
    Boltz v. Stolz.
    A widow’s unassigned right of dower, in lands of her husband, occupied and enjoyed by herself and their children, may be subjected by proceedings in equity to the payment of a judgment against her upon a debt created by her after her husband’s death.
    Error to the District Court of Cuyahoga County.
    
      Robinson & White, for plaintiff in error.
    This demurrer raises the single Question: Whether in Ohio the right of a widow to dower in the estate of her husband, before assignment thereof, can be subjected, to the payment of the debts of the doweress contracted during her widow-hood, in the absence of fraud, by the appointment of a receiver, and a compulsory assignment of the dower through him, on a simple creditor’s bill ?
    In Ohio dower is dependent upon the statute. It is purely the subject also of legislative control. 6 Ohio St., 550; Id., 547; 10 Id., 596.
    Whether contingent and inchoate in the wife, or consummate in the widow before assignment, it is always a personal right, subject to the choice and volition of the doweress. It is not property or estate until her choice and will have been exercised in its assignment and segregation from the estate of the husband. Before its assignment this right to have dower cannot be alienated. It cannot be divested by bargain and sale. In this respect it is above the will of the doweress, and yet it inheres as a personal right or privilege.
    The creation of the right is dependent upon two conditions at common law. 1st. Coverture. 2d. Seizin of the husband in reality at his death.
    So there are but two ways in which the right can be defeated at common law'. 1st. By voluntary release of the doweress. 2d. By death.
    It cannot be divested — nor is it in any sense subject — to the will of the husband.
    All these qualities of the dower right have been established and recognized by a long line of adjudications. Jackson v. Aspell, 20 Johnson, 413; 1 Washburn on Real Property, 284, and cases there cited; 17 Johnson Rep. 168 ; 1 Barb., 500; 5 Id., 538; 32 Ala., 404.
    The principle that before assignment dower rights are not the subject of alienation so that a purchaser can acquire an interest in law, is well settled in Ohio, and has never been questioned. Douglass v. McCoy, 5 Ohio Rep., 527; Miller, Admr., v. Woodman et al., 14 Id., 521.
    So the law, as the “ perfection of reason ” in the growth of the centuries, has come to put its safeguards with jealous care around this right of dower for the protection and support of the helpless; on the one hand making it entirely the creature of her choice and election, and on the other placing it beyond the reach of selfish rapacity by making it inalienable.
    The philosophy of these peculiar attributes of dower is easy to understand. It is designed to afford to a class peculiarly weak, helpless and unfortunate, support and maintenance. It is a provision to secure these when the defenses and aids of coverture are taken away. But once make this inalienable right property, subject to enforced divesture by first coercing the doweress to assign it, and then sacrifice it by forced sale, and you strike a blow at the very foundation on which this beneficent right is based.
    The exercise of such power is extreme, as well as anomalous.
    Unassigned dower cannot be divested nor transferred by the contract of the doweress with a stranger to the estate nor by the operation of the contract relation at all. The release operates only by way of estoppel. But your honors are asked to compel her to do what is impossible for her to do of her own volition.
    2d. The unassigned dower of a widow is not subject to levy and sale on execution at law, to satisfy her debts.
    This proposition is so well sustained by all the authorities that it will not be .disputed. Mason v. Allen, 5 Me., 215; 2 Scribner on Dower, 37; Jackson v. Aspell, 20 Johnson, 412; Gooch Ex'r v. Atkins, 14 Mass., 381; Nason v. Allen, 5 Me., 415.
    The point we seek here and now to make, is that the ground on which the courts proceed in concluding that the interest cannot be seized in attachment or levied on in execution, is that it is of such an uncertain character, resting wholly within the will and choice of the doweress as a personal right, as not to be in any sense property, subject to the force and scope of the judgment.
    There is no property in esse for assignment. The property, or estate, of dower, is a creation of the will of the doweress. Nor is such naked remote possibility of a right or property, not potentially in being the subject matter of any contract, assignment, or transfer which equity will effectuate. Needles v. Needles et al., 7 Ohio St., 432; 11 Windall, 110.
    The estate of dower is dependent upon its assignment. This act of assignment, is an essential element in the progress of creating property out of the right of property. Johnson v. Morse, 2 N. H., 48; Rapalje and Lawrence L. Dict., p. 88.
    This matter of its assignment recognizes the potency and effect of the will and choice of the doweress. The right of her election is recognized in all the states, as affecting the question of assignment, its exercise in most being limited in point of time. In the state of Ohio, her choice and election is fully recognized in the law regulating the assignment of dower. Its assignment is wholly regulated by statute.
