Platt's Appeal from Probate

Loomis, J. Joseph S. Titus died leaving a widow enti — 579 — tied to dower. At the time of his death he was seized of and in the actual possession of real estate valued as follows, irrespective of incumbrances by mortgage :—The homestead with buildings, worth $2,100; the West Hill land, thirty acres, worth $1,500; the Canfield lot, twelve acres, worth $450; a building lot, worth $90 ; a horse shed, worth $60 ; total value, $4,200. The West Hill lot was subject to a mortgage amounting to $880, and the Canfield lot to a mortgage amounting to $650. There were other debts unsecured and the estate was deeply insolvent. The court of probate for the district where the deceased last resided appointed distributors to set out dower to the widow, who attended to their duties, and set out by metes and bounds the dower, amounting in value to $1,400, in the homestead lot and buildings. This was one third the gross value of the five pieces of land, disregarding entirely the mortgages upon the land, amounting to $980. The probate court accepted this assignment of dower, and on appeal to the Superior Court it was affirmed. The sole question is—whether the distributors, in determining the value of the dower interest to be assigned, should have deducted the amount of the mortgage incumbrances from the gross value of the real estate; or, to state the question more accurately in reference to the facts of this case,—when dower is to be assigned wholly in one piece of unincumbered land, where it had also attached to other pieces subject to mortgage, ought the latter to be valued as equities of redemption. It is a mere question of valuation in order that a just substitution may be made. Had one third in value of each piece been assigned as dower no' question could have arisen. It will be conceded by every one, as it was by the counsel for the appellees, that the latter mode would give the widow precisely one third of the real estate and consequently all she is entitled to. Does the mode adopted by the distributors produce the same result? If it does not, it would seem that there must have been error. It is clear that it is impossible to reach the same result by — 580 — the two different modes suggested, where a part of the real estate as here consists of an equity of redemption and the estate is insolvent. ' Take a very simple illustration in order to make the point more easily apprehended. The real estate out of which dower is to be assigned consists of three separate lots, A, B and O., each'of the value of three thousand dollars. Lots A and B are each subject to a mortgage of three thousand dollars, but lot 0 is unincumbered. -The mode of valuation adopted in the case at bar would give the widow the whole of lot G for her dower. This in value is the entire estate, for no one can be compelled to lift the mortgages from lots A and B, and neither the widow nor any one interested would have any motive to do it.. On the other hand, if one third of each lot was given for dower, the widow would take one third of lot G, instead of the whole. Again, if the incumbrances are to be ignored, it must be just as legal to assign the widow’s portion wholly in the incumbered lot A as in the unincumbered lot G, for the distributors on their oaths have given the same valuation to each lot: If then the logic of the appellees is correct, the distributors could give the widow her dower exclusively in lot A, although it is a mere equity of redemption and absolutely worthless under the incumbrance that is upon it. But it may be suggested that the dower right is specially favored, and that therefore the widow may properly be given her dower in the unincumbered piece. The widow may, it is true, be given dower in an unincumbered piece, not exceeding a third part, and she may, in the discretion of the distributors, be favored to the extent of giving her the particular property most useful to her, but there can be no favoritism as to her proportion of the estate, and the security of the dower interest depends on this fact. The statute is precise and definite in defining the exact limit of the dower, right, it is “ one third part of the real estate of which her husband died possessed in his own right.” Gen. Statutes, § 618. It is never more than a third, nor less than a third, but precisely one third ; and this third part is not a581 third part in square rods, but in fair and honest valuation. 1 Bishop on. the Law of Married Women, § 884. The counsel for the appellees in their brief say:—“ Mrs. Titus, the widow, was legally entitled to have her dower set out to the full extent of one third in value of all the live pieces of real estate. This could be done in each of the several pieces, or aggregated and set out in one, if any one was of sufficient value; ” citing Williams v. Williams, 78 Maine, 84, and French v. Platt, 27 id., 385. We full}'- accept both these propositions, but we insist that when the estate consists in part of a mere equity of redemption, the equity must be valued as such, and not as an estate without any incumbrance. In this connection too the principle announced in Goodwin v. Goodwin, 33 Conn., 319, applies, that “ where dower in one piece of property is assigned in another there is a substitution of property, a quid pro quo, for the convenience of the parties.” Recurring-to our previoús illustration, we ask—where is the quid pro quo, when the unincumbered lot 0, worth $3,000, is substituted for lot A, where the incumbrance of $3,000 renders the lot absolutely worthless ? Again, our view of the law in regard to the valuation of equities of redemption ih assigning dower, derives strong confirmation from the statutes that have been passed and their mode of execution, providing for the sale of equities of redemption subject to dower. The wording of the statutes has within a few years been somewhat changed, but the meaning obviously remains the same. In order however to show more clearly how dower in an equity of redemption was regarded we will cite the statute as it was originally passed in 1839, and which remained many years unchanged. We cite it as found in the Compilation of 1854, page 498, section 40. “ Whenever it shall be necessary that any real estate of a deceased person, which is incumbered by a mortgage, and is subject, to the widow’s dower, should be sold for the payment of debts, the court of probate having jurisdiction of the estate may, with the consent of the widow, certified in writing, * * * order the sale of the whole equity — 582 — of redemption without excepting the right of dower, and the sale being made and the avails ascertained, said court may order the value of the widow’s interest in the equity of redemption to be deducted from said avails and paid over to her in lieu of dower therein, said value having been first assessed by said court, or by one or more disinterested and judicious persons under oath, appointed by said court for