, and for some years afterwards also continued to pay, when the said Fletcher assigned the said bond to Thomas Armstrong, who brought a suit- thereon, and obtained judgment against the petitioner to the amount of @1,500, with interest, &c. A short copy of which judgment is exhibited. That the said Margaret died on the 14th of December 1814, so that she was entitled to, and the petitioner has paid and is responsible for, @1,850, with interest, &e. That under the decree for the sale of the estate of Zachariah Maccubbin, a part thereof was sold by the former trustee, and the residue by the present trustee, which latter trustee holds in his hands funds sufficient to discharge the claim which the' petitioner conceives he justiy has against the said estate, for money paid by him in case of the said estate increasing its value, or diminishing the amount of incumbrances thereon. Prayer, that the present trustee be directed to pay the claim of the petitioner, with interest; or that dower be assigned to the said Margaret, and the petitioner substituted for her to receive t.he same when so assigned; and for other relief, &c. To this petition there was no affidavit, nor proof.
    On'the 7th of May 1824, Chancellor Johnson in his order, stated, “that the application was to allow to the petitioner, the money the.widow of Zachariah Máccubbin would have been authorised to receive in lieu of her dower in the lands sold under the decree, she (as is presumed,) having consented that the sale should be free of dower. The petitioner claims to be placed in her situation, in consequence of having purchased the right of'dower from her. On examining the papers I find that on the 13th of May 1819, a report was made by the auditor, whieh- was acted on by the chancellor tire same day, leaving a large balance in the hands of the trustee. On the '31st oí December 1821, the report of the last trustee was confirmed, and an order passed for the auditor to state an account,, appropriating the proceeds. I do not perceive that any thing has been done under that order, or on the sales of the first trustee since the 13th of May 1824.” — Ordered, “That the auditor state accounts in regard to each trustee, in distributing the funds. In one account, he will allow to the petitioner the claim on account of dower; in the other, he will reject it.” This order meant, of course, that the tact should be proved, that the widow had consented that the sale should be free of dower. The auditor on the 15th of July 1824, made a report, in which he stated, that by an order of the 29th of December 1813, lie was directed to state an account with the original trustee for certain advances, he then reported, he had necessa - rily made to the heirs of the deceased. The materials for such an account were never furnished, and, therefore, the balance of the account reported on the 13th of May 1819, was left unappropriated, and for the same reason continued so. That by another order of the 15th of December 1815, passed on the petition of the petitioner, then filed, the auditor was directed to state the claim of the petitioner and David Wholan; but on examining the papers, no statement of, or voucher for, the payment said to have been made to the deceased widow, were to be found, nor was the time of -the death of the widow, either shown or stated, and that order, of course, could not be executed. The present trustee’s report represented, that the quantity of land sold by him, had not been satisfactorily ascertained; and no bill of his expenses accompanied it. The execution of the order of the 31st of December 1821 Was, therefore, postponed. Most of those difficulties still exist; nevertheless, in obedience to the order of the 7th of May 1824, lie has stated a continuation of the account with the first trustee, applying the unappropriated balance to the payment of the additional costs of this court, and then dividing the residue equally among the heirs of the deceased. And with thq present trustee he has prepared an account, in which the proceeds of his sale are applied to the payment of the costs of this court, and the amount of the petitioner’s claim, stated from the petition, as of the day of sale, and the balance divided as aforesaid. And also another account, in which the claim of the petitioner is excluded, and the whole amount of the sale. deducting the costs, is so divided. On the 27th of July 1825, the former trustee reported, on oath, “that the property, when offered at public sale, as stated in his former report, was put up and sold free and clear of all right and title of dower of Margaret Maccubbin, the widow of Zachariah Maccubbin, deceased — she the said Margaret having conveyed, for a valuable consideration, all her interest in the premises to John Cromwell and David Whelan, who consented to the said sale as stated.”
    Chancellor Bland, in his order of the 1st of August 1825, stated “that it now appears by the additional report of the trustee, that the whole estate of the late Zachariah Maccubbin was sold free and clear of the widow’s right of dower, and consequently that. Cromwell and Whelan, who purchased the widow’s right of dower, are entitled to have their claim, satisfied out of the whole proceeds of the sale. But on considering the nature of their claim, it appears, by the petition of Cromwell, filed on «the 15th of December 1815, he and Whelan ask only ‘that the various sums of money paid by them may be repaid, with interest.’ And by the petition of Cromwell, filed on the 3d of May 1824, their claim is again presented, substantially in the same way; that is, ‘for money paid in ease of the said estate.’ And according to an informal estimate, made and laid before the chancellor by the auditor, it appears that the aggregate amount of the various sums which Cromwell and Whelan thus claim to have refunded and repaid to them, with interest, is much less than the amount to which they would be entitled as assignees of the widow, claiming the full amount, which she would have a right to demand in lieu of her dower. And since they have asked only for the lesser amount, or a mere reimbursement, as stated by the auditor, it is quite reasonable, as the case now stands, that it should be awarded to them; therefore, Ordered, that the auditor’s report and statement of the 15th of July 1S24, allowing the said claim of Cromwell and Whelan, be ratified and confirmed, and the trustee is directed to apply the proceeds accordingly,” &e From this order the heirs of Zachariah Maccubbin appealed to this court.
    
