#### *John Den ex dem. of I. Miller *against*Hannah Miller. (a)

IN EJECTMENT.

THIS ejectment was brought by *Isaac Miller,*one of the heirs at law of *Aaron Miller,*deceased, to recover a part of the mansion-house and homestead plantation attached thereto, in the township of *Westfield,*in the county of *Essex.*It appeared, in evidence upon the trial, that *Aaron Miller*died seized of the premises in question; that he left six children by his first wife, to *wit,*four sons, Abraham, *Isaac,*(the lessor of the plaintiff) *Matthias*and *Aaron;*and two daughters, *to wit, Sarah,*wife of *Clark Miller,*and *Susannah,*who remained single ; that he had three children by the defendant, his second wife, and now his widow, all of whom are minors. The homestead consisted of a mansion-house and out-buildings, and about seventy acres of land ; and the defendant, the widow, had continued in the house and on the homestead plantation since the death of her husband. It appeared upon the trial, that a division of the real estate had been made among the heirs. After the division, an attempt was made to set off the widow’s dower by agreement, out of what was divided to the six children, by the first marriage, but was never done. A paper purporting to be an assignment of dower (prout the same) was given in evidence, and it was proved by one *William Miller,*that in *August*1814, he went to tender the same to the widow, but she would not accept it nor stay to hear it read. This writing was duly executed as .a deed, by *Isaac, Matthias, Sarah*and her husband, *Abraham*and *Susannah.*

It was proved, on the part of the defendant, that the part of the cellar mentioned in the assignment, as set-off *367to the widow, had been used by the lessor of the plaintiff since the assignment was executed and attempted to tendered to the widow ; that he put cider in it the winter after. It was proved that the assignment contained a third of the real estate, by metes and bounds, of which *Aaron Miller*died seized, in quantity and quality, in the opinion and belief of the witness, and also one third part of the buildings upon the said estate. There was no evidence upon the trial, that *Aaron Miller,*one of the heirs, had ever refused to execute the assignment, or that he had ever been applied to to ^execute it, but he had in his possession no part of what was assigned for dower. Upon the cause having rested, the defendant, by her counsel, moved the court for a nonsuit, upon the ground that the widow was entitled, under the statute of *New-Jersey,*to remain in and to hold and enjoy the mansion-house and the messuage or plantation thereto belonging, until her dower was assigned her. And the judge recommended to the parties to agree that a verdict be taken for the plaintiff, subject to the opinion of the court at bar; whore, if the court should be of opinion that the plaintiff was not entitled to recover, the verdict could be set aside and a nonsuit ordered.

A rule to shew cause why this verdict should not be set aside, &c. was granted. This rule was argued at this term by *Chetwood*for the defendant, and *Williamson*for the plaintiff.

*Chetwood*maintained, that the assignment was altogether invalid and inoperative.

1. Because a division among the heirs had taken place and the dower wras set off, not in a body, but in three parcels. 2. That all the heirs had not signed the instrument, and as they were not all bound, the widow was not. 3. That one of the grantors was a feme covert and had not acknowledged the deed, and the assignment ought to be absolute, without restriction or limitation. 1 *Oru.*164. 4. That the assignment of the buildings could not be sustained, being uncertain, as, “ one half of the garret at the west end, and one half of the cellar at the west end” also *“*one half of the barn next to the road.” *Pen. 709.*

*368*Williamson,*for plaintiff, argued.

1. That although after a division among the heirs, a.part of each lot could not legally be set off, yet it was sometimes necessary and proper to set off the dower in parcels, *viz.*when there was arable lands, meadow lands, &c., as was the case in this instance.

2 and 3. One third part was set-off, and as it contained none that had been divided off to Aaron, it was not necessary that he should unite in the assignment. One heir may assign in the name of the whole, otherwise in many cases there can be no assignment. Even an infant may assign, nor need it be in *writing;*the widow comes in by the estate of her husband, not by the deed. 2 *Bac.*363. *Viner Dow. T.*253.

4. Certainty to a common intent is sufficient. When part of a *room is to be assigned, it can be only such part, as one half, or one third, at such an end. There can be no other way. In *Pen.*709, the end merely, without reference to the proportion, is declared insufficient.

(a)

**See *Laird vs. Wilson, Pen. *281. Den, Halsey vs. Dodd, 1 Hal. 367. Ackerman vs. Shelp, 3 Hal. 125. Sip vs. Lawback, 2 Har. 442. Matter of Ann Garrison, 2 McC. 393. Osborn vs. Rogers, 4 C. E. Gr. 429. Macknet vs. Macknet, 9 C. E. Gr. 449. Lloyd vs. Conover, 1 Dutch. 47. Haulenbeck vs. Conkright, 8 C. E. Gr. 407. McLaughlin vs. McLaughlin, 7 C. E. Gr. 505. Woodruff vs. Brown, 2 Har. 246. Hopper vs. Hopper, 1 Zab. 543,*reversed on appeal, *2 Zab. 715. Bleecker vs. Hennion, 8 C. E. Gr. 123.*

By the Court.

Upon the case which has been presented, the plaintiff is entitled to judgment. Let the rule be discharged.