that purpose.” It would seem very plain that under this statute the equity of redemption as such was to be sold, and the widow’s interest in the equity was to be valued and deducted from the avails. Suppose under this statute the estate consisted of a piece of land the entire value of which was twelve thousand dollars, but it was subject to a mortgage of nine thousand dollars, and it should be sold for three thousand dollars, would it not seem very absurd as well as unjust, to ascertain the dower interest.by dividing $12,000 by three— thus producing a sum more, than sufficient to absorb the entire avails of the sale ? The question under consideration has never been passed upon by this court, nor by the Superior Court so far as we can ascertain. In the early history of our own law it was a subject of contention whether we should adopt the doctrine of the English courts, that dower could not be given in an equity of redemption. The reason given for such a doctrine was, that the husband must have been seized of the land to entitle his widow to dower and that in every mortgage of a fee the seizin was in the mortgagee; but while so holding as to dower, a very different principle seems to have been applied to the corresponding right of curtesy in the husband, for the same courts held that the right of curtesy would attach to an equity of redemption in the wife, thus treating it as an estate and not merely as a right. But this court at an early day, in Fish v. Fish, 1 Conn., 559, refused to accept the English doctrine, for the sound reason that, as between the mortgagor or his representative and any other person except the mortgagee or his representative, the mortgagor is to be — 583 — deemed the owner with seizin in himself; and such is now the prevailing doctrine in the courts of the United States. When we established the doctrine that dower could be given in an equity of redemption and that the widow’s right of dower does not attach till the husband’s death, it would seem most natural to value the equity rather than the land, in all cases where this is necessary to determine what constitutes a third part in value. In many, we may say in most cases, this becomes immaterial. Of course the dower right cannot be assigned and separated from the other rights in the estate except by establishing metes, and bounds on the land, and it is so assigned for the very purpose of showing to what particular part of the estate the life use of the widow attaches. It follows therefore that where dower is to be assigned in a single piece of land subject to mortgage, the land itself should be valued and one third in value assigned subject to the mortgage. This is the only practicable way of giving one third the equity, and if by any means the mortgage incumbrance shall be removed, the widow may thereafter enjoy her dower as though there had been no incumbrance. So that our reasoning as to the mode of valuation applies merely to cases of substitution, like the one at bar, to cases of sales of the equity subject to dower, and to cases where no one can be compelled to pay the mortgage debt and remove the incumbrance. If we seek confirmation of our position from decisions in other jurisdictions we shall find only a few eases that throw any light directly upon the point in question. In most of our sister states the common law doctrine prevails, that dower attaches to all the real estate of which the husband was seized during his life, so that there are comparatively fewer cases than with us, where the mortgage incumbrance is paramount to dower. In such cases however the principle for which we contend has been recognized. In 2 Jones on Mortgages, 3 ed., § 1693, note 5, it is said that “ a widow who has joined her husband in a mortgage of land of which he was seized, thereby extinguishes her dower interest to the extent of the debt secured by the — 584 — mortgage, and she is dowable only of the surplus.” In this state the widow under our law occupies the same position, for the act of the husband alone during his life is just as effective in divesting the dower interest as the concurrent acts of both are in the other states. In 1 Scribner on Dower, 2d ed., p. 595, § 24, it is said that “ where the husband has mortgaged his lands at a date anterior to the marriage, his wife is dowable'only of the equity of redemption.” And in the second volume, p. 696, it is said that “if the lands of the husband are subject to an incumbrance paramount to dower, the burthen is to be apportioned between the widow and the owner of the inheritance.” In Hartshorne v. Hartshorne, 1 Green’s Ch., 349, the rule is stated as follows:—“ If the husband before marriage, or in conjunction with the wife after marriage, execute a mortgage, the widow can only have her dower subject to such mortgage; and if the mortgage be foreclosed and a sale made, the widow’s rights are barred except to the surplus after satisfying the mortgage. If the purchaser of the equity of redemption takes an assignment of the mortgage, the debt is not thereby merged or extinguished, and the widow is entitled to her dower in the equity of redemption only, subject to the mortgage.” See also Baker v. Fetters, 16 Ohio St., 596; Tucker v. Field, 51 Miss., 191. The principle contended for has been frequently recognized in other states in those eases where, upon foreclosure of mortgages to which the widow’s dower was subject, the entire premises have been sold and the avails distributed. In Hawley v. Bradford, 9 Paige, 200, it was held that “ where the wife joins her husband in a mortgage of his real estate, she is not entitled to have the mortgage satisfied out of the husband’s interest in the premises exclusively, so as to give her dower in the whole premises notwithstanding the mortgage and not in the equity of redemption merely. Thus, where the mortgaged premises are sold under the mortgage, the wife is only entitled to be endowed of the surplus which remains after payment of the mortgage debt.” — 585 — In Tabele v. Tabele, 1 Johns. Ch., 45, it was held that the widow was entitled to the nse or interest of one third the surplus proceeds of the sale of the mortgaged premise's. See also Jennison v. Hapgood, 14 Pick., 845. The foreclosure of the Canfield lot after dower had attached does not affect any of the questions in the present case. To avoid misapprehension however as to the mode Of estimating the value of the dowable interest in the severable pieces of land subject to mortgage, it ought to be stated that where the mortgage incumbrance exceeds the entire value of the land on which it is placed, as in the case of the Can-field lot, where the value was §450, and the incumbrance was |650, the excess of incumbrance is not to be deducted from the value of the equity in the other pieces. The equity in the Canfield lot was of no value. There was error in the judgment complained of and it is reversed. In this opinion the other judges concurred.