Orrick v. Pratt

Bates, Judge, delivered the opinion of the court. Orrick’s wife was the widow of Thomas J. Robbins, who died in April, 1859. At the time of the death of Robbins, he owned a tract of land in St. Charles county, and occupied a dwelling-house upon it, together with some land about [232] it, used for out-liouses and stables, a garden, a meadow, and other lots. And adjoining this land, and on the same tract of land, was a field of sixty-six acres, which, at the time of Robbins’ death, was rented out and in the actual possession of a tenant. After the death of Robbins, his widow continued to occupy the part of which he died actually possessed, without accounting to the estate for any rent therefor. Robbins died the owner of other lands also. The widow, under the eleventh section of the act concerning dower, elected to be endowed absolutely, in a share of her husband’s lands equal to the share of a child, in lieu of dower of one-third part thereof for her life; and her share was assigned to her in partition, which partition was so made that the estate of Robbins should receive the rents until the first day of March, 1862, after which time the individual heirs were to receive the rents of the several parcels of land allotted to them respectively. The estate of Robbins received the rents of the sixty-six acres from the time of his death until the first day of March, 1862. The plaintiffs, Orrick and wife, (who was the widow of Robbins,) petitioned the St. Charles Probate Court for an order upon the administrator of the estate of Robbins, that he should pay them (in right of the wife) the rent received from said sixty-six acres up to the first day of March, 1862. The court refused their petition, and gave judgment against them, from which they appealed to this court. 1. The share of the estate of her deceased husband, which the widow elected to receive absolutely, (in lieu of one-third for life,) is to be regarded as dower; and until it was assigned to her she was entitled to remain in and enjoy the mansion-house of her husband, and the messuages or plantation thereto belonging, without being liable to pay any rent for the same. (Secs. 11 & 21 of the “ Act concerning dower.”) 2. If the administrator received the rent of the mansion-house and the messuages or plantation thereto belonging, or any part thereof, before the assignment of dower to the widow, the court should order such sum to be paid to her. [233] (Sec. 14, of Art. 6, of the “ Act respecting executors and administrators.”) 3. The partition in this case was equivalent to an assignment of dower. 4. As to what is meant by the words used in the statute, “ messuages or plantation” belonging to the mansion-house. In Indiana, under a statute, which entitled the widow to continue in the mansion-house and messuage thereunto belonging until her dower was assigned, it was said, in the case of Grimes v. Wilson, 4 Black, 333, that “ it is difficult to define with precision the signification of the legal term messuage. The best writers represent it as synonymous with house, and as embracing within its meaning an orchard, garden curtilage, adjoining buildings, and other appendages of a dwelling-house, bift they limit the ground which may be appropriated to these purposes to a small quantity. The statute, by using the words mansion-house and messuage, cannot be supposed to have designed to give to the latter term a meaning entirely new and inconsistent with its usual sense; and though the act may have somewhat enlarged its import, so as to include a few acres of land (greater or less in extent, according to circumstances) adjacent to a dwelling-house and appropriated peculiarly to its use, it cannot be construed so as to make that term embrace a whole farm or plantation.” In Virginia, where the widow was entitled, until dower was assigned, to continue in possession of the mansion-house and plantation belonging thereto, she was held to be entitled to the whole tract of land, including unenclosed woodlands. (Latham v. Latham, 3 Call. 181; Moore v. Gilliam, 5 Munf. 348.) In Kentucky, under a similar law, she was held entitled to the enclosed lands, but not to the unenclosed woodlands. Our own statute, extending the widow’s quarantine to the mansion-house and messuages, or plantation, may well be understood to mean that when the mansion-house was on a plantation she should have the whole plantation without restriction to the messuage; but when there is only a messuage [234] attached to the mansion-house, she should have only that. This appears to bo the more reasonable when it is considered that so large a portion of the population of the State live upon and derive their support from plantations or farms, as they are more commonly called, which are generally small; and that, upon the death of the husband, the possession of the whole farm by the widow may be very often of great importance for the present support and comfort, not only of the widow herself, but also of the family, of which, by the death of her husband, she has become the head. And it is improbable that any great injury can happen to any other person by this construction of the statute, for any person having an interest in the land, or a creditor of the widow, may apply for assignment of the widow’s dower, at any time after the husband’s death, and thus terminate her quarantine. (Sec. 38 of the Dower Act.) There remains only the question whether, if, at the death of the husband, a portion of the plantation be rented out and possessed by a tenant, the widow is entitled to the possession or receipt of rents of that part, and the question is not without difficulty. On the one hand, it forms a portion of the plantation, to the whole of which she is entitled; and on the other hand, the statute, which confers his right, apparently supposes an actual possession in the husband, to which she succeeds, by providing that she shall remain in the mansion-house, &c. If there be distinct farms or plantations upon one tract of land, it is clear that the widow has her quarantine of that only which belonged to the capital mansion-house of her husband, that is, of the farm upon which was situated the house usually occupied by the husband immediately before the time of his death. Again, there may be one farm composed of several distinct tracts of land, and it appears probable that in such a case the widow would be entitled to her quarantine of the whole. If the owner of a plantation rent out a particular field, or part of it, that is not necessarily a separation of the field or [235] part from the plantation. Whether it be or not is a question of fact, for determination in each case. If it be not permanently separated, yet the widow’s right being merely possessory, and she being unable to have actual possession during the term created by her husband, she cannot have her quarantine of such rented part until the term shall expire, and then her right would immediately attach. In this case, therefore, we think the widow’s right, in the rents collected by the administrator, to be as follows : for the rents received for the unexpired term created by her husband, she was entitled only to a part thereof, in proportion to her general interest as doweress in the real estate; and from the time of the expiration of the term created by her husband, at the time of the assignment of her dower, she was entitled to the whole rent. Judgment reversed and cause remanded to the lower court for further proceedings, in accordance with this opinion. Judges Bay and Dryden concur.