    Dower in Ohio must be assigned in one of four ways. 1st. In writing by the heir or owner of the next estate of inheritance on the acceptance of the same by the widow. 2d. On the petition of the widow in the proper court making the proper parties. 3d. By the legal representative of the widow, dying before assignment but after suit brought by her which if pending in the same manner that the widow could have procured the same; and 4th. Incidentally in an action of partition.
    In the latter case her dower cannot be involuntarily assigned. She is a necessary party to the suit; and may waive or release her right to the owner of the next estate, if she so elects. See sections 5707, 5758, 5711, 5756 and 6770 Revised Statutes of Ohio.
    This element of choice, judgment and election in the doweress, is everywhere recognized by the Statutes of Ohio. As for illustration: 1st. On sale of the premises in which she is dowable, in a proper case, she may elect to be endowed out of the proceeds. Rev. Stats., § 5719.
    2d. Where, during coverture, a jointure is provided by the husband to be in lieu of dower, she may on the death of the husband, waive the jointure and elect to take dower. Rev. Stats., § 4189.
    3d. Where provision is made in the will of the husband to be in lieu of dower, she may elect within one year from the taking effect of the will to take her legal rights, including dower in the estate, or take according to will. Rev. Stats., § 5963 and amendments.
    These are some of the familiar provisions of the Statute on the subject illustrating the power of the doweress over the right and estate of dower.
    The court is here asked by decree in equity to coerce the doweress in the face of this remarkable state of the law in Ohio, guarding her choice and volition.
    4th. In the absence of a proper statutory provision equity will not assist a creditor to reach those assets of his debtor, which, under no circumstances, could have been subject to execution at law. Dundas v. Duteus, 1 Ves. Jr., 196; Nantes v. Carrock, 9 Id., 188; Francis v. Wigzell, 1 Maddock, 264; Rider v. Kidder, 10 Ves., 368; Groghan v. Cooke, 2 Ball and B., 230; Donovan v. Finn, Hopk. Ch., 59; Shaw v. Aveline, 5 Ind., 380; Stewart v. English, 6 Ind., 176; see also Freeman on Executions, § 425, and see 3 Ohio, 514; 11 Ohio, 156.
    It should be observed that the interests of the judgment debtor, sought to be subjected in equity, were that class of rights denominated generally choses in action; and it is the well settled doctrine deducible from these and other cases, that, generally, choses in action cannot be so subjected. The reason underlying this doctrine is that no lien is acquired on such interests by the judgment. Equity jurisdiction in all these cases is simply ancillary to the judgment and proceeding at law. It does not reach further than the judgment. By discovery it simply brings to light what already existed. The property, the assets, were in existence before. Equity cannot create property. •
    5th. There is no statutory provision in the State of Ohio authorizing proceedings in equity to subject a widow’s unassigned dower. The provision of the statute of Ohio providing for the discovery and subjection of equitable assets by the judgment creditor by action, is found in sec. 5464 of the Revised Statutes of Ohio. We have no other statutory provision conferring upon courts power to entertain and enforce proceedings in'aid of execution against “equitable assets” of the judgment debtor. It should be remembered that this statute was intended to authorize proceedings against “ equitable assets.” This statute fairly defines the classes of assets or property'which maybe so reached. There are but two general expressions used, under which somewhat diverse classes of interests could be gathered: 1. Equitable interests in real estate. 2. Any chose in action. These are the only two heads under which it would be possible to classify such a right or interest as unassigned dower.
    We have already seen that unassigned dower is not an “interest in real estate,” either legal or equitable: see cases already cited. Hence we may reasonably conclude that the dower right does not, and cannot, fall under that class of “ equitable interests in real estate ” mentioned in the statute. But to place the question beyond all cavil, we have but to refer to a familiar principle of interpretation. When special things are mentioned in a statute by way of example or illustration, as subject matter of its operation, and then an expression occurs covering a class of things, the class, however general, must be taken to be of the same nature as the special example.
    And this brings us to the consideration of the question whether this right falls within the scope of this statute as the “ chose in action ” mentioned as one of a class of equitable assets.
    It is true that in want of a better phrase to define the unassigned dower right of a widow, the courts and law writers have come to call it indiscriminately — “ a chose in action;” a “right in action;” a “thing in action;” etc., but it will be found on careful examination of all these cases, that the distinctive idea sought to be expressed is, that it is a right in action as distinguished from a thing in possession.
    
