Chancery.

#### Brewer *against*Vanarsdale’s Heirs.

[Mr. Owsley and' Mr. Cunningham for plaintilf: Mr. Daveiss for defendants.]

From, the Circuit Court for Mercer County.

*April*12.

A widow is entitled to dower in land which her husband held under an executory contract, altho the purchase money was not all paid by him. Heirs are entitled to land to which their ancestor had only an equitable right; and if the purchase money remains unpaid, they may pay it, or may insist on its being paid by the personal rep. *205so far as he has available assets. And—

*204Chief Justice Robertson

delivered the Opinion of the Court.

Daniel A. Brewer, who was the acting administrator of Simon Varnarsdale, deceased, and the guardian of his children, brings this writ of error for the purpose of reversing several decrees obtained -against him, by his late wards, the defendants in error, on a bill and sundry crossbills, filed by them, for a settlement of his accounts as administrator and guardian.

Though the decrees are distributive, and therefore several in effect, yet as they all depend chiefly on the same facts and principles, and the objections to one generally apply to the others, they will be considered by this Court asoné joint decree. And, in our opinion, several of the objections urged against the entire decree, are mantainable.

*205Whenever the heirs are entitled to the land, the widow is entitled to dower, on equitable terms. A man died possessed of a tract of land, which was sold by order of court, and most of the proceeds applied to pay a balance due upon the land: *held*that, in the residue of the proceeds of the sale, after the land was paid for out of it, the widow had a dower interest; and the *value*of one third of that residue *for her*life, considering her age, should have been paid to her, in absolute right.— But a full third having been paid to her, upon her giving bond with security, that it should be refunded, to go to the heirs, at her death, this court does not disturb that arrangem’nt, which seems to be beneficial to the heirs, and serious inconvenience might result from changing it.

Where land o'f a deedent was *206sold, *by*order of court, upon the petition of the guardian of the heirs, and their ancestor’s vendor was not made party to the petition, and yet the legal title was conveyed by a commissioner who made the sale, the' presumption is, that the ancestor was vested with the legal title- — the widow entitled to the use of a third for life; and, she having consented to the sale,to the use of a third of the proceeds for life. See the petition and response, *post. p.*208, &c.

*205
      *First'.*The Circuit Court refused to allow any credit for an advance made by the administrator to the surviving widow of the intestate,'on account of dower which she claimed in a tract of land to which he was entitled at his death, and which had been sold under a judicial order made on the application of his children’s guardian. A portion of the price for which the intestate had bought the land, not having been paid at the time of his death, and the guardian having paid it out of the proceeds of the sale made under the order of Court, the widow received, on account of her claim to dower, one third bf the residue, and gave her bond with security for refunding it at her death. But the Circuit Judge, assuming that the title of the inféstate was only equitable, and that such an interest unpaid for did not entitle his widow to dower, therefore charged the plaintiff, as guardian, with the whole amount for which he had sold the land: and in this there was, as it seems to us, manifest error.

Had the title of the intestate appeared to have been equitable only, we are of the opinion that, if the heirs were entitled to a specific execution, the widow was entitled to dower. It does not appear that any thing but the payment of the entire consideration could have been necessary, to make their equity perfect, and that payment they might have compelled the administrator to make, as far as he had available assets. To entitle a widow to dower in an equitable estáte, it is not indispensable that her husband should have been entirely unindebted for it. If, at his death, his equity was available, his heirs and widow had a right to obtain the legal title by paying whatever remained due. Whenever the heirs are entitled by descent, the. widow may have dower, on equitable terms.

But there is nothing in the record tending, in the remotest degree, to show that the intestate’s title was not perfect. -On the contrary, as his vendor was not made a party to the petition filed by the guardian, for selling the land, and as a complete title seems to have been sold under the order made by the Court, on that petition, and a conveyance, as we infer, was made to the *206purchaser by the commissioner who sold, we must presume that the intestate’s title was legal and complete. And according to this deduction, which is the only judicial one, the widow was undoubtedly entitled, during-her life, to one third of the land. And, as she seems to have acquiesced in the sale of the land, she was equitably entitled to an interest in the proceeds of sale. That interest, under the circumstances of this case, should be one third for life of the nett avails of the sale, after paying what remained due for it, at her husband’s death.

The adm'r is entitled to credit, for a payment to the widow, of the money rec’d by him, for rent of the farm, before dower was allotted to her. Land of a decedent was sold by order of court —the proceeds to be applied to the payment of a debt, & distribution among the widow and heirs; the sale was on credit, for *par*money; but a depreciated currency was received by the def t, who was adm'r and guardian: though the currency was rec’d by him, in *207good faith' — as he hacl no authority to receive it, he is accountable for the full amount, as so muchmoney;but some of the heirs having rec’d *the*same of him, after they came of age, voluntarily, are presumed to have received it understandingly, and having acquiesced in that settlement for several years, it shall not be disturbed; their former guardian is entitled to ci'edit for the sums paid them, without reduction for the depreciation. — Those who have not received their shares, are entitled to the full amount in lawful money,which their guardian might have coerced.

