Stevens vs. Richardson.
Appeal from Worcester county court. An action oí] dower was brought by the appellant, the demandant in tba court below, against the appellee, and the following statement submitted- to the court fpr their opinion. George Richardson died in the year 1802-,' seized of the lands and mills .mentioned- in the demandant’s declaration, without malting a"will, or disposing of.them, and leaving the following children, Betsey, David, Emma, Samuel, 'Molly and 'Nancy. A petition was filed in the county court, at Slay term 1809, for a division of-the said lands under the act of J786, ch. 45, to direct descents, and.the several sup-' plenients thereto. Commissioners were appointed by the 'count, who made their return that said lands and mills would.not admit of division, which return was confirmed by the., court, John Stevens intermarried with Jttelsey, one of.the daughters of the said George Richardson, who was the eldest child, entitled to take at the valuation. John Stevens, his wife being in full life, came into court and elected, in right of his wife, to take the said lands and mills at their valuation, and to pay to the other heirs > *157their proportion of the valuation money. The respective portions oí the valuation were regularly secured to be pen’,' according to law, by bonds given to the heirs severally. All which bonds have been since paid off except cue. Afterwards Betsey, the wife of John Stevens, died in the year 1810, and after her death in the year 1813, John Stevens intermarried with the demandan!. John Stevens died in 181-4, in the possession of said lands and mills, and without receiving a deed for them from the commissioners, leaving the demandant his widow. The question submitted to the court on these facts was, whether John ~ Siemens was seized of such an estate during his intermarriage with the demandant as to entitle her to dower? The. county court, [Martiny Ch. and Robins, A. J. j gave the following opinion: This case involves many ques^lions, and soma of considerable di faculty. It ban been asked, could John Siemens elect <yl all in right of his wife? If so, does his election invest the wife with a title in hcr^j own share, and himself with ike residue? Or docs it invest her with a title not only ¡.=i her dividend but in the whole éstate, he actisig merely as her representative? Or does he, by his election, become the, purchaser,of the whole estate, and divest the wife with other heirs altogether of the inheritance? It is in vain we seek for a casé analogous in the .English law; it. is a case sui generis, and must depon'd o:j the construction oil-the acts of assembly regulating the descent of landed, property in this state. The original act of 17oG is silent, as to the husband's electing to take i:i right of his wife; audit is only by a liberal construction of that act that it is in any way athiifes-ildo. But we find the practice of his exercising this right has prevailed at a very early period after the passage of ll-e first law, ami has been recognized by an act of the legislature as early as 1802, as a subsisting rigid. To deny it, therefore, at this time, would shake the title of much of the landed property in the country, and be productive of great inconvenience. We feel bound to support it. If then he has this right, in what capacity does he come in? Is he merely the representative of the wife, and electing for her as the party entitled to take as heir? Docs he invest her with the whole inheritance? Or docs he invest her with a fee in her own dividend only, and become the purchaser himself of the residue? it is certainly contrary to
*158the policy of that lav;, from whence we derive our notion,;, of descent, to admit any person to come into the inheritance except those of the. blood, of the ancestor* and by that law the hysband would i¡e considered a stranger, and. entitled to no rights as heir, but that derived,from the/cnie cover); heiress, as her,baron* and at first view we would be led to suppose the election of the husband would invest tl\e wife with the whole estate.. But from the whole scope of our descent laws, the right of election is personal, and has no respect to what is deemed, in the English law, propinquity of blood, except in a few instances. The manifest intent of lire act of 1786, when an application is made for a division of an estate, is to render an estate held .in common, one in severalty; either by a division, when it is susceptible of it, or by an election, or by a sale of the whole. If the husband’s election could invest the wife with a title in her dividend only, and make him the purchaser of the residue, it would defeat the object of the act altogether' in facilitating the division of the intestate’s estate. A division, made with the effect contemplated, would last only during the coverture. The husband