      It is contended, on the part of the appellants, 1. That the court of chancery had no jurisdiction. 2. If the court of chancery had jurisdiction, so as to sustain the petition and claim of the appellee, there is no evidence in the cause to support the claim. 3, There is a want of parties, and the decree or order appealed from should not have passed, until other proper parties had been first made.
    1. The first point. — -The court of chancery had no jurisdiction, 1st. Even if this had been an original proceeding by the widow, and not a collateral one, the jurisdiction might be doubted. Cooper’s Plead. 135, 136, (notes r, s, t, u.) Curtis v Curtis, 2. Bro. Ch. Rep. 630, 632 2d. But as it is not original, but collateral, there is no power or jurisdiction in the court of chancery to permit even the widow, (if she asked it,) to come in upon this fund in this way, however creditors may do it. What is her situation at common law before assignment of dower? What is it after assignment? Could she apply before, or after assignment, for a sale of he.r interest, and to come in for the proceeds? If there was s. mortgage of her interest, it might be different. Could an owner of a freehold, not mortgaged, or fettered by a trust, or by some other way, so as to give chancery jurisdiction, go into chancery against the remainder-man? There can be no right to go upon a fund, upon the general equity law. If there be any, it must be by positive statute. What provision have the acts ot assembly made to enable the widow to go into chancery? The act of 1786, ch. 45, s. 6, reserves hqr right of dower expressly. The act of 1799, ch. 49, s. 6, ah lows dower to be sold, if the widow consent in writing. So also the act of 1816, ch 154, s. 10, 11, and 1819, ch. 183, s. 1, 2, if the widow will consent. These are the only instances .in which a widow’s interest may be disposed of, provided she consent. In all other cases, the law remains as it was, unaltered, and the court of chancery has no power over her right.
    2, If the widow, or her assignee, could come into court iiz this way, (as creditors do, on a bill filed by one for all,) there is no evidence to support any claim to dower. Pannell & Smith v The Farmers Bank of Maryland, 7 Harr. & 
      
      Johns. 202. Giese v Thomas, Ib. 459, 460. It is insisted, 1st. That there is no proof that the pretended widow was ever married at ail to the deceased. It is not mentioned in any of the petitions, nor was there any service of the petitions on any of the heirs, or any subpoena requiring their appearance. 2d. If married, she might have been an alien. 3d. There may have been a marriage settlement in bar of her dower. 4th. There is no proof that she ever executed the deed to Cromwell and Whelan; and if she did, there might have been proof, perhaps, that the bond was to be paid out of the personal estate conveyed by her husband to Whelan and Cromwell.
    
