Clift v. Clift

Folkes, J. This is a bill by the widow against the administrator and heirs .of "William Clift, deceased, for year’s support, homestead, and dower. It is charged in the bill, and the proof establishes, that the deceased owned quite a quantity of real estate, consisting of several pieces of improved agricultural lands, some wild lands, and several hundred acres of coal lands, as also some mill property. The wild and unimproved “lands were held by the deceased as a tenant in common with others; the mining lands being also held as a tenant in common. — 19 — The bill alleges that the widow was not fully informed as to the real estate owned by her deceased husband, and seeks a discovery from the heirs, who are charged with being in possession of the title papers, as to the number of pieces, where’ and how situated, and the condition of the title of the respective pieces, some of it being said to be involved in litigation. After properly overruling the demurrer, which we do not deem it neeessary to discuss in this opinion, the Chancellor, after answer filed, directed a reference to the ■ Master for a report as to the several pieces of land owned by the deceased; and upon report of the Master, showing the number, character, and location Qf the lands, entered a decree appointing Commissioners to allot dower, and directing that they ascertain the value of all the lands owned by the deceased (except the mining lands and the lands in litigation), including the value of the lands sold by the heirs since the death of the ancestor, and including the value of his interest in lands held in common with others, and that they assign to complainant, by metes and bounds, one-third part in value of all of said lands and interest, placing the "dower upon the lands which the deceased owned in his individual right. The Commissioners were instructed not to take into account the lands the title to which was in litigation, but as to such lands the cause was to be retained in Court to await the result of such litigation, and if gained by the heirs the dower would thereafter be — 20 — assigned. As to the lands upon wliich the coal mines were being worked prior to and at the death of the husband by the lessees thereof, under a lease for ninety-nine years, at a fixed rent or royalty per ton for all coal taken out, the Commissioners wore authorized to assign to the widow one-third of the rents and royalties to which her husband was entitled, to be held by her from the date of his death for and during her life, unless the coal and minerals should be sooner exhausted, in which event she is to be entitled to have and enjoy one-third of ¥m. Clift’s interest in said lands covered by said mineral leases. The Chancellor further decreed that the title of the widow to dower should relate back to the death .of ¥m. Clift, and that she is entitled to _ one-third of the rents of the mines, and to all the rents of the homestead and dower lands which may be assigned to her from the date of the death of her husband. The Master is directed to take proof and report what amount of rents and royalties have accraed upon ¥m. Clift’s share of the coal and mineral lands since his death, and who has received the same. The decree further provides, that in assigning dower the Commissioners shall not be compelled to assign her a third part of each separate tract, but may make the assignment according to quality and quantity, in such manner as will give her one-third in value of the whole estate, having due regard to timber lands, etc. — 21 — Erom this decree defendants alone pray an appeal, and the Chancellor, being of opinion that it was a proper case for the exercise of the discretion given him under § 3157 (T. & S.) of the Code, to award an appeal from an interlocutory decree fixing the rights of parties and ordering an account, granted the appeal. Appellants make no question here as to the action of the Chancellor in awarding year’s support and homestead. And they admit the widow’s right to have estimated, in assigning dower, the value of the lands sold by them since the death of the ancestor, amounting to some twenty-four or twenty-five thousand dollars. The objection urged and pressed upon the attention of this Court in the assignment of errors is, that the widow is not entitled to dower allotted as to lands held by her husband as a tenant in common with others; and that as to the mining lands the decree is erroneous, both because of the fact that the husband’s interest is that of tenant in common, and because the wife is given an interest in the rents and royalties resulting from the operation of the mines, the contention in this connection being that to allow her to reap the fruit of the mines is pro tanto a destruction of .the inheritance to the injury of the heirs. Rone of the objections are well taken. The Chancery Court has jurisdiction to allot dower, and, as incident thereto, to compel production of title papers, and the discovery of any mat — 22 — ters necessary to a proper ascertainment of tbe condition of tbe landed estate of tbe busband in tbe possession of tbe lieirs. M. & V. Code, § 5045; Story’s Eq. Jur., § 629n. By statute in this State tbe widow is entitled to dower in one-third part of all tbe lands of which her husband died seized and possessed, or of which be was equitable owner. Code, § 3244. And in assigning dower “tbe Commissioners shall not be compelled to assign a third part of each separate tract of land where there are more than one, but may make tlie assignment, according to quality and quantity, in such manner as will give her (the widow) one-third in value of the whole estate.” Code, § 3249. This is substantially what the Chancellor has directed in this case. The Commissioners are told that in assigning dower regard should be had to the value of the lands held by the husband as tenant in common. This was proper, for the reason that she could not have dower assigned by metes and bounds out of the property held as a tenant in common without or until there was a partition of the property so held, as is decided by this Court in Walker v. Walker, 6 Cold., 571-581, and if the record here, as there, disclosed that there was no other property •except such as was held in common with others, it would be proper to let allotment of dower await a partition which the widow might have made, if the heirs failed or neglected to do so, provided the — 23 — property was of a character that could he partitioned in kind without injury thereto, and if no partition could he had, the property might be sold, and the widow have her dower assigned out of the proceeds of her husband’s interest. See, in this connection, Code, § 3250. It seems, however, that in such case, if the widow should prefer it, she may have assigned to her one-third of the share of her husband, to hold in common with the heir and other tenants. Scrib. on Dower, Oh. IV., § 17, and cases there cited. Be this as it may, it is not necessary for the purposes of this case to decide. But in the case at bar there are a number of different tracts of land held in severalty, out of which dower can be assigned, and in making such assignment the Commissioners are told to take into consideration the value of the husband’s interest in the lands held by him as a tenant in common. Whatever might be said of the widow’s right to complain of this part of the decree, as to which it is not necessary nor proper to decide, because she does not appeal, it is quite clear that the heirs cannot object. Ror is there error in the decree giving the widow one-third of her husband’s share in the rents and royalties received from the several different mines leased to several different parties or corporations. The amount of the royalty fixed in the leases, and the share of the husband in the several pieces of land being made to appear, it is easy to arrive, — 24 — by a simple calculation, at tbe portion thereof that should be assigned to the widow. Indeed, under the facts of this case it is the only practicable means of allotting dower with any degree of justice to the widow or to the heirs. The' long lease prevents the property from being partitioned so as to permit of an allottment by metes and bounds. Nor can the value of the husband’s interest be arrived at with any degree of accuracy so as to charge it upon other property held in severalty, out of which dower can be assigned. The value of the property upon which the mines are being worked is dependent entirely upon the quantity of coal or ore contained in them. There is proof tending to show that the mines are now nearly exhausted, although this fact cannot he known, but only arrived at from indications which are more or less deceptive. Nothing hut the continued working of the mines can disclose the quantity or quality of the minerals reposing in the bowels of the mountain, and the consequent value of the land. If estimated as of great value, and placed. upon other property, the heirs would be injured if the minerals should he soon exhausted, and vice versa. This being manifestly just, let us see if authority is wanting to sustain it. In 2 Scribner on Dower, Ch. IV., § 17, it is said, speaking of property indivisible in its nature, the widow must be content with a special endow25 meift. “ Tims, if the husband die seized of a mill, she may be endowed either of the third toll dish, or of a third of the profits, or of the entire mill every third month. So, if the property be a ferry, one-third of the profits, or the use of the'ferry for a third part of the time in alternate periods, should be set apart to the widow.” Citing several cases. See Hoby v. Hoby, 1 Vern., 218, and the leading case of Stoughton v. Leigh, 1 Taunt., 402. While there was some vacilation in the earlier English cases, the Courts of this country seem uniformly to allow dower in mining property, certainly in all cases where the mines had been opened in the life of the husband. See Coates v. Cheever, 1 Law, 460; Billings v. Taylor, 10 Pick., 460; Moore v. Rollins, 45 Maine, 493; Findlay v. Smith, 6 Munf., 134; Crouch v. Puryear, 1 Rand., 258; Hendrix v. McBeth, 61 Ind., 473; Lenfers v. Henke, 78 Ill., 405; Malone on Real Prop. Trials, pages 633-4; Rockwell v. Morgan, 13 New Jersey, 384. We hold, therefore, that dower is assignable to the widow in mines, quarries, and the like, and she may enjoy the same, either by an allotment by metes and bounds, or by a share of the rents and royalties where the mines or quarries were opened and operated in the life of the husband, whether the same be operated by the husband or by lessees paying rent or royalty on the yield. Aijd in determining the mode to be adopted in each particular case regard should be had always to the interest of the widow, and the widow is — 26 — entitled to an account with the heir for the rents and profits from the death of the husband. See Summers v. Donnell, 7 Heisk., 565; and Lewis v. James, 8 Hum., 537; London v. London, 1 Hum., 1. There is one other objection made to the decree which it may be proper to notice. It is this: that even if it be conceded that dower should be assigned in the manner directed by the decree, the Chancellor was in error in undertaking, in advance, to direct the Commissioners, being, as is claimed, an encroachment upon the discretion which the law reposes in the Commissioners. It is true that the Commissioners have a large discretion in the matter or manner of allotting dower, and ordinarily they should be left to its free exercise, subject to the power and duty of the Court to control their action upon the coming in of the report. But in a case of the character of the one at bar, where the record discloses a complicated state of affairs with reference to the condition of the property, and raising questions of dispute between the widow and heirs as to their relative rights, it is not only not reversible error, but it is eminently proper for the Court to settle in advance the rights of the parties, and to give instructions to the Commissioners which will tend to remove manifest difficulties and shorten the litigation, delay, and expense which would result from allowing the Commissioners to fall into error, and then correcting — 27 — the same by setting aside the report and recommitting the matter to the Commissioners for further action. Let the decree be affirmed at the cost of appellants, and cause remanded for further'proceedings thereunder.