then could not,by his election) invest the wife with a fee in her dividend^ of the estate, and become the purchaser in his own right, of the residue, nor would it be less reasonable to suppose that the. husband’s election should invest the wife with the whole inheritance, ^Suppose the wife’s share only one, tenth,, would any reasonable construction of the acts of assembly' admit, that after; the husband had paid the value of nine-tenths of the estate the whole would devolve upon the wife* in fee, in excluí,ioi\of his oyvn descendants? Yet this case, might frequently occur. The first of those positions is so-, repugnant to the spirit and scope of. the acts of assembly on this subject, and the latter so unreasonable, not to say unjust, and the. practice under those acts has been uniformly so different* that the court must reject them as totally inadmissible. And we are l^.dto the necessary inference, that the husband, on his election, must take the whole estate as a purchaser. And this involves another question, all important in the discussion of this case, viz. 'With what kind of an estate was John Stevens invested? Has he (by the mere act of electing,) the whole freehold? Or had lie only an equitable interest ta be consummated-by paying the purchase money and obtaining a deed from the com-*159'.r.isslonors? To entitle the wife to dower, a freehold estate in the husband, during the coverture, is indispensable! It is contended, on the part of the plaintiff, that the mere act of election vests in the husband such an estate, and tiiat it, has an operation similar to that of a surrender; or a sheriff’s sale of lands. The court, after the most mature deliberation they have beau able té give this subject, cannot view it in this light. It is true the act of lTSG requires no deed to the heir electing to take; nor are we aware that jit is necessary (under any of the acts,) for a party claiming by descent. The whole estate devolves upon all the heirs at law of an intestate, subject to be defeated by an election of one in exclusion of the other heirs. And all ike acts of assembly relative t<> desceñís) áeein to draw a distinction between a person coining in by descent, and ¡i purchaser. In the first no deed seems necessary, in the latter it is indispensable; and by the act of 1 803, though it speaks retrospectively, a deed seems to be called for in this ver)’ case. It would be attended with great inconvenience if die doctrine was once established, that a purchaser under a commission, or a husband, electing in right of his v. ife, could by parole evidence show a transfer of the freehold. It would bo a departure from that precision our law ins for ages required in the transmission of real property. We deem it a correct position, that a husband, electing íú right of his wife, comes in a.) a purchaser, and ¿S such cannot be invested with any other than an equitable interest until a deed w ordered by the court, and executed by the commissioners. This case differs materially from the case of Messex and Jiloodmo.'th, decided in Somerset. There the husband elected to take the estáte as eldest son and heir. There no deed was necessary to consummate the title and seizin of die husband, but. here it is indispensable. Upon the whole view of the case, the court are of opinion, that John Stecens liad only an equitable interest in this estate, ami had not sack a seizin as would enable Ins widow to claim her dower. Judgment was therefore entered'for the defendant, and the demandant appealed to this court.
*156Under the act ©f 1786, ch, 45, to direct descents, an election by the hm-hand in right of his wife to take tier ancestor's land at the valuation of the ^commissioners, and his executing bonds to the other heirs for the payment of their respective proportions, vests in him an estate Jin tee. 5n the whole land elected to he taken, and'docs not pass any juiciest whatsoever therein to his wife.
' Every election, tinder the acts to direct descents, to > take the whole estate of the ancestor at a valuation, and to pay the other heirs their just proportions of the value in money, and passing howls • therefor, settles in the person electing without a deed from the commissioners, the legal estate in fee in the lands ejected to be taken; amt there is no difference between an election by a child of the intestate, and an election by a husband in right of his wife, who was a child of the intestate. « *
In either case the electing party takes as a purchaser, and does not derise his title by descent from the ancestor..
Such an election by a husband in right of his wife, and his giving bonds as before stated, entitles hU second wife to dowe? in tho lands elected to be taken»
*159The cause was argued before Buchanan, Eaiiue, and Stephen, J. by
Wilson, for the Appellant.
No counsel appeared for the appellee.
