Davison's Appeal

Mr. Justice Sterrett delivered the opinion of the court, The learned master was clearly right in deciding that the will of Thomas Chadwick gave his widow, now Mrs. Stotler, one of the appellees, the same interest in the real estate of which he died seised, as she would have been entitled to under the intestate law. In the second paragraph of his will he directs that his widow shall receive one-third of the proceeds of his entire estate as long as she lives, and that the residue of his estate should be equally divided among his four children. If he had died intestate she would have taken, under the law, “ one-third part of the real estate for the term of her life.” The devise of “ one-third of the proceeds,” &c., gave her precisely the same interest in the land: Carlisle v. Cannon, 3 Rawle 488. Inasmuch then, as her interest in the real estate was the same, whether she took under the will or under the intestate law, it was wholly unnecessary for her to make any election in regard to it; and the principle applies that, where the interest under both is the same the devisee takes under the intestate law rather than under the will. Mrs. Stotler was, therefore, invested with that interest in the land which the law gives to the widow of an intestate who dies leaving issue. Was that interest divested? The master found that when the money was loaned by appellant to Mrs. Landwehr, and the mortgage taken to secure the same, Mrs. Stotler agreed verbally that she would not assert any claim prejudicial to the mortgagee. Based upon this fact, the contention of appellant was, that inasmuch. as he had purchased the land at sheriff’s sale under the mortgage, Mrs. Stotler was bound by her agreement, or at least was estopped thereby from setting up [397] any claim to the land as against him. This proposition was rightly held to be untenable ; that, being a married woman, Mrs. Stotler’s interest in the real estate could not be thus divested ; that she was not bound by her agreement, nor was she thereby estopped from claiming her interest in the land. This conclusion was undoubtedly correct, and is abundantly fortified by authority. While a different rule has been recognised in some of our sister states, it has been settled in this state by an unbroken line of decisions, that the interest of a married woman in real estate cannot be divested except in the mode pointed out by our statute, and that she cannot be estopped by acts or declarations, which in the case of a feme sole would operate as an estoppel: Peck v. Ward, 6 Harris 506 ; Ulp v. Campbell, 7 Id. 361; Glidden v. Strupler, 2 P. F. Smith 400. It follows, therefore, that she was entitled to a decree; but, should it have included the arrears due her at the date of the sheriff’s sale ? We think not. Appellant’s mortgage, on which the property was sold, appears to have been the first lien on the land after the widow’s interest was acquired, and the effect of the sale was to divest the amount due her and in arrear at that time. In Wertz’s Appeal, 15 P. F. Smith 306, it was decided that where the owner of land charged with a widow’s thirds mortgaged it, and afterwards a judgment was recovered against him, under which the land was sold, there being then arrears of interest due the widow, the purchaser took subject to the arrears of interest as well as to the mortgage. The reason for the rule announced in that and kindred cases is, that a mortgage intervened between the estate, or charge out of which the arrears were payable, and the judgment under which the sheriff’s sale was made. But, where, as in the present case, no mortgage intervenes, the arrears of dower, capable of ascertainment, are divested and thrown upon the fund produced by the sale; and it is the duty of those interested to see that the property sells for sufficient to cover such arrearages. This principle is distinctly recognised in Dickinson v. Beyer, 6 Norris 274, in which the authorities are collected, and the distinction existing between the different classes of cases clearly pointed out. It is unnecessary to do more than to refer to the opinion in that case for a full and lucid exposition of the law on the subject. Land charged with dower had been sold on a judgment immediately subsequent to the charge, and it was held that the arrears due at the time of the sheriff’s sale were discharged thereby. From what has been said it follows that the amount due Mrs. Stotler at the time of the sheriff’s sale should not have been included in the decree. In other respects we discover no error. Decree reversed, and it is now adjudged and decreed that Henry B. Landwehr, Jane E. Landwehr and John S. Davison, pay to Jane E. Stotler $>89.20, in full of her damages for detention of her dower, or interest in the [398] nature of dower to October 1st 1880, and that on October 1st 1881, and annually on the first day of October in each and every year thereafter, during the life of the said Jane E. Stotler, the said defendants pay to her the sum of $40; and that payment of the said several amounts be enforced by execution in the nature of a levari facias against the seventeen acres and one hundred and forty-one perches of land only, as described in the fourth section of the plaintiff’s bill; and that the said defendants pay the costs in the court below including the master’s fee fixed by the court; and that the appellees pay the costs of this appeal.