    3. There is a want of necessary parties — matérial parties. Cooper’s Plead. 21, 33, 34. 1 Harr. Ch. 77. Fitzer vs. Fitzer, 2 Atk. 514. West v Randall, 2 Mason, 190 to 196. Cromwell v Owings, 6 Harr. & Johns. 14. Darne vs. Catlett, Ib. 483. 1st. The widow (in her lifetime) ought to have been a party. Jackson v Aspell, 20 Johns. Rep. 413, Jackson v Vanderheyden, 17 Johns. Rep. 168, 169. Cathcart v Lewis, 1 Ves. Jr. 463. 1 Cruise Dig. 159 s. 2, Gilb. Ten. 26. 2d. Fletcher (her husband) should have been a party. 3d. Armstrong, (the assignee,) should have been a party. Coale v Mildred, 3 Harr. & Johns. 278. Suppose a second mortgagee to file a bill, having bought out a first mortgagee, must not the first be made a party? Suppose an executor, before probate, to be made a party, yet never to take out letters, it is not sufficient without actual admininistration, because the account, if taken, might be iloverhaled again after the grant of letters.” So in this case, Fletcher or Armstrong might come in. Cooper’s Plead. 35. Why is the executor, as well as the heir of a mortgagee, made a party in a bill to redeem? “That the money shall return to the same fund out of which it came.” Cooper’s Plead. 37.
    
    
      Mayer and Meredith, for the Appellee.
    1. The court of chancery had no right to annuli the deed from 'Maccubbin, to Whelan and Cromwell, except so far as related to the parties in the case who complained against the deed. It was a creditor’s bill. Rob. on Fraud. Convey. 643 to 651. 1 Fonbl. 
      274, 278. The deed is binding on the party claiming under the grantor therein. Jackson vs. Garnsey, 16 Johns. Rep. 189. Jones v Slubey, 5 Harr. & Johns. 372 2 Com. Dig. tit Chancery, (3 M. 5.) 615. 4 Com. Dig. tit. Fait, (B. 4. B.) 278, (note.)
    2. This is not a claim for dower; but if it was,, the court of chancery exercises jurisdiction in cases of dower. 7 Johns. Ch. Rep. (General Index,) tit. Jurisdiction of Chancery. Rathbone v Warren, 10 Johns. Rep. 587. Titus v Neilson, 5 Johns. Ch. Rep. 452. Swaine v. Perrine, Ib. 482. Everton v Tappen, Ib. 497. 1 Madd. Ch. 196. The objection to the jurisdiction can only apply to the chancellor’s order of the 1st of August 1825, allowing the claim of the appellee, &c. From this order the appeal has been taken. It is the common case of a creditor applying; for payment of his debt, and to have a deed set aside. The court had jurisdiction of the case, and set aside the deed, and decreed the land to be sold to pay the creditor. The grantees in the deed before it was set aside, had entered into an arrangement with the widow for her dower interest in the land; and gave their bond to pay to her annually a certain sum of money. For the amount paid by them on the bond, and the amount for which they are answerable, (the land being sold,) they come into court, claiming to be paid. The claim is an equitable one, and it is not made as assignees of the widow for dower. But suppose it was, the court would have juris-. diction of the subject. 1 Madd. Ch. 196. But here the interest of the widow’s dower comes incidentally into question. It must be admitted, that it is a proceeding i?i rem. Tongue v Morton, 6 Harr. & Johns. 21. Smart v Wolf, 3 T. R. 328. The Monte Allegre, 9 Wheat 616. Titus v Neilson, 5 Johns. Ch. Rep. 452. Herbert v Wren, 7 Cranch 376.
    3. Where a party claims equity, he must do equity. 2 Com. Dig. tit. Chancery, (373) 594.
    4. As to who ought to be made parties, they cited 2 Madd. Ch. 145. 8 Com. Dig. tit. Chancery Pleading. How could the widow be made a party when she was dead? No person could represent her. She had no interest in the fund arising from the sale of the land, having assigned the whole of hey interest away. There was no occasion, therefore, for her being made a party. An assignee of dower cannot maintain an action at law; but he may in a court of equity. In Coale v Mildred, 3 Harr. & Johns. 278, the assignor, and not the assignee, was made a party. If the assignee had been a party it would have been sufficient. Chambers v Goldwin, 9 Ves. 269. Blake v Jones, 3 Anstr. 651. As the widow had assigned her interest, it was not necessary, if she were alive, to malte her a party. Nor was it necessary to make Fletcher or Armstrong parties.
    5. There was no exception to the auditor’s report in the court below, and it is too late to except to. it in this court. 2 Madd. Ch. 507. Craven v Wright, 2 P. Wms. 182. Minus v Cox, 5 Johns. Ch. Rep. 441. Wilkes v Rogers, 6 Johns. Rep. 566. The English practice, where applicable, has been adopted by our courts. Thompson v M‘Kim, 6 Harr. & Johns. 302.
    
