#### *Eliza Woodward vs. Osmund Woodward, executor of William T. Woodward, deceased, and others.*

Where commissioners assess a sum of money in lieu of the widow’s dower in lands *of which her husband died seized,*she is entitled, in equity, in addition to the sum assessed, to one third of the mesne profits from the death of her husband until the return of the commissioners is confirmed; and to interest, on the sum assessed, from the time the return is confirmed, until the money is paid.

That the widow has been put to her election, whether to take dower or under her husband’s will, does not, of itself, affect her right to an account of the mesne profits from her husband’s death.

*Before*Johnson, Ch, *at Fairfield,*

*July,*1843.

*The Chancellor.*The complainant, and Wm. T. Woodward, the defendant’s testator, in contemplation of their marriage, entered into a contract, whereby the complainant conveyed and assigned to trustees one half of all her real and personal estate, estimated at about $30,000, in trust for her sole and separate *24use, and subject to her own control and disposition. The remaining one half of her said estate she grants, demises and assigns to the testator absolutely, which is expressed to be in consideration of the said intended marriage, and also in consideration of interests in the property of said William T. Woodward inchoate upon the consummation of said marriage. The marriage was had and solemnized, and the testator, by his last will and testament, devised to the complainant all the real estate which he acquired by his marriage with her, and thereby declared that the same, if accepted or received'by her, should be in satisfaction, lieu and bar of her dower in any other part or portion of his estate. The whole residue of his estate he devised and bequeathed to his children by a former marriage.

The complainant insists in her bill, that in virtue of the contract referred to, she is entitled, as the widow of testator, notwithstanding the will, to one third part of the estate of which he died seized and possessed, as if he had died intestate, and prays a writ of partition.

It is not pretended that there is, in this- or any other contract, (for there was no other) any express grant to the complainant, of any portion of the'testator’s estate, or any express covenant that she should be entitled tó any portion ol it on his death; but it is insisted, that a covenant that she should, on his death, be entitled, if she survived him, to the same proportion of his estate as she would be if he died intestate, will be implied from the recital in the grant made by her to the testator of one half of’her estate, that it was also in consideration of interest'in the property of said Wm. T. Woodward, inchoate on the consummation of said marriage.

The various provisions of this deed, and the appropriate terms in which they áre expressed, leave no doubt that it was prepared by some one who had some general knowledge of conveyancing, and it is altogether improbable that a covenant so important as to secure to the complainant one third part of all the estate of which the testator should die seized and possessed, would have been left to mere implication. Contracts are often implied where it is necessary to give effect to what is expressed, or where they necessarily arise out of it; but never in opposition to what is clearly expressed. The consideration of the inchoate right which the complainant would acquire in the property of the testator, by her marriage, was not necessary to give effect to the contract, because the marriage itself was a 'sufficient con*25sideration ; nor does a covenant that she should be entitled to one third part of his estate, in the event of her surviving him, necessarily arise out of it, but is in direct opposition. If it be conceded that the recital implies a grant of an inchoate right in the testator’s estate, the contract does not itself define what that right is, and the law must determine it. Now every one knows that the wife acquires no interest at all in the personal estate of her husband by the marriage — that he may dispose of it in. his life time, or by will. Dower in his real «state is all to which she is entitled by law, and that right is well expressed as inchoate, because it is dependant on her surviving him, and' that must have been intended, if indeed it was not altogether ‘ idle and useless, as I suppose it was, inasmuch as the law entitled her to dower,

The complainant will of course be entitled to elect whether she will take her dower, or the property devised to her by the will. And she prays in her bill, that in the event of her being obliged to elect, the defendants may discover . the quantity and value of the real estate whereof the .testator died seized, and of the real estate devised to her.

I would suppose that the means of ascertaining the quantity and value of the estates devised, were accessible to. the complainant ; and defendant has stated what he supposes the value of the other real estate. The complainant must therefore make her election from the information which she has, or may otherwise obtain.

