#### *Catherine Gibson*vs. *Louisa F.*Marshall, *T. L. Rogers, and others.*

A writ fpr the admeasurement oí dower, issued from the Court of Equity, should direct the commissioners *to*make an assignment of dower, or an assessment in lieu of it, (in the alternative,) according to the provisions of the Act of 1786.

The return of commissioners in dower, like the report of the Master, is under the control of the Court: it is intended to satisfy the conscience and judicial discretion of the Chancellor; and though neither corruption nor misfoasanee on the part of the commissioners he charged, the Court may, on *ex parte*affidavits, showing error or mistake, refuse to confirm the return, and refer it to the Master, to take evidence and report upon the facts.

The late William Gibson, jun., died possessed of real and personal estate, which, by his last will, he devised to his three children, and to the defendant, Louisa F. Marshall. He made no provision in his will for his widow, who is the complainant, and-at the time of his death was living with him and their children in one of his houses. Soon after his death, his exe-tors, under one of the provisions of the will, sold the real estate, subject to her claim 'of dower, (of which the purchasers had full notice,) and the defendants, Marshall and Rodgers, became the purchasers. This bill was filed by his widow, for an account *255of the rents, and for an admeasurement of her dower. Upon hearing of the case, at Charleston, September, 1851, before Dunkin, Ch., the following decree was made:

Dunkin, Ch. It is ordered and decreed, that a writ do issue for the admeasurement of complainant’s dower in the premises described in the pleadings, situate in Franklin-street and in Smith-street, respectively. That the writ be directed to Thos. D. Condy, David Lopez, C. C. Trumbo, M. McBride and Thos. Farr Capers, requiring them, or a majority of them, to execute the said writ, according* to the provisions of the Act of Assembly, in such case made and provided, and that they make a return of their proceedings in the premises, under their hands and seals, as therein directed, for the final judgment and determination of the Court.

The complainant, Catherine B. Gibson, appealed from so much of the decree as directed the Commissioners to execute the writ for the admeasurement of dower “ *according to the provisions of the Act of Assembly in such case made and*provided,” on the grounds:

1. Because the several Acts of Assembly, in relation to dower, merely give the doweress an additional process and remedy, if she chooses to accept their provisions, and file her petition in Common Pleas; but without that, do not deprive her of any right she previously had, of pursuing her remedy by writ of dower at common law, or by bill in this Court, in which case the admeasurement of dower is governed by the common law, and not by statute.

2. Because, having elected to proceed in this Court, she declines to accept the provisions of the statute law, and is entitled to have her dower admeasured accordingly, and cannot be compelled to accept a commutation in money under the statute, which she had the privilege of doing by petition in Common Pleas.

*256The case was not reached during the sitting of the Appeal Court in January, 1852. Pending the appeal, the plaintiff sued out a writ of dower, requiring the Commissioners to admeasure and assign one-third of the lands specifically to the plaintiff, for her dower, without any reference to the discretion of the Commissioners, under the Act, to assess a sum of money in lieu of dower, if, in their opinion, the lands could not be fairly divided without manifest disadvantage. For this defect, a motion was made by the defendants, at March sittings, 1852, that the writ be set aside. The motion was made before Johnston, Ch., who made the following order:

Johnston, Oh. The motion now made by the defendants stands upon a different footing from the one made a few days ago. Then it was moved that it be referred to one of the Masters, to take testimony, whether the conclusions to which the Commissioners in partition had come, were not unreasonable and unjust. The motion was refused, because it proposed to transfer the functions properly belonging to the Commissioners to the Master.

The present motion is to set aside the writ, for irregularities and imperfections upon its face, calculated to influence the return of the Commissioners.

The order of Chancellor Dunkin was, that a