      Taney, (Attorney-General,) in reply.
    It has been said that Whelan and Cromwell held the land as a gift; and although void as to creditors, yet good as between the grantor and grantee. They were trustees for the benefit of the heirs of Maccubbin; and there is no desire to deprive them of one cent of what they have justly paid; but they, (or Cromwell as the survivor,) should account for all sums which they had received from -the profits of the estate. The object of the appellants is to have the audit opened. Cromwell cannot be considered as entitled to the whole surplus of the fund after the payment of debts. The deed of the 15th of November 1809, from Maccubbin to Whelan and Cromwell, was for the whole of the grantor’s real and personal estate; and the question is, how did the grantees take under that deed? Whether they took the estate as a gift to them, or in trust for the heirs of the grantor? In their answers to the bill filed by Eorsey, they say that they are not personally answerable for Dorsey’s debt, which they admitted to be due. The answers of the heirs stated that the deed was made in trust for their benefit. In the petition of Cromwell, he does not deny what the heirs had alleged in their answers; but stated that the jjond to th'e widow was given for the benefit of the heirs. In Cromwell’s last petition he claims the whole surplus as grantee; but it he is not so entitled, then he claims under the assignment from the widow for her dower interest.
    With respect to the jurisdiction of the court of chancery, ifi cases of dower, he insisted that the title to dower must be tried at law; but if there is an equitable right, then the court of chancery has jurisdiction. The general rule is, that the two courts have not concurrent jurisdiction in cases of dower. Cooper’s Plead. 135, 136. 1 Madd. Ch 196, 197. Curtis v Curtis, 2 Bro. Ch. Rep. 630, 632. There has been no ground shown in this case for the interposition of a court of equity. There is no admission of the dower right. To give jurisdiction to the court of chancery, the right must be admitted — the absence of an objection, does not give jurisdiction. The parties here are not all of them of full age — some of them are infants, and this appears by the record. If the widow could not go into chancery claiming her dower, her assignee cannot. But suppose she could go into chancery for her dower, could she go against this fund ? This fund was created by an act of the court, in its acknowledged jurisdiction. The trustee appointed by the court had no right, under the decree, to sell any thing but the estate of the deceased. He could not sell any right that the widow had in the land for her dower. This is not similar-to cases arising under the act of 17S6, ch. 45, and the supplements thereto, for selling the widow’s dower. Yet it has been urged, that the land was sold clear of the widow’s dower, and that the fund arising from that dower right has been brought into court. What, right had the trustee to sell such right, or bring any such fund into court? The decree did not direct him to do so; nor was the decree for any such purpose. Out of what fund was the claim of the assignees of the dower right directed to be paid? It was out of the fund arising from the ■sale made of land, after the death of the widow. Not having set up her claim before her death, her assignees cannot come in and claim as purchasers of the dower right. Suppose they claimed as having relieved an incumbrance when the land was gold. Here was no incumbrance, when the land was sold — the widow was dead. The surviving assignee does not and cannot claim to come in as a creditor, for he has not paid the amount of the bond given to the widow, and therefore he is no creditor.
    As to the proof adduced in support of the decree. The report of the auditor was not made upon any evidence produced to him, and it does not profess to have been so made. It was only an experimental account stated by him. But it has been said, that the objection to the auditor’s report cannot be made now, not having been made in the court below. It has been settled in this court, that an appellant appealingírom a decree of the court of chancery, may except in this court to the report oí the auditor, notwithstanding no exception was made in the court of chancery to that report. Ringgold v Ringgold, 1 Harr. & Gill, 67. Pannell & Smith v The Farmers Bank of Maryland, et al. 7 Harr. & Johns. 202. Giese v Thomas, Ib. 460; and there are many other cases, in which the late and the present court of appeals have so decided.
    There is no proof in the record that Maccubbin left a widow; nor is there any admission going to show that fact. The petition of Cromwell is no evidence of the fact; and it is to be likened to a bill, where the defendants may use parts of it for certain purposes, but is not compelled to use the whole. Thé certificate, (for it cannot be called a report,) of the first trustee, after he had relinquished his trust, cannot be received as evidence, that.the land was sold, by consent, free of the widow’s right to dower. There is no evidence that the widow ever released her right to dower, and took the bond of Whelan and Cromwell, as has been alleged. The copies of the bond, assignment and judgment, were not, of themselves, evidence, not having been proved and exhibited under a commission to take testimony.
    On the question of proper parties, he referred to Darne & Gassaway v Catlett, 6 Harr. & Johns. 475. Cooper’s Plead. 32, 33. Jackson v Vanderheyden, 17 Johns. Rep. 169. Jackson v Aspell, 20 Johns. Rep. 413. Curtis v Curtis, 2 Bro. Ch. Rep. 620, 629. Cathcart v Lewis, 1 Ves. 463. 2 Madd. Ch. 145.
   Martin, J.