It is ordered and decreed, that the ‘complainant do, on or' before the first day of January next, elect whether she will take dower in the real estates whereof the! testator was seized during the coverture, or the property devised to her by his will, before referred to ; and in the event of her electing to take dower, it is further ordered, that on her signifying the same, under her hand and seal, a writ do issue for admeasurement of her dower in the land and tenements described in thé pleadings, as lately belonging to the testator. And if she shall neglect to make such election within the time here limited, or shall .elect not to take dower, the bill be dismissed with costs.

On the 21st. November, 1843, the complainant signified her election to take dower ; whereupon a writ of admeasurement of dower was issued, to which the commissioners made the following return.

*lf*We, the undersigned, appointed commissioners to lay off to *26the complainant her dower in the lands of Wm. T. Woodward, her late husband, do hereby certify that in pursuance of the instructions to us given in the writ for admeasurement of her dower, we have been upon the lands mentioned in the proceedings, and after being sworn fairly and impartially to do our duty in the'premises, we return, that in our opinion the said lands cannot be divided so as to put the complainant in possession of one third part thereof, as her dower, without injury to some of the parties. We further certify, that according to a recent survey made in this case, by M. A. M. Leggo, defendants’ surveyor, the tract contains thirteen hundred and seventy-seven acres, and we have appraised the same at twelve dollars eighty cents per acre, and that we have assessed the sum of two thousand nine hundred and twenty dollars ninety-three cents, as the sum of money to be paid by the heirs of the said Wm. T. Woodward to the complainant, in satisfaction of her dower in the said lands. Given under our hands and seals, this third day of July, 1844.”

In November, 1844, the following order was, on motion of the complainant, granted by his Honor, Chancellor Harper, at chambers.

The commissioners appointed to admeasure and lay off the dower of the complainant in the lands mentioned in the bill, having made their return to this court, that in their opinion the lands cannot be divided so as to put the demandant in possession of one third part thereof for her dower, without injury to the parties, aud having returned the appraised value of the said lands to the court, and assessed the sum of two thousand nine hundred and twenty dollars ninety-three cents, to be paid by the defendants to the complainants, in satisfaction of her dower: It is ordered, that the said return be confirmed and made the decree of this court, and that the defendants do pay over the said sum to the complainant, with interest from the thirteenth day of May, eighteen hundred and forty-three, that being the time of filing the bill.

Defendants appealed, and moved the Court of Appeals to modify the above order in regard to the interest, upon the following grounds:

1. Because, under the circumstances of this case, and the decree of his Honor, Chancellor Johnson, the defendants are not liable to pay interest, but only the gross sum assessed by the commissioners.

*2.*Because, if the defendants are liable to pay any interest *27whatever, they are liable to be charged with interest only from the confirmation of the return of the commissioners.

3. In regard to the question of costs, defendants insist that, under the circumstances of the case, and the decree of his Honor Chancellor Johnson, the complainant is liable for costs, and not the defendants ; more especially as complainant never made her election until long after the decree, whether she would take dower, or under the will — and because every point in controversy between the parties was decided in favor of the defendants, and therefore they are entitled to tax their costs against the complainant.

*Me Doto ell,*for the defendants.

*McCall,*contra.

*Curia, per*Joi-iNsoN, Ch.

