#### West & wife*, v*. The Devisees of Hatch.

From Craven.

A. being seised of lands in fee, devised a certain interest thereinto his widow, and the rest of his real estate he devised to B. *\t*the death of A. crops were growing on the lands devised to B. and by him were gathered. The widow dissented from the. will, and filed her bill against B. for her dower, and for an account of the profits of the lands, to he allotted to her for dower, from the death of the devisor. It being ascertained that the provision made for the widow, under tlie will, was not equal to the dower to which she would be entitled in case of the intestacy of her husband, her dower was allotted to her. But the Court refused to call B. the devisee, to an account for the profits, on the ground, that asm case of her husband dying intestate, the crop growing would belong to the administrator, and be assets to be distributed under the statute of distributions ; so she, ^having dissented from the will and claimed dower, the crops, growing, belonged to the executor, and constituted part of the personal estate, of which the widow was entitled to a distributive share.

This was a case agreed, sent to this Court from the Court of Equity for Craven county. The case stated that Lemuel Hatch, being seised in fee of lands, devised an interest therein to his widow, one of Complainants, and the residue of his real estate to Defendants. At the death of the devisor, there were crops growing upon the lands, devised to Defendants, which not being included in any other devise or bequest, were gathered by them. The widow dissented from the will, and filed this hill *149against the devisees for her dower, and for an account of the profits from the death of the devisor. It had been ascertained, by proceedings under the authority of the Court of Equity, that the provision made for the widow, under this will, was not equal to the dower to which she wgs entitled by law, and her legal dower had been allotted to her and she had been put in possession thereof. The case was referred to this Court to decide, whether the crops growing on the lands devised to Defendants at the death of the devisor, and gathered by them, were to be brought into tie account of profits of the land, for the benefit of *Complainant;*and if so, whether the said profits shall be subjected to such claim, in the hands of Defendants, or are to be considered personal property and to be included in the estimate of assets, of which the widow is entitled to a share, and to be paid by the executors from the assets in their hands ? Complainants admitted that there were assets of the devisor in the hands of the executors, more than the value of the said growing crops.

IIalu, Judge,

delivered the opinion of the Court:

We think the property, in question, is not to be considered profits of the dower lands for the exclusive benefit of the Complainants, but personal property, and to be included in the assets of which the widow is entitled to a share under the statute of distributions. As the widow thought proper to dissent from the will of her husband, (which the law permitted her to do;) and as she has had lands allotted to her for her dower, she can derive no greater benefit from those lands, than she could have done in case her husband had died *intestate;*in which case, the crops growing on the land would have gone to the administrator, and not to the heirs, and would have been considered part of the personal estate of the deceased, of which the widow would have been entitled to a distributive share. So in the present case, the crops are *150|0 t,e considered part of the personal estate of Lemuel Hatch, and consequently are to be brought into view by the executor in the settlement which shall take place un-the statute of distributions between him and the Complainants.