delivered the opinion of the Court. Zachariah Maccubbin on the 15th of November 1809, executed a deed to David Whelan and John Cromwell, for all his real and per-' sonal estate. At that time he was indebted to Henry W. Dorsey in a large sum of money. After the death of Maccubbin, a bill was filed by Dorsey, to set aside this deed as fraudulent, and a decree was obtained vacating the deed, and directing the lands to be sold for the payment of Maccubbin’s debts. The lands were sold under the decree, and the proceeds brought into the court of chancery, and a surplus remained after the debts were paid. The widow of Maccubbin was entitled to dower in the lands sold.

It is alleged by Cromwell that the widow, on the 14th of .June 1810, made an assignment of her dower to him and Whelan, in consideration of a bond passed by them to her, to pay $400 per annum, during her life. That she afterwards intermarried with Joseph L. Fletcher, and died on the 14th of December 1814. That several payments were made on the bond before the 13th of June 1814, when it was assigned to Thomas Armstrong, who obtained a judgment at law uporx it. That the lands were sold by the trustee clear of dower, Cromwell and Whelan having consented to it, and that the heirs of Maccubbin were benefited by the contract made with the widow, the sum to be paid her being considerably less than she would have been entitled to receive in lieu of her dower.

Cromwell claims to stand in the place of the widow in equity, and to be reimbursed the money he has actually paid, and that for which he is answerable under the judgment. It must be admitted, if he, as assignee of the widow, would be en~ titled to receive the whole sum that ought to be allotted to her, his equity is not lessened, by claiming only a part of it.

Three objections have been relied on in the argument to reverse this decree. The first is, that the court of chancery had no jurisdiction in the case. In examining this objection, it is proper to remark, that the question is not, whether a, court of chancery has jurisdiction to assign dower, where no impediment or obstacle appears to the recovery at law; but whether a widow has a right to ask, ip a court of equity, pari; of a fund in lieu of her dower, where that fund has been produced by the sale of her husband’s lands which were subject to her dower, and increased by being sold, clear of that incumbrance, with her approbation and consent?

