Milton v. Milton

WESTCOTT, J., delivered the opinion of the Court. In the year A. D. 1866, Caroline Milton, the widow of the late John Milton, filed her petition in the probate court of Jackson county, claiming dower in seventeen hundred and sixty acres of land of lier late husband in said county, The court assigned to her four hundred acres of this land as her dower. Since these proceedings, Mrs. Milton has ascertained that she was entitled to dower in other lands of her late husband in the same county. In November, A. I).. [370] 1873* she filed this her petition in the Circuit Court, alleging the previous assignment in 1866, the subsequent discovery of the other lands, and stating that at the time she filed her first petition she “was unable'with any certainty to set forth the lands of her husband in full.” She prays that these subsequently discovered lands may be valued, and that to the extent of the value of her dower interest in them she may be given lands in the seventeen hundred and sixty acres iin which she has already received dower, her desire being to have a new admeasurement of dower in the entire estate, and an allotment of her entire interest in one parcel or connected body of land. The executor answered the petition, admitting the claim for dower in the newly discovered lands; objecting to the opening of the first assignment, and insisting that there is no right except as to the lands in which dower has not been assigned. Upon the petition and answer, the court ordered an assignment of dower in the netvdy discovered lands and denied the prayer so far as it sought to open the previous assignment. Prom this order this appeal is prosecuted. The error assigned is the refusal of the Chancellor to open the previous assignment and to carve out of the seventeen hundred and sixty acres an additional amount of land equal in value to her interest in the lands which subsequently came to her knowledge. The want of knowledge of the existence of her right in the lands discovered after the assignment, at the date of the assignment, is the ground upon which relief is sought in this ease. Had the widow known of the existence ©f these lands at the date of the first assignment, it was no doubt within the power of a Court of Chancery to have allotted in one tract an amount of land equal to her interest in the whole. Can this be done how, against the consent of the executor, is the question presented for our consideration. It certainly cannot be done by a petition under the sum [371] mary method provided by statute for a simple admeasurement of dower, which is the method sought to be made available here. That is a special and summary proceeding, in which no relief other than that specially authorized by the act can be granted. If it is desired to call into operation the general power of a court of equity to open and set aside the former assignment upon the ground of mistake or fraud, the proceeding must be by bill. This is the rule in Alabama, where they have a similar statute. No objection of this kind having been urged, we deem it, however, nobimproper, in view of the conclusion we reach, to dispose of the question upon its merits. A court of equity is here asked to set aside a judgment of another court having complete jurisdiction both of the subject matter and the parties. The request is made by one of the parties to that judgment; that party was the plaintiff, and the judgment sought to be set aside is a judgment awarding-the relief which was prayed for, and this relief was the full measure of her right upon the case made. Under this judgment, she recovered all the dower interest she had in this land, and was placed in possession of it as her several property, with a life estate. All the interest she ever had in the remainder wras destroyed, and that remainder became subject to the trusts of the will and the rights of the devisees and creditors, and has so remained for a period of six or seven years. As against the executor, who is the representative of these trusts and rights, she cannot now have an admeasurement of dower based upon a dower interest in this portion of the land, because at her own request a court of competent ju-. risdietion has divested her of all interest and she has no estate therein. There was no mistake, such as a court 0£ equity would correct. Within the meaning of the authorities, there was in fact no mistake. There was simple ignorance of a right of dower in additional and other lands. This right of which she was before ignorant can now be enforced without affecting this previous judgment of the court [372] by an assignment of dower in tire newly discovered lands. The Circuit Coxxrt could not in tlxis collateral manner set aside the first assignment. No appeal having been prosecuted from the order or judgment assigning dower, it is conclusive between the pax-ties, the widow and the executor. 17 John., 123. The judgment is affirmed.