
    
      White v. White & als.
    April Term, 1861,
    Richmond.
    [80 Am. Dec. 706.]
    (Absent, Allen, P.)
    I. Dower—Assignment of—Honeyed Compensation in Lieu of.—Unless It is impossible to assign to a widow ber dower in real estate in specie, a court of equity bas no power, under its general jurisdiction, against her will, to decree a sale of the real estate and to provide her a compensation in money in lieu of her dower.
    2. Statute Concerning Partition—Construction of.—A widow entitled to dower in the real estate of her deceased husband, is neither a j oint-tenant, tenant in common or coparcener with the heirs at law, within the meaning of the statute concerning partition, Code, ch. 124, p. 526, so as to authorize a court of equity to sell the whole estate, against her will, and compel her to receive a monied compensation out of the proceeds, in lieu of her dower.
    3. Judicial Sales — Personalty—Widow’s Share.— In decreeing a sale at the suit of the heirs of a decedent’s estate real and personal, except the widow’s share of the slaves, the court should protect and secure to her her interest in the proceeds of the sale of the other personal property.
    4. Deeds—Construction of—Case at Bar,—A conveyance of slaves in trust for S for her life, and after her death to B and the heirs of her body forever. But should B die without heir or heirs of her body, in that case to C. The conveyance does not give B a separate estate; but upon her marriage and the husband’s possession of the slaves, the right of B in the slaves is vested in him.
    Ldmund P. White, of the county of Caroline, died about the year 1856, leaving a widow and four infant children, and possessed of a large real estate of eleven hundred and fifty acres, some forty slaves, and stock, farming implements, &c., suitable for such an estate, bank stock, &c. Wood-son Wright qualified as administrator
    *upon the estate, and acted as such until his health failed, and he was
    succeeded by P. L. Marye. Mrs. White qualified as guardian of her children, and acted as such for the eldest of them, John B. White, until he came of age in 1860. She was removed from the guardianship of the others, of two of whom William S. Barton became the guardian, and Charles Herndon became the guardian of the other.
    In August 1860 John B. White filed his bill in the Circuit court of Caroline county, in which he states that Mrs. White is entitled to dower in the real estate of her late husband, and that the children are each entitled to a fourth thereof. That though the estate is a large one, yet from its peculiar position dower cannot be allotted to the widow, nor partition made among the children without great injury to the parties; and that their interest will be promoted by a sale of the entire subject, and the assignment of dower and distribution of the proceeds of sale according to the rights of the parties.
    He further states that an equal division of the slaves in kind according to the rights of the parties cannot be made, and that for other causes, a sale of the slaves should be made and the proceeds of sale divided. But if the court should be of opinion that Mrs. White is entitled to have her third in kind, he asks that this third may be assigned to her; and the other two-thirds sold, and the proceeds of sale distributed.
    The guardians of the infant defendants were appointed guardians ad litem to defend them in this suit; and they filed answers concurring in the opinion expressed in the bill, that partition of the real estate' could not be conveniently made, and that the interest of the parties would be promoted by a sale. And they also concur in the opinion that a sale of the slaves would be for the interest of the infants. They also state that among the slaves to be sold or divided are three named Billy, Jim and *Carter, the offspring of a woman named Nancy, which are claimed by Mrs. White as her separate property, by gift by deed from her brother Lawrence Battaile, Jr. ; but which they insist became the property of her husband upon her marriage with him. This deed is filed with the answers; and by it Lawrence Battaile, Jr., in March 1827, conveys to trustees Nancy and her two children John and George and her future increase, in trust for the benefit of his mother Ann Hay Battaile, for her life, and after her death to “Ann Champ Battaile, (Mrs. White) and the heirs of her' body forever. But should the said Ann Champ Battaile die without heir or heirs of her body, in that case” he gives the said slaves and the increase of Nancy, to his niece Sarah Robinson Battaile; with a further limitation over upon the death of the latter without heir or heirs of her body.
    Mrs. White demurred to the bill, for want of equity; and answered claiming her dower in the land and her one-third of the slaves, in kind ; and objected to a decree for the sale of either.
    A number of witnesses were examined as to the difficulty of assigning the widow her dower in the land, and dividing the remainder among the heirs; all of whom expressed a very decided opinion that such assignment and partition of the land would be very injurious to the parties; and they state the grounds of their opinion.—They also express the opinion that it would be for the interest of the infants that the slaves should be sold.
    The cause came on to be heard in September 1860, when the court overruling the demurrer of Mrs. White, and being of opinion from the evidence, that partition of the real estate could not be conveniently made in kind without a serious diminution in its value, and that the interest of the parties interested would be promoted by a sale; appointed commissioners to sell the land. And not deciding for the present whether the '^limitation over of the slave Nancy and her increase upon the death of Mrs. White without issue, was void or not, the court appointed other commissioners to allot to Mrs. White one-third of the slaves in value of which her husband died possessed, if such partition could be made.—And the cause was removed to the Circuit court of Spottsylvania county.
    The commissioners appointed to assign to Mrs. White her share of the slaves, made their report; from which it appeared that they had assigned to her two of the descendants of Nancy. And in October 1860 the cause came on again to be heard, when the coui;t confirmed the report; and it appearing to the court that the limitation over of the slaves Billy and Carter descendants of Nancy, allotted to the widow, cannot possibly take effect until after the death of the widow, and declining to decide whether the said limitation is valid or not, the commissioners thereinafter appointed to sell the slaves.remaining after the allotment of her third to the widow, were directed to invest the proceeds of the sale of the slave Jim in Virginia State stock to await the further order of the court. And commissioners were appointed and directed to sell the slaves remaining which were owned by the plaintiff and the infant defendants in common, and the perishable estate either at public or private sale, as they should think best; and after paying the expenses of said sale and the costs of the suit, to pay over the nett proceeds, to the complainant and the guardians of the infants; one-fourth to each of the infants.
    Erom this decree in the cause Mrs. White applied to this court for an appeal, which was allowed.
    R. T. Daniel, for the appellant.
    Barton and Herndon,- for the appellees.
    