*160Earle', j.
delivered the opinioti of the court. This iá an action of dower, and we are called on by the case to give a construction to the acts of assembly regulating the law of descents. A decision of ány. question arising on those acts of the legislature, deeply concerns the landed interest of the country, and is, in every view, of much importance. The one under consideration is peculiarly of this character. We have to decide upon the legal effect of aix election made by a husband, in right of his wife, to take the whole estate of her ancestor at the valuation set upon it by the coihmissioners', and pay to her bróthers and sisters their juát proportions of the value thereof in money; to determine in fact, whether such election vests in the husband the inheritance in fee in the lands elected to be taken, to the exclusion of his wife; and if it docs so vest, whether he is thereby clothed with the legal estate, or only acquires therein an equitable interest to be perfected by the payment of the purchase money, and a conveyance by deed from the commissioners.
These points are raised in a suit by the second wife of John Sievsns, who elected to take the lands and mills, set forth in her declaration, in right of his former wife. He died in the year 1814, possessed of those lands and mills, but without any other title to them than what he derived by election to take them in right of his first wife, not having fully paid the purchase money, nor obtained a deed for them from the commissioners.
Whether the husband is capable, by his election in right of his wife; to vest the inheritance in fee in the lands elected to be taken in himself, to the exclusion of his wife, is a question on which we cannot at this time permit ourselves to doubt, whatever might have been our sentiments on the point, if we had been invited to act upon it soon after the first act of descents in 1786. The capacity in the husband to do this has been fully recognized by the legislature of the state, by an act passed in the year 1802; and it is believed, that in numberless cases, before and .since that law, the courts of justice have every where sanctioned the principle, that the election by the husband, in right of his wife, to taka her ancestor’s lands at the valuation of the commissioners, vests in him an estate therein in fee. Considering that it would be of serious moment to the community to cast a shadeof doubt on this doctrine. *161
i:, this late 'period, tisis court must decide, that such an election by the husband, in right of his wife, to take t’ne lands of her ancestor, according to their value as ascer • feined by the commissioners, followed up by bis passing bonds to the other heirs for the payment of their just proportions of the value thereof in money, agreeably to the acts of assembly on this subject, vests in him an estate in fee, in the whole land elected to be taken, and does not pass any interest whatsoever therein to his wife.
The further question to be inquired into is, whether the legal title to the land, elected to be taken, vests in the husband by. the election, or only an equitable interest, to become a legal estate on the payment of the purchase money, and obtaining a deed from the commissioners? We hold that every election, under the acts of descents, to take the whole estate of the ancestor at a valuation, and to pay the ether heirs their just proportions of the value in money, and passing bonds for the same, settles in the person electing the legal estate in fee in ihe lands elected by him to be taken; and in this respect we cannot perceive any difference between an election by a child of the -intestate, and an election by a husband in right of his wife, who was a child of the intestate, in either case, the electing party takes with his own free consent, and by his own act, as a purchaser, and does not, as was suggested, derive his title-by descent from the ancestor; and in both cases, the whole proceedings, from the petition to the election, become like a matter of record, which to future times may test their legal correctness. An election by the child or heir of the intestate has always been thought to pass the legal estate in fee, for it was not until the year 1820, that the legislature empowered the commissioners to convey to him. As to a husband electing in right of his wife, it is true the commissioners were authorised to convey to him the land, elected to be taken, at an earlier period.
The act of 1802, ch. 94, section 6, was enacted for this purpose, but it is to be observed, that this act has in this aspect only a retrospective operation, and from that time, until the year 1820, the commissioners acting under the descent laws, had no power to make any such conveyance to a husband.
The court then must entertain the opinion, that the elec» lion of John Stevens, - in right of his first wife, to take the *162Íánds>iri question, vested in'him, under the circumstances in which it was made, the legal estate in fee in the lands ¿nd mills- mentioned iri the plaintiff's declaration, and that she is- entitled to dower in the same. The judgment must be reversed, and- a procedendo awdrded.
Judgment üeversed, &c.