Eberle v. Fisher

The opinion of the court was delivered by Burnside, J. Dower is that estate which upon the death of the husband the law gives to the wife surviving, in all estates of inheritance, of which the husband was solely seized during coverture, and to which any issue she might have had might by any possibility have been heir: 67 Law Lib. 227; Co. Lit. 30, (B.) (filbert on Lower, 363. The right of dower attaches upon all lands and tenements,: Bell on the Law of Property 229; 67 Law Lib. 129. Judge Shippen, who sat in the Common Pleas of Philadelphia city and county in 1789, in the case of Graff vs. Smith’s administrators, 1 Dal. 484, declares our law to be, that a widow’s right of dower commences with her marriage; it is, says the venerable and learned judge, a sacred right; that no judgment,'recognizance, mortgage, or any incúmbranee whatever, made by the husband after the marriage, can at common law affect her right of dower. Even the King’s debt cannot affect her. ■ Yet it has been held, under our acts of assembly, for making lands chattels for [528] the payment of debts, that as to lands taken in execution, after the death of the debtor, the widow is barred of her dower. Our early legislation as well as many of our early judicial decisions do no honor to the lords of creation. They bear hard on the' weaker sex. Their rights have been held less sacred in Pennsylvania than in many of the' States of this Union. For myself, I will not be driven a ham’s breadth beyond the adjudged cases against the unfortunate woman, who has lost her husband. There is no ease' in our books which carries the extinguishment of a widow’s right of dower beyond a judicial sale, and this is not that; this is no more than a, voluntary conveyance. The husband had his choice whether to lié in prison, on the ca. sa., or surrender his property to his creditors, under the then existing insolvent laws. He chose the latter ; but there is nothing in these insolvent laws which commanded or authorized him to surrender the incipient rights of his' wife. Hence we find that in the case of Shark vs. Pettit, 1 Yeates 389, it was ruled that where the lands of the huáband, whereof he is seized in fee tail, during marriage, are sold on judgments obtained against him, and he afterwards suffered a common recovery without making his wife a party, or her exeeu-, ting, the deed to lead the uses, and she survives him¡; she is not barfed of her dower, because dower is not only a legal hut a moral right, and is highly, favored. A woman shall be endowed even of an estate tail determined: Co. Lit. 31, c. The life estate of the baron could only be sold by the sheriff independent of the common recovery, to which she was not a party, and in 2 Yeates 300 Kellar vs. Michael, assignment of his lauds by one in insolvent circumstances, to trustees for payment of debts, will not bar his widow’s right of dower. In 1822 our insolvent laws required the assignment to be made when the unfortunate debtor was in custody. He must so make 'it to obtain his discharge. His creditors designated and the court appointed the trustee. The interest which his assignee had was precisely his interest and no more ; Krause vs. Beitel, 3 Rawle 199. The trustee stands in the shoes of the insolvent. He sells his effects, real, personal and mixed. . He collects his debts and he divides the fund according to law among the creditors. If a surplus, he returns it to the debtor. The wife is not named in our insolvent laws, and if the insolvent has real estate, which is sold •by the trustee, and she survives her husband, she is entitled to dower in that estate. The judgment is affirmed.