*206As it would be difficult to secure, beyond contingency, the restitution of her third at. her death, it -would be safer, as well as more consonant with chancery -practice, to allot to her absolutely the Walue of her interest, to be ascertained by estimating the probable duration of her life. But the derangements and inconveniences that might now result from such a reallotment, should induce a ratification by the Court, of what the parties themselves had done, in a mode certainly as advantageous to the heirs and distributees, if they be secured in the restitution, at her death, of the principal sum she has received for use during her life, by a refunding bond with unquestionable security, to be given by the plaintiff in error and approved by the Circuit Court, or by an assignment of the bond he holds on the widow, if that be deemed good.

*Second.*The Circuit Court erred in charging the plaintiff with one thousand seventy dollars and fifty eight cents — instead of nine hundred seventy dollars and fifty eight cents — on account of the personal estate supposed to have remained in his hands, after deducting one third which he had paid to the widow, as the .distributive share to which she seemed to be entitled on-the assumed hypotheses that the proceeds of the sale of the land should alone be charged with the debt due for it at the intestate’s death.

*Third.*The widow being entitled to the use of the farm until the sale thereof, (her dower never having been allotted,) there was error also in rejecting the plaintiff’s claim to a credit for a payment to her, of rent received for the use of the land whilst she had a right to enjoy it.

*207A distributee is notconcludedby a receipt, exonerating his guardian-given soon after the ward came of age, and without a full knowledge of the facts.

An allowance for the services of an adm’r and ward, made by the county court, should not be induced, in a subsequent suit in *208ch’y for a settlement, without suflicent proof that the allowance was exorbitant.

*207
      *Fourth.*The plaintiff having, in good faith, as we should presume, collected the price of the land in the ■depreciated paper of the Bank of the Commonwealth, and made payments in the like paper, at its nominal value, to two of his former wards, to wit: Abraham Yanarsdale and Stagg’s wife, the Circuit Judge erred, as we think, in refusing a credit on account of those payments, for any greatér amount than the value of the bank notes in specie at the time when the payment was made. For, presuming, as we must do, that A. Yanarsdale and Stagg voluntarily and understandingly received the bank notes at their nominal value, they should not now be permitted to disavow their deliberate act so far waiving objection to conduct of their guardian, and the more especially as they have seemed to acquiesce for several years.

But, though the plaintiff may have acted in perfect good faith in accepting depreciated bank notes in discharge of the debt due for the land, yet, as the sale was for par money, and there is no evidence showing, or even tending to show, that he could not have coerced the payment of such money, he must be considered as having taken a less value without authority, and at his peril; and, so far as the distributees have not received payment voluntarily in the kind of money which he erroneously collected, they should not be required to take less than the value which it was his duty to collect.

And we are, moreover, of the opinion, that the Circuit Court was right in deciding that neither A. Vanarsdale nor Stagg should be concluded by the receipt which each of them had given, but a short time after their wardships ceased, and without a proper knowledge of all the material facts, exonerating their guardian from all further liability in consideration of payments to them of only a part of what each was entitled to receive.

*Fifth.*The County Court having allowed the plaintiff, in his twofold character of guardian and administrator, two hundred and fifty dollars, for his trouble and expenses ; and there being, in our opinion, no satisfactory or sufficient proof that he was not justly entitled to so much, or that the County Court had transcended the *208limits of a sound discretion in allowing that sum, the Circuit Court erred, as we think, in reducing that allowance. The credit allowed by the County Court should stand.

*April*20.

The foregoing are, in the judgment of this Court, the only errors for which the decree of the Circuit Court should be reversed.

It was not erroneous to refuse a credit for the fifty dollars claimed on account of an alleged payment for subsistence for the widow and children. That item was neither claimed by the plaintiff’s answer, nor properly established even by proof.

Nor was there any error in charging the plaintiff with the amount for which the land was sold; for, though he was not the commissioner who sold and should have collected it, nevertheless he is estopped by his own acts on record, to deny that he had received it and held it as guardian.

Wherefore the decree of the Circuit Court is reversed, and the cause remanded for such decree as shall be proper and consistent with the foregoing opinion.

Petition for a Re-hearing.

The counsel for and on behalf of the defendants, respectfully present the following grounds for a re-hearing of this cause, or a. modification of the opinion.