    They do not, in any case, undertake to claim that it possesses all the elements of a chose in action, nor that it possesses any of the essential characteristics of the class of property classed in law as choses in action.
    What is a “ chose in action ? ”
    Bouvier defines it to be, “A right to receive or recover a debt, or money, or damages for breach of contract, or for a tort connected with contract, but which cannot be enforced without action.” 1 Bouvier’s L. Diet., 265; supported by Comyn’s Dig. — Chitty Eq. Dig.
    If this be a correct legal definition of a “ chose in action,” it requires but a simple reading of it to show how foreign the personal right 'vested in the widow to have dower assigned her is to á “chose in action.” The element which inheres as an essential quality in a chose in action is this: that it is a right always growing out of a contract obligation. Blackstone, 2nd Boob, p. 397. In the light of this essential element of a chose in action, examine the peculiar language of this statute conferring jurisdiction in aid of execution, and we cannot doubt the meaning of the legislature. This is the language: “ Or in any money contract, claim, or chose in action, due or to become due to him.”
    This word “due” always, and everywhere when literally used, implies the obligation of a contract expressed or implied. It is such a chose in action as is due or to become due. It would be straining this statute far beyond the evident intention of the legislature to make this include the right to have dower assigned.
    
      Alex. Hadden, for defendant in error.
    The right or interest of a widow to or in the lands of which her husband died seized, under the statutes regulating dower, has been variously regarded by the courts of the different states. Perhaps the two states, the holdings of whose courts on this subject are most apart, are Connecticut and New York. In a line of decisions, running over almost a century in the former state, it has been held, that immediately upon the widow’s right of dower becoming consummate, i. e., immediately upon the death of the husband while seized of lands, there is created a freehold estate, and she becomes a tenant in common with the heirs, and that assignment of dower is nothing more than ascertaining what part of the realty she shall enjoy and apartirig it to her — in fact, nothing more than partition between tenants in common. Stedman v. Fortune, 5 Conn., 462.
    And in keeping with this doctrine, the court has gone so far as to hold that dower is such an estate without any assignment that the widow may convey it, and her assignee will hold as tenant in common with the heirs or other persons entitled to hold the estate. Wooster v. Hunt’s Lyman Iron Co., 88 Conn., 256.
    In New York, on the other hand, the courts, construing a statute similar in its general features to that of Connecticut, have held that the right of dower rests in action only, and cannot be aliened so as to enable the grantee to bring an action in his own name. Jackson v. Vanderheyden, 17 Johns., 167; Jackson v. Aspell, 20 Johns., 411. And that one who claims to be owner of the right of dower by purchase from the widow has no estate, and if the surrogate order dower to be admeasured on his application, the proceedings are unauthorized by the statute and void (see Jackson v. Aspell, supra); that before assignment the doweress has no estate in the land, .and she cannot convey or assign her interest. Ritchie v. Putnam, 13 Wend., 524; Scott v. Howard, 3 Barb., 319. That before assignment of dower, the right rests in action only, and the widow, though she may release, cannot convey or assign it. Green v. Putnam, 1 Barb., 500.
    It will be conceded that the courts of no two States have taken more clearly defined opposite views regarding this right. We believe we are safe in saying that Connecticut has gone to the extreme limit in one direction, and New York has done the same in the other.
    No court has ever undertaken to hold the right of dower before assignment to be a more immaterial thing than have those of New York.
    Now, if we can find holdings in these two States, as to the liability of the right or estate of dower before assignment to be subjected to the payment of the widow’s debts, they will throw considerable light on the question raised in this case and stated above.
    In Connecticut, see Greathead’s Appeal, 42 Conn., 874, decided in 1875.
    In New York, see Tompkins v. Fonda, 4 Paige, 448; Stewart v. McMartin, 5 Barb., 438; Payne v. Becker, 87 N. Y., 153.
    So that whether considered as a freehold estate in the land or a mere personal right, incident to the status of widow-hood under given circumstances, the courts of these two states can find no reason or argument founded upon or growing out of the nature of dower in support of the proposition that it cannot be subjected to the payment of the widow’s debts, and whatever its nature, they unite in holding that there is no rule of public policy which exempts such property from the payment of its owner’s debts.
    What is this property' right? Jacobs, in his dictionary', calls it a chose in action. See McArthur v. Franklin, 15 Ohio St., 486; 16 Id., 200; Unger v. Leiter, 32 Id., 210.
    All this while the right is inchoate. After becoming consummate and before assignment, it has been variously denominated by the authorities as “ a vested interest,” “ a right or interest in land,” “a legal interest in land,” “a substantial right, possessing in contemplation of law the attributes of property and to be estimated and valued as such; ” as “ a thing or chose in action; ” as “ a right paramount to all subsequent titles derived through the husband.” Jacob’s Law Dictionary; 16 Ohio St., 200; 27 Iowa, 148, 150; 12 Ind., 37, 38.; 4. Paige, 448; 1 Smede’s & M. Ch, 490.
    While it may be fairly conceded to be the general holding, and while it has been decided and well settled as law in most of the states, that a conveyance or transfer by the •widow of her unassigned dower interest to a stranger to the title, conveys to him no legal interest in the land, and, while it has been equally well settled in some of the states that such an unassigned interest is not such an estate as can be seized and sold on execution at law, yet these things do not necessarily imply that a fair sale of such an interest is inoperative or void in equity; nor does it necessarily follow that such dower interest, before the same is assigned to the widow, is one that cannot be reached by proper proceedings in a court of equity for the purpose of subjecting the same. Both of these things were certainly true of any other equitable right or chose in action, before the adoption of the code, and yet the transfer of such rights could always have been protected, or such rights subjected, by proceedings in equity.
    It is manifest, for instance, that transfers of unassigned dower interests, when the same are inoperative or not sufficient to carry any legal interest in the land, have frequently been protected and enforced in equity. 33 N. H., 524-529; 12 Ind., 37; 2 Story’s Rep., 630; 7 Wendell’s Eq., 152; 27 Iowa, 198; Davidson v. Whittlesey, 1 McArthur, 163.
    From these authorities it would seem to be settled beyond successful controversy, that the right to have dower is not a purely personal right, but that it is a vested property interest, transferable in equity to a stranger to the title, before the same is set off by metes and bounds. It is difficult to perceive why a person entitled to this kind" of property which may be exceedingly valuable shall be permitted to keep it away from her just creditors, or why an interest of this kind, like any other valuable right, cannot be subjected in equity.
    If this kind of an interest is an “ equitable interest,” “ a chose in action,” or “ a claim,” the statutes of Ohio distinctly and specifically authorize such a proceeding. Section 5464 Revised Statutes of Ohio.
   Nash, J.