Why should she not have this relief upon general principles of equity, without invoking the aid of authorities, or the practice of chancery to support it? vShe has relinquished her right of dower in the lands of her husband, to which she was entitled by law, and being freed from that incumbrance, the proceeds of the sale have been greatly increased. The heirs were bound by her claim; and whether it is satisfied out of the lands, or the proceeds of those lands, seems to be a matter of no import to them. If the fund was increased by the relinquishment of dower, their portion was not diminished; and indeed, it cannot be overlooked, that one great object in selling lands in this way, is to produce a better price, and therebv benefit the estate. The case of Herbert, and others, v. Wier and others, reported in 7 Cranch 370, although not exactly similar to the one before us, bears, in many of its features, a strong resemblance to it. In that case there was a decree that the whole estate of Lewis Hipkins, deceased, should be sold, and the money brought into court. The estate was sold under the decree, and a memorandum was made on the deed of conveyance, that it was subject to dower. The purchaser conveyed to the trustees of Fendall, for whom he bought the land, and those trustees sold and conveyed to Deane the defendant. In the deed to Deane was a covenant to indemnify him against the claim of dower. 'The widow of Hipkins, and her second husband Wier, applied to the court of chancery, praying that dower maybe assigned to her in the lands of her first husband, or that a just equivalent in money may be decreed her in lieu thereof. Deane consented, if the court would decree dower in the lands, he would give an equivalent in money in lieu thereof. There, as in this case, it was contended, a court of chancery had no jurisdiction, and could not grant relief. To which it was answered, the land being sold subject to dower, and the deed to Deane having a covenant to indemnify him against dower, a court of chancery would call the parties before it, and decree money in lieu of land, when the purchaser; and widow consented to it. That if the purchaser paid a sum. of money in lieu of dower, it placed him in the same situation as if he had purchased clear of dower. The court determined that the widow should receive, not a sum in gross in lieu of her dower, but that one third of the purchase money should be set apart, and that she should receive the interest on it, during her life This is a strong authority, so far as it relates to the jurisdiction of the court. In Tabell v Tabell and others, 1 Johns. Ch. Rep. 45, William Tabell and wife entered into a mortgage of his property to Thomas Gardner, to secure the payment of a debt. The mortgaged premises were sold under a decree, the widow appearing and submitting, the debt was paid, and a surplus of the purchase money brought into court. The chancellor decreed, the widow was entitled to the use of one third of the purchase money, after satisfying the mortgaged debt, as her equitable dower, the same arising out of the real estate, in which she would have been entitled at law, subject to the mortgage. Titus v Neilson and others, 5 Johns. Ch. Rep. 452. From an examination of the records in. the court of chancery, it appears that court has uniformly assumed jurisdiction in cases like the present, and it is thought, not a case is to be found where relief has been refused to the widow, when the land had been sold clear of dower, with her consent. A sum in gross is sometimes allowed; but whether that practice is in analogy to the act of 1799, or upon general principles of equity, cannot affect this ease. The real estate of Peter Cassenave was decreed to be sold for the payment of his debts. The trustee, without proper authority, sold the lands clear of dower. The widow, by a petition to the chancellor, agreed to relinquish her right of dower, if the chancellor would decree her a sum out of the purchase money in lieu thereof. This petition was granted, and a decree passed in 1801, allowing her a sum in gross. The chancellor observes in his decree, this is the first case, in his recollection, where it was left to him to ascertain the proportion a widow is entitled to, on account of her right of dower, of the money arising from the sale of the whole interest in the lands of which her husband'died seized in fee, having a legal title. Whether the widow is to be allowed a sum in gross, or receive interest on. one third of the purchase money, daring her life, cannot affect the equity of this decree, because the sum decreed to be paid, is less than she would be entitled to receive in either way.

The second objection is, if the court oF chancery had jurisdiction, there is no evidence in the cause to support the claim.

If Cromwell is prevented by strict and rigid rules of law irom obtaining relief in the manner directed by the decree, it must be admitted to be a cause of regret, for so far as this record speaks, it appears justice has been administered to all the parties concerned. The conduct of Cromwell and Whelan, proves they were actuated by the purest motives. Although the deed was made 'absolute to them, they have considered themselves only as trustees for the heirs of the grantor, and the contract made with the widow is certainly beneficial to those heirs. They require nothing for the trouble this trust must have caused them, but only to be reimbursed and saved harmless for money laid out for the advantage of the estate.

If we are to require in this case the same evidence that would be necessary in a court of law, or upon an original bill in chancery, the decree must be reversed, for there is scarcely a fact, on which the petitioner relies to sustain his claim, proved by legal evidence. If the assignment had been denied\ its execution ought to have been proved by the witnesses to it, and a short copy of a judgment could not supersede the necessity oi showing a full copy of the record. But is the same full proof required under the circumstances of this case? The funds were in the court of chancery, and Cromwell prayed to have a part of those funds applied to the discharge of his claim. It has long been the uniform practice in the court of chancery of this state, in applications of this kind, to receive the papers on which the claim is founded, -as prima facie evidence, and the chancellor will act on them accordingly, unless the testimony is put in issue, and full proof is required by the opposite party. This practice is -founded in convenience, and to save expense to suitors in that court, and ought not to be disregarded by us* Who is to be injured by it? It does not deprive the party of his right to have full proof, if he thinks proper to demand it He may file exceptions to the report of 'the auditor3 and even if the report bad been confirmed, upon petition, the chancellor would direct it to be opened, and strict legal proof would be required. The instrument of writing offered as evidence of the assignment, is acknowledged before two justices of the peace, and the second report of the trustee is verified on oath.