It is admitted by the answers of Brewer and White-neck and wife, that the tract of land was heavily incumbered at the time of Simon Vanarsdale’s death, on account of the purchase money not having been paid. The amount due upon the land, seems to be, as appears in the settlement of Brewer with the County Court, one thousand six hundred and eighty seven dollars sixty cents, without interest. The land sold for two thousand four hundred dollars, in three equal annual instalments.— Consequently, more than two thirds of the proceeds of the land had to be applied to the payment of the purchase money, or else the proceeds of the personal estate must have been so applied; which.would have been in*209sufficient to have discharged the same, and in that event-, the widow would have had no-éstate beyond her interest in the proceeds of the real estate. To obviate this difficulty, the Court below decreed that the proceeds of the sale .of the real estate should be applied to the payment of the balance of the purchase money, giving to the widow, in lieu of dower, one third of the proceeds of the personal estate, after the payment of the ordinary debts, amounting to four hundred and eighty three dollars seventy eight cents.

This Court, by their opinion, has decided that the widow was entitled to' dower in the land, or one third of the net avails of the sale of the land, during her life, without making any suggestion in relation to the four hundred and eighty three dollars seventy eight cents which she' has received from the personal estate, by virtue of the decree below, which is now final by the lapse of time, unless now corrected.

As to the allowance to Brewer, as administrator and guardian, the decree below shows two sums as allowed him-^-the one for eighty five dollars, as administrator, the other for the sum of one hundred and twenty dollars, as guardian; which is five per cent, upon the moneys by him received and disbursed. , It is again submitted to the Court, whether the allowance ought to be increased beyond that sum, unless there was evidence of extraordinary trouble and expense.

The counsel would here add that, if the guardian had made his annual return, as required by law, so as to turn the interest into principal, it would have increased the -amount due said heirs very far beyond what they will otherwise receive.

It is admittéd by the Court, that the .land was sold for par money; consequently the heirs were entitled to the same kind of money from their guárdian, who it is presumed, had a full knowledge of what was justly due them. A payment, then, by him, in a depreciated currency, much less valuable than that which they were legally entitled to, ought to be regarded, in the opinion of the counsel, as constituting a legal *fraud*upon his wards; But, in the absence of any proof showing that *210they had a knowledge of their rights, will the mere circumstance of their receiving depreciated paper, authorize a presumption that they done so freely and voluntarily, with a full knowledge of their rights? Nothing could be more easy than to practice a deception by their guardian saying to them, he had received it, in part of their estate, without at the same time informing them he 'had received that which he was not bound to receive.-

The counsel presumes that this Court intends to direct the inferior court to make.such decree as an inspection of the record will justify. With that view, they will respectfully call the attention of the Court to an item of two hundred and fifty dollars contained in the deposition of Cornelius Covert: (see record, page 106.) It is there stated that deponent’s father owed the estate of Simon Vanarsdale the sum of two hundred and fifty dollars, which Daniel A. Brewer received in the year 1819, by deponent giving him a credit upon one of the notes which he held upon the estate of said Simon Vanarsdale, as part of the price of the land which had been purchased by said Vanarsdale, and afterwards sold by Brewer. This sum was never accounted for by Brewer, nor was it noticed -or allowed in the decree of the Court below; but for which the defendants in error now ask the decree of this Court.

The counsel submit to the Court the propriety of either re-hearing the cause, or modifying their decree, as they may choose themselves.

Samuel Daveiss, .

*A tty. for Bef'ts in Error.*

*Note.*— Whiteneck and Wife are defendants in the writ of error, as well as in the inferior Court, and have not asked a reversal of the decree below. The counsel would respectfully ask the Court, if it is proper to modify the decree of the inferior court (in their favor) further than to do justice to Brewer? Ifid this Court intend that the widow (now Mrs. Whiteñeck,) should receive all the rent of the land previous to the sale, or only so much thereof, as Brewer had paid her, and which the Court below disallowed?

Samuel Daveiss.

*211
      *April*26.

Response.

1. The opinion and mandate show clearly that the widow’s interest in the proceeds of the sale of the land, should be only the use for life, of one third of the sum remaining after deducting from t-he gross amount of sale, what had been paid out of it for the land; and therefore,, there seems to be no necessity for any modification for the purpose of making the 'opinion more specific.

2. As no reason was shown for surcharging or falsifying the allowance made by the County Court to Brewer, as administrator and guardian, we still adhere to the opinion thafthe reduction of that allowance by the Circuit Court was unauthorized and erroneous.

3. As the guardian had, in good faith, received^Commonwealth paper for the land, and Stagg and Vanarsdale had therefore received the like paper from- him, at its nominal value, we still feel well satisfied that, as to that payment, there being no ground for presuming fraud, ignorance or delusion, there should be no reclamation, or charge.

4. The note for two hundred and fifty dollars, mentioned in the petition, having been, as we infer from the record, charged against Brewer, both in the County Coui’t settlement and by the decree of the Circuit Court,, he was certainly entitled to a credit for the wholeamountiie paid for the land, and it would not be right to charge him again with that two hundred and fifty dollars. Moreover, no claim is made in the record, to any further account or settlement as to that item.

Wherefore the petition for' a rehearing is overruled»