Ex parte Burgess

The Chancellor, upon consideration, declined to make the order, as prayed for, and afterwards assigned the following as his reasons : By the last will of John Hook, his children, Agnes and Henry, became tenants in common, Agnes in one-third, and Henry in two-thirds, of the land devisedl Agnes married William Burgess, and having survived him died intestate, leaving three' children,William, Henry and Sarah now the wife of Josiah Bunker. Henry died intestate leaving a widow, Ann, now the wife of James Hanson, and two children, Jane, the wife of Samuel McVay and Henrietta Ann. The object of the petition is to assign to William Burgess, Henry Burgess and Josiah Bunker and Sarah his wife, their third part of the land to be held by them in common; and to assign to James Hanson and Ann his [237] wife, who was the widow of Henry Hook, and to Samuel McVay and wife and Henrietta Ann Hook the other two-thirds, to be held by them in common, according to their respective interests. The objection that I have is, that James Hanson and Ann his wife do not hold any part of the land. Ann is entitled to dower in Henry Hook’s two-thirds part, but until the dower shall be assigned to her she does not hold the land; and even supposing she should, on the assignment of dower, become tenant in common for her life, yet until the assignment she cannot in any character be a party to the partition. The following authorities seem to be explicit. In Co. Lit. 34 a, it is said “ and so it is, when the wife of one “ tenant in common demands a third part of a moiety, yet “ after judgment she cannot enter until the sheriff deliver “ to her the third part, albeit the delivery of the sheriff ‘ “ shall reduce it to no more certainty than it was.” Again, in the same place, it is said, “ for as concerning dower at “ common law, there must be an assignment, either by the “ sheriff (as hath been said), by the King’s writ, or else by “ the heir or other tenant of the land by consent and agree- “ ment between them.” In these passages, Lord Coke is commenting on the 39th Sec. of Littleton,where it is said, that on an endowment at the church door the widow may enter without other assignment, but as to dower at common law, he means to say, there must be an assignment before she can enter. See Co. Lit. 37 a, b, Sec. 43, 44 : 3 Lev. 84 : 2 Bac. Abr. 127, Dower, B : 3 Bac. Abr. 189, Joint tenants and tenants in common. The word tenet in a writ doth always imply a tenant of the freehold And, therefore, if one parcener maketh a lease for years, yet a writ of partition will lie; but if one or more make a lease for life, a writ of partition doth not lie between them; for that non tenent insimul et pro indiviso, they do not hold the freehold together, and the writ of [238] partition must be against the tenant of the freehold. And so, if one be disseised by the other, no writ of partition lies; and so, if one make a lease for life, the writ shall not be against her, but against her lessee; but if one make a lease for years, the other may have a writ of partition against her, Co. Lit. 167, a, b, 175-6: 16 Vin. Abr. 225,pl. 2. In Mundy vs. Mundy, 2 Ves. Jr. 122-124, the Lord Chancellor asks, “ cannot a dowress come here, as a coparcener can come, .for a partition ?” And afterwards, page 125, from the remark on Smith vs. Angel, Farresley’s Rep. 40, it would seem that dower being assigned the widow becomes seised, and the partition would lie. Partition between tenants in common and joint tenants by Stat. 31, Hen. VIII, was extended by Stat. 32,Hen. VIII, to limited interests for life or years; and the same right exists in equity by bill as at law by writ (Baring vs. Nash, 1 V. & B. 551), and the owner of the inheritance of the share of ténant for years need not be a party. As soon as the dower is assigned and the widow enters, she is a tenant, or holds her undivided dower, and.by the equity of the statute 32 Hen. VIII c. 32, and of our Acts of Assembly, partition may be made between her and the tenant in common I have met with no case in the books of such a petition. But a wi’it of partition lies against the tenant by the curtesy, because he continueth the estate of eo-pareen'ary; and so he shall have a writ of partition upon the Stat. 32 Hen. VIII c. 32; for although he is not joint tenant nor tenant in common, yet he is in equal mischief as another tenant for life and is also within the equity of the statute. Co. Lit. 175, a, b. Upon the same principle a tenant in dower should have partition. She, as to her dower, continues the estate, and the words, as well as the reason and equity of the statute, comprehend her equally with a tenant by the curtesy, or any other tenant for . life. The only [239] difference between her and the tenant by the curtesy is, that he continues the estate in the whole land, she in a third only. But I cannot perceive how that should create any difference; for their estates are the same although the portions of land differ. And Coke on Littleton says that her estate lies in the whole land, and that her dower must be assigned in common, for that she cannot have it otherwise than as her husband had it. Suppose the heirs of both tenants in common to have partition without her dower being assigned, and without making her a party:—she might still proceed against all of them for her dower, for she derives her title from her husband, who held the land in common with Agnes. After her dower is assigned to her in common, without metes and bounds, she must obtain her particular part by metes and bounds, or she can never enjoy it in severalty. If she were to release her dower to the heirs of Henry Hook, then they and the heirs of Agnes might prefer a petition and have partition made without noticing her, or if the tenants in common should have partition without any release, and without noticing her, and she should acquiesce and agree with the heirs of Hook, I do not perceive any objection; but for the security of all parties an agreement in writing should be made by all of them. The difficulty which presents itself on the present petition is, that as her dower has not been assigned she can make no entry, and does not hold the land and cannot be a party in the petition. In Sussex county a similar case occured in 1820. Paul Waples held one-fourth of six hundred and eighty acres, and John Smith Waples held three-fourths, as tenants in common. John Smith Waples died intestate, leaving a widow and five children. A petition was presented to the Orphans’ Court to assign to the widow of John Smith Waples her dower, without metes and bounds. This was done. [240] After confirmation of this assignment of dower, a decree for partition was made in chancery, and the share which the widow held as her dower was assigned to her by metes and bounds, as if she had been one of the tenants in common. This was the first case of the kind, and the only one until this petition of the Hook family. When Mr. Wells, who was counsel in the Waples case, brought the subject to my attention, I confess it was new to me; but on looking into the books and considering the reason of it, and that it came within the spirit of the Statute of 32 Hen. VIH, and of our own Acts of Assembly, I did not hesitate to give my sanction to that proceeding. But in the present case, the dower of the widow of Henry Hook, dec’d, not having been assigned, a partition cannot be decreed upon this petition. The petition was dismissed. At the next term of the Court a new petition was preferred for partition among the tenants in common under the will of John Hook, dec’d, in which James Hanson and Ann his wife, the widow of Henry Hook, dec’d, were not joined as parties. Upon this petition a decree was granted by the Chancellor, under which a partition was duly made and confirmed.