Boyd v. . Redd

Avery, J.: A widow is entitled to dower in one-third of' the legal or equitable estate in lands of which her husband was seized in fee at any time during coverture, (The Oode,. Section 2103,) and the husband is generally deemed seized of any land “ when he may have had any right, title or-interest in the inheritance.” The Oode, Sec. 1281 (12). Where no agreement is made between the widow and the. heirs or devisees, the statute requires that she shall institute a special proceeding and that the heirs and devisees, and other persons in possession of or claiming estates in lands out of which she seeks to have dower allotted shall be made parties. The Oode, Secs. 2111 and 2112. Ifit-had never been expressly so held it would be obvious from, an examination of the statutes already referred to and the. other provisions of The Oode, (Sections 218, et seq.) that these special proceedings for the allotment of dower were-intended to be prosecuted to a judgment, which should be. binding and conclusive, as to the title of the husband and; *686 the right of the wife growing oat of his estate, upon the heirs and devisees, as well as upon other claimants who might be made parties. The very fact that persons in the adverse possession, or claiming adversely, are required to Toe made parties, is evidence of the purpose of the Legislature to conclude them by a judgment in the 'proceeding. Estoppels must be mutual, (Springer v. Shavender, decided at this Term) and if the. heirs or devisees are concluded from denying her right in the land allotted, she' can not be heard to deny the admissions in the pleadings •as to their rights in the portion not assigned to her. The special proceeding is a controversy instituted for the purpose of determining the relative rights of the widow and the heirs. The plaintiff, as widow of A. J. Boyd, had obtained presumably a larger allotment of dower by ■alleging in her petition, as was admitted by the heirs, that her husband was seized, among others, of the very tract of land in which she now seeks as against the same heirs to •set up a parol trust on the ground that the purchase-money was paid by her husband, in part at least, out of funds -accruing from the sale of her own separate real estate. The land allotted as dower to a widow is not subject to the payment of the husband’s debts during her life, (The Qode, Sec. 2105,) and as the law allows the personal representative, on showing the insufficiency of thepersonal assets, to sell any, or, if necessary, all of the real estate of the -decedent, outside of the dower, to pay the debts and charges -of administration, (The Code, Sections 1436 to 1444,) the creditors for whom he acts are interested in maintaining the stability of a decree which affects their rights. The final decree confirming the allotment of dower was entered May 6, 1892, and this action was not brought till the 16th day of July thereafter. When the plaintiff brought •her action, therefore, it had been adjudged in a proceeding *687 in a court of competent jurisdiction, wherein the heirs-at-law and devisees of her husband were parties defendant as they are in this action, that her husband wras seized of the Rand of which she now claims to be equitable owner in her own right, and that on his death it descended to his heirs and devisees subject to her dower. In consequence of this adjudication of seizin on the part of her husband, the value of her dower was in creased pro tanto. After deriving such advantage from the allegation and admission of her husband’s ownership in a controversy with the same parties as heirs-at-law and devisees, she will not be heard, when such proceeding is pleaded as an estoppel, to maintain an action founded upon the allegation that the findings which constituted the basis of the decree in that proceeding wrere untrue. Springer v. Shavender, supra. The plaintiff is clearly estopped from setting up the parol trust, and on the trial abandoned her claim to other relief demanded. The judgment of the court below is therefore affirmed. Affirmed.