      
      Dower—Assignment of—Moneyed Compensation in Lieu of.—In Simmons v. Lyles, 27 Gratt. 930, it was said: “The courtis not authorized to substitute a commutation ora compensation in money, merely because dower in kind may prove to be injurious to the interests of heirs or creditors. The right of the widow is a legal one, and is paramount to any and every claim or lien created by the husband after the marriage. In White v. White, & als., 16 Gratt. 264, this court laid down the rule on this subject in the strongest possible manner. It was there held, that unless it was made to appear that it was impossible to assign dower in the real estate, it was not competent for a court of equity, in thp exercise of Its general jurisdiction, to decree a sale of the whole property, and to provide a compensation in money in lieu of dower against the consent of the widow, however much it might be to the interest of the heirs to have a sale of the whole, and a moneyed compensation to the widow.”
      The principal case was cited to the same effect in Wilson v. Branch, 77 Va. 69, 70.
      In Hoback v. Miller, 44 W. Va. 637, 29 S. E. Rep. 1014, the court said: “Counsel for appellant cite White v. White, 16 Gratt. 264, and Simmons v. Lyles, 27 Gratt. 922, to the effect that if the property is insusceptible of assignment in kind, in the suit for partition, it may be sold, and she paid money in lieu of dower in kind, and would thence deduce the correlative right of the widow to force a sale upon the heirs; but, if those cases be correct, I know of none sustaining the widow’s right to sell the freehold, out and out, to get money commutation for her dower. The common law warrants no such remedy to her. Nor can we base it on general principles of equity jurisdiction; for, there being no such right by common law, equity will not afford a remedy without right.”
      Same—Same—Same—Alienation of Land in Lifetime of Husband.—While it is true, as laid down above, that the widow cannot be compelled to receive .a compensation in money in lieu of dower in land of which the husband died siezed, unless it is impossible to assign her dower in kind, yet, by statute (Va. Code 1849, ch. 110, sec. 112, Va. Code 1887, sec. 2278), if there has been an alienation made under decree of court, or by the husband, in his lifetime, she cannot insist that her dower shall be assigned in kind nor can she refuse to receive an equivalent annuity in lieu of dower; the optionin this matter being lodged by the statute exclusively with the alienee. Verlander v. Harvey, 36 W. Va. 379, 15 S. E. Rep. 56; Hoback v. Miller, 44 W. Va. 637, 29 S. E. Rep. 1014.
    
    
      
      Statute Concerning Partition—Construction of.— The proposition that a widow, entitled to dower in the real estate of her deceased husband, is neither a joint-tenant, tenant in common, or coparcener with the heirs at law within the meaning1 of the statute concerning partition, was expressly approved in Casto v. Kintzel. 27 W. Va. 756.
      See generally, monographic note on “Dower" appended to Davis v. Davis, 25 Gratt. 587.
    
   BEE, B,

delivered the opinion of the court:

The court is of opinion that as it is not made to appear *that it was impossible to assign to the appellant her dower of and in the real estate of her husband, it was not competent for the court of equity, in the exercise of its general power, to decree a sale of the whole property, and to provide a compensation in money to the appellant in lieu of her dower, against her will and without her consent, however much it might be to the interest of the heirs at law of the decedent to have a sale of the whole estate and a monied compensation allowed to the appellant, instead of a sale of two-thirds of the estate and the remainder in the life estate of the widow. '

And the court is further of opinion, that a widow entitled to dower in the estate of her deceased husband, is neither a joint-tenant, coparcener, nor tenant in common with the heirs at law, within the meaning of the statute concerning partition, in the Code of Virginia; and that therefore no power is conferred by that statute upon the court of equity to sell the whole estate against her will and without her consent, and compel her to receive a monied compensation out of the proceeds in lieu of her. dower.-

And the court is further of opinion, that whether the limitation in the deed of the said Bawrence Battaile, Jr., of the 19th of March, 1827, was a good executory limitation over or the contrary, (as to which the court deems it unnecessary to express any opinion), -yet that the - said deed did not create a separate estate for the sole and exclusive use of the appellant; but that the martial rights of her husband attached upon such -interest as she took under the said deed, and that such interest should be- disposed of as the other personal estate of the said Edmund :P. White deceased.

And the court is further of opinion that if there was other perishable personal estate of the said Edmund P. White, besides the said slaves, as seems to be contemplated *by the said decree, the failure of the appellant to make any express claims to the same, did not bar her right to an interest therein; and that the Circuit court should have respected her right to a distributable share thereof, and not directed the whole proceeds of the sale of the same to be paid over to the children of the said Edmund P. White deceased, to her exclusion.

Thus, the court is of opinion that the said decrees are erroneous.

Therefore reversed with costs, and cause remanded, with directions to proceed in the | same according to the principles hereinbefore declared, and further as justice and equity shall require.

Which is ordered to be certified, &c.

Decrees reversed.  