#### *Grayson and Wife v. Moncure.*

October, 1829.

(Absent Bbooke, P.)

Dower — Right of Widow to Enjoy Mansion HouseQuaere. — As to the extent of a widow’s rights to enjoy the mansion house, messuage and plantation, free of rent till dower assigned, under the Virginia Statute of Dower, 1 E. C. ch. 107, § 2,p. 403.

Same — Same—Case at Bar. — But, where a widow obtain a decree against an infant heir, directing commissioners to assign dower, which she might have had executed immediately, but did not for a year, during which she remained in the mansion house, and consented to the cultivation of the land by the agent of the heir; and after her dower was assigned, received one-third of the rents of the messuage and plantation thereto belonging, accrued before dower assigned, claiming no more at the time; and subsequently brought her action to recover the other two-thirds of the rents: Held, she was not entitled to recover them.

Grayson and wife brought assumpsit against Moncure, in the circuit court of Stafford for *money*had and received by him to the use of the wife when sole. Mon-cure pleaded the general issue. The parties agreed the facts of the case.

Mrs. Grayson’s first husband, Cary Selden, late of Stafford, died late in 1822, intestate, leaving an infant daughter (about a *month,*old) his sole heir, and seized and possessed of a tract of 2123 acres of land, on which his dwelling or mansion house stood, and that tract of land was the plantation belonging to the mansion. Administration of Selden’s estate was granted to Moncure, who, in that character, took possession of all the personal property. At the time of Selden’s death, there was growing on the lard a crop of wheat and hay, which was reaped in the summer of 1823; and in the spring of 1823 there was a crop of oats sown, which was also reaped in the summer of that year. These crops were made and gathered by the united force of the slaves, horses &c. of the estate, under the direction of the administrator; and he sold the crops, and accounted for and paid the widow one-third of the nett proceeds before her second marriage. The widow exhibited her bill against the infant heir, in the county court of Stafford, in chancery, at March term 1823, praying a decree for her dower; the infant *defendant by a guardian ad litem appointed by the court, immediately put in her answer and the court forthwith made a decree, directing commissioners to lay off and assign to the widow her dower, and to take an account of the rents and profits of the land since the husband’s death, one-third of which the decree adjudged to the widow. But the widow’s dower was not assigned to her, in pursuance of the decree, till March 1824. Meanwhile, she continued to reside at the mansion house. In maturing, reaping and carrying the crops to market, and disposing of them, Moncure acted as administrator of Selden, and agent of his infant heir, and with the assent of the widow previously given. She now contended, that she was entitled to all the profits of the land accruing in the year 1823 previous to the actual assignment of her dower to her. Moncure, on behalf of the infant, insisted, that she was entitled to only the third part thereof, which she had received in full.

The jury found a verdict for Grayson and. wife for 814 dollars, subject to the opinion of the court upon the case agreed. The court held, that the law upon the case agreed was for the defendant, and gave judgment, for him; from which Grayson and wife appealed to this court.

The cause was argued here, by Harrison for the appellants, and Conway Robinson for the appellee.

The argument turned chiefly on the general question, whether a widow is entitled not only to occupy in the mansion house, but to take all the rents of the messuage or plantation- thereto belonging, until her dower be in fact'assigned to her, by force of the provision in the Virginia statute of dower, 1 Rev. Code, ch. 107, § 2, p. 403.* But, *in the view of the court, it was not necessary to decide that point; the case, in its judgment, turning-on the peculiar circumstances of it; namely, the tender infancy of the heir; the assent of the widow to the employment by the administrator of the slaves &c. of the estate,, in finishing the crops; and, especially, the fact that the widow as early as March 1823-had obtained a regular decree for her dower, which it was in her power to have carried into immediate execution.

Robinson insisted, that it was the widow’sown fault, that her dower was not assigned to her till March 1824; that she could not complain of the infant heir failing to do-that which she had the power to have had done when she pleased; and that this was conclusive against the claim of the widow in the present case.

Harrison, on the other hand, contended that it was the duty of the heir, to assign the widow’s dower, in all events: the widow has a right to remain passive; the intermediate profits are given by the statute, to *161quicken the heir in discharge of the duty he owes the widow; and its provisions are plain and general, that till dower be assigned her, the widow may occupy the messuage and plantation belonging to the mansion house, without being chargeable to pay the heir any rent for the same.

*

The principal case is cited in Simmons v. Lyles, 32 Gratt. 759. See monographic *note*on “Dower” appended to Davis v. Davis. 25 Gratt. 587.

*

The first section of the statute provides that the widow shall be iudowed of one third of her deceased husband’s lands. The second section is in these words: “And till such dower shall be assigned, it shall be lawful for her to remain and continue in the mansion house, and the messuage or plantation thereto belonging, without being chargeable to pay the heir any rent for the same; any law, usage, or custom to the contrary in any wise notwithstanding.” — Note in Original Edition.

CARR, J.

The general question, whether a widow is entitled to all the rents, issues and profits of the mansion house and plantation thereto belonging, from Ihe death of her husband, until dower shall be assigned to her, is a very important one, and with us, so far as I can find, new. I should, therefore, if it were necessary to decide it in this cause, regret that we have but a bare court. But I do not think such necessity exists. The parties themselves have settled the matter; and upon principles which, under the peculiar circumstances of this case, seem so just, that I feel no disposition to disturb them.

The heir, it will be remembered, was only a month old when her father died.

Her mother was her natural guardian: *no other has been appointed. How, then, could dower be assigned her? The infant could not do it: and her mother must either, as guardian, have assigned dower to herself (of which the books shew us instances) or she must have applied to a court of equity to have it assigned. She chose the latter course. Her bill was filed three or four months after her husband’s death, and might have been filed at the first court of the county; and when filed, the whole business might have been done at once. It was all matter of consent: the bill, answer and decree, were all entered at the same court. The commissioners might have assigned the dower the next day. In that decretal order, made at her instance, the court directs the commissioners to ascertain the issues and profits of the land, and decide that a third shall be paid to her in respect of her dower. But this trouble she saved the commissioners, by arranging the whole matter of profits with the administrator, Moncure. To this conduct in regard to the employment of the slaves &c. on the land, in making and perfecting the crops, and carrying them to market, she gave her assent; and this agreement between them was made early in the year 1823, probably at the commencement of it. She remained in the mansion house. The crops were, under the agreement, disposed of in the latter part of that year: she was paid her share : and thus the whole contract executed. It was probably a very judicious and convenient arrangement for her: at any rate it was one which she had a right to make. It was the settlement of a doubtful claim, which is a good consideration. She got a third, which was all she would have gotten, if dower had been assigned her the day after her husband’s death, and it might have been so assigned her if she had chosen. She was the natural guardian of her child; and was the only person who could move in the business. She managed it all her own way, and seems to have been well content until after her second marriage, when this suit was brought. I think the judgment must be affirmed.

The other judges concurred.