The principal question raised¿by the grounds of appeal is, whether the complainant is or is not entitled to interest on the sum assessed by the commissioners in lieu of her dower in the lands of which her husband died seized, and, if so, from what time it should be computed. At the common law, the widow was only entitled to recover dower in the land itself. No commutation was allowed, and being purely a real action, she could not recover damages or costs for the illegal detention. To remedy these evils, the statutes of Merton and Gloucester were enacted by the British Parliament, which gave her an action at law, in which, where the husband died seized, she was entitled to recover one third part of the value of the land from her husband’s death until she recovered judgment of seizin, compensation by way of damages for the loss she had sustained by the detention of it, and costs ; 1 Roper on Husb. and Wife, 439. And it seems that, afterwards, it became a much controverted question whether, having this remedy at law, she was entitled to come into this court for relief, which ended in establishing here a concurrent jurisdiction with the law court; 1 Story Eq. 576; *Curtis vs. Curtis, 2*Bro. Ch. R. 620; and, having no authority to assess damages, an account of mesne profits from the time of the death of the husband has been substituted, as most according with justice, and has been allowed. In this respect, our own statutes have made no alteration in the law, but have authorized the assessment of a sum of money as a substitute for dower, when, in the judgment of the commissioners appointed to admeasure and lay it off, the land itself cannot be divided without injury to some of the parties; and¿ *28even in these cases, the court directs an account of mesne profits, as furnishing the measure of remuneration to which the widow is entitled, instead of computing interest on the sum assessed. *Gordon vs. Stevens,*2 Hill Ch. R. 429. The question raised in the grounds of appeal is not therefore directly pertinent to the case. It is not interest, *eo*nomine, on the sum assessed, to which the complainant is entitled, but a share (one third,) of the mesne profits. There is. one case only in which interest is allowed on a sum of money assessed in lieu of dower, and that is provided for by the Act of the Legislature of 1824, which directs that, where the húsbánd has aliened- the land in his life time, and a sum of money is assessed for the widow’s dower, the value shall be assessed at the time of .alienation, and that interest should be computed on it; and the Act of 1825 provides that the interest shall be computed from the time the right of dower accrued; and the case of *Payne vs.*Payne, Dud. Eq. R. 124, in which interest was allowed, was decided upon the authority of these Acts.

It is said, in the argument, that the complainant’s right to interest, or mesne profits,; is concluded by the commissioners having assessed a gross sum in lieu of dowér.. Rut the writ for the admeasurement of dower conferred on them no authority to take an account of mesne profits, or to commute them for money, nor has the court any warrant in law *to*delegate such a power- to them; and, upon referring to the return, it will be seen that they do not assume it. The sum assessed is one sixth part of the fee simple value of the land, and is in exact conformity with the settled and long established rule by which the value of dower is ascertained without reference to interest or mesne profits. It has been insisted, too, (if I understood the counsel,) that the complaintant, having been put to her election, is not entitled to mesne profits, until she had elected and demanded her dower, and such seems to have been the rule at common law. 1 Roper on Husband and Wife, 444; Co. Lit. 32, b. and Mr. Roper, in his treatise on the rights of Husband and Wife, vol. 1. p. 453, refers to *Delver vs. Hunter,*Bunb. *57,*where the same rule was applied in chancery. But he questions, upon high authority, the authority of the book itself, and controverts, in his usual felicitous manner, and I think successfully, the doctrine of the case, and maintains that the Courts of Equity J in decreeing an accoünt for mesne profits, proceed without reference to any statute or positive rule of the common law, but upon the principle that the right of the widow to have her dower assigned to her immediate-*29]y on the death of her husband, draws after it the right to an account of the profits: that, in effect, the tenant in possession, by the receipt of the profits, incurs a debt, which in equity he ought to pay; and he further remarks that, in equity, the tenant may be regarded as her bailiff, and therefore answerable for her share of the profits. The circumstance, that the complainant was driven to elect between the legacy bequeathed to her and her right of dower, so far from detracting from the merits of her claim to an account, adds additional force to it. It was a difficulty thrown in her way without any agency of her own, and she was not bound to elect, until -it was removed by a discovery of the quantity and value of the real estate of which the testator died seized. She filed her bill to obtain that discovery before the next sitting of the court after his death, so that no unnecessary delay or negligence is imputable to her. 1 am of opinion, therefore, that the complainant is entitled to an account of the profits from the death of the testator until the time when the return of the commissioners was confirmed; and it is ordered and decreed that the defendant, Osmund Woodward, do account before the commissioner of the court for the rents and profits of the real estate of the testator, in which dower has been assessed for the complainant, from the time of his (the testator’s) death to the time the return of the commissioners was confirmed; and that the said defendant do pay to complainant interest on the sum assessed from that time until the money shall be paid. We do not think it a case for costs: — each party must pay their own.

Harree, and Dunkin, CO. concurred.

JoriNSTON, Oh. gave no opinion, being related to some of the parties.