The plaintiff in error is a widow, having an unassigned right of dower in the real estate of which her husband died possessed. She withheld obtaining an assignment of such dower for the purpose of keeping such property from the reach of her creditors. The defendant in error recovered a judgment against her upon a debt contracted after her husbánd’s death. Execution was issued and returned unsatisfied. . She has no property which can be subjected to the payment of this judgment at law. These facts were made to appear to the court of common pleas in proceedings in an action brought by Clemens Stotz against Louise C. Boltz, and thereupon that court made the following order:

“ It is therefore ordered that Felix Nicola be and he is hereby appointed Receiver herein, with full power and authority to take possession of any right or interest which said defendant may have in said reai estate in petition herein described. And said defendant is hereby ordered to execute and deliver to said Receiver, upon his making a proper demand thereof, a conveyance of her dower estate in said premises, and upon her failure to thus convey as aforesaid, within ten days after the making of said demand, then this decree shall be and operate as such conveyance, and shall confer on said Receiver all rights and powers, and convey to him all interest and estate which said conveyance by said defendant would confer and convey. It is further ordered that said Receiver proceed to sue for the assignment of said defendant’s dower estate in said premises as soon as the same shall have passed or been conveyed to him as aforesaid, and if the same be assigned to him in gross in money, then he shall pay therefrom the costs herein, and the plaintiff’s said claim with interest as aforesaid, and the balance then remaining to said defendant. And in case said dower shall be assigned by metes and bounds,' then said Receiver shall take possession of said premises so assigned, and rent or sell the same as in his opinion shall be for the best interest of all parties concerned therein, and apply the proceeds or rents and profits, as the case may be, to the said claim and costs until the same be fully paid, and pay the balance to said defendant, and in case he should rent tlie same, after said claim and costs are paid, he shall re-convey to said defendant said premises. And of his proceedings hereof he shall make due report to the court. And it is further ordered that said Felix Nicola, before entering upon his' said duties as Receiver aforesaid, give bond to the parties to this action in the sum of #800, with sureties to be approved bjr the clerk of this court.”

This judgment was affirmed by the district court.

The courts below were right. Section 5464 Rev. Stats., provides in substance that when a judgment debtor has not personal or real property subject to levy on execution sufficient to satisfy the judgment, any equitable interest which he has in real estate as mortgagor, mortgagee or otherwise, or any interest he has in any claim or chose in action due or to become due, shall be subject to the payment of the judgment by action.

In McArthur v. Franklin, 15 Ohio St., 485, and again in McArthur v. Franklin, 16 Id., 193, dower inchoate is spoken of as a right or interest in the land. When this interest has become absolute by the death of the husband, although unassigued,'we think that it maybe reached by judgment creditors by a proceeding under section 5464. In support of this conclusion we cite Tompkins v. Fonda, 4 Paige, 448; Davison v. Whittlesey, 1 McArthur, 163; Payne v. Becker, 87 N. Y., 153. If the assignment of dower is once made it may be reached by the widow’s creditors by execution. There is no reason for relieving it from this burden when unassigned, that does not apply with equal force to assigned dower. To hold otherwise would be a temptation to the possessor of this interest in lands, and it is sometimes a very valuable interest, to continue in joint possession with the heirs, and to neglect to ask for a formal assignment for the purpose of depriving her creditors of the benefit of her right of dower for the satisfaction of their claims. In this ease it appears that Mrs. Boltz did not have her dower assigned for the purpose of keeping this property beyond the reach of her creditors.

Judgment affirmed.  