It has been contended this question is not now open for consideration; and although it might be proper to sanction this practice in chancery, so fraught with advantage and convenience to suitors in that court, if this was the first time it had been presented to us, that it is now too late, for it has been settled, by decisions of this court, that upon an appeal, the whole audit may be examined, and if the chancellor has acted upon insufficient testimony, the decree must be reversed. It is- not perceived that these decisions can affect the case now before us. Admit, that upon an appeal the whole audit may be examined, it surely will not be said the decree must be reversed, unless there has been error in tbe proceedings. If the chancellor is justified by long usage and practice in his court, to act on evidence prima facie, which is there considered as not to require full proof, unless it is demanded by the parties interested, it is difficult to be imagined, how it can be imputed to him as eiv ror. If it is not error in chancery it cannot be error in this court, and if it was correct there, it must be sanctioned by this court. No decision, we think, can be found, to impugn this doctrine. It has been determined, as before observed, that an audit may be examined in this court, although no exceptions were filed in chancery to it; and if the chancellor has acted upon improper testimony, or mistaken the principles of Jaw, the audit would he reformed, or the decree be reversed. But that still leaves open the question, what is proper testimony? According to the rule in chancery, the testimony afforded by this record is proper and deemed sufficient, unless it is objected to. If exceptions are filed, the testimony is put in issue, and the chancellor ought to require full proof. If he then proceeds without strict legal evidence, it would be error, and could be taken advantage of in this court. Such was the decision in the case of Pannell & Smith vs. The Farmers Bank of Maryland. All the facts, on which that case rested, do not appear either in the record, or the case as reported in Harris & Johnson. The bill was filed by the Farmers Bank of Maryland, Robert H. Goldsborough and Alexander C. Magruder, against Mrs. Hanson, as administratrix of Alexander Hanson. Goldsborough and Magruder, as the mortgagees of an unrecorded mortgage, claimed a preference over the other creditors in the funds arising from the mortgaged premises. When the funds were about to be distributed, this preference was resisted by the other creditors of Hanson, and Pannell and Smith exhibited, as the evidence of their debts, promissory notes, with affidavits, that no part had been received* The chancellor directed two audits to be made; the one applying all the proceeds to the complainants’ debt; the other applying them equally among the creditors. To the second audit, the complainants filed several exceptions, one of which was, that the debts were not proved by legal evidence. This exception put the testimony in issuej and having done so, the chancellor ought to have required strict legal proof before he allowed any part of those claims. The exception, however, so far as it related to the sufficiency of proof, was disregarded, and this court was certainly correct in deciding, under the circumstances of the case, there was no legal evidence of the appellant’s debts. Not because the chancellor might not have allowed them upon the evidence of the notes with the probates on them, if there had been no objection to that testimony; but because the testimony was put in issue, by excepting to it, and that made it necessary to prove the execution of the notes.

It has been said, if the widow was entitled to a sum of money in lieu of her dower, it ought to have been paid out of the money arising from the first sale of the lands, because those lands alone were sold clear of dower. The sum allowed Cromwell by the decree is $1,850, without interest. The proceeds of the first sale are $24,763. To set apart one third of that sum, the widow to receive the interest on it during her life, would be considerably more than the sum allowed to Cromwell. After paying the debts of Maccubbin, there remained a balance from the first sale of '$16,219 42, which was ordered to be paid over to the heirs. If then the heirs received'the money, that ought to have been pa;d to the widow, upon every principle of equity she would be entitled to have her portion out of the funds afterwards brought into chancery from the sale of the residue of the lands.

We think the third objection relied on — the want of proper parties — cannot avail the appellants; and the decree is affirmed, with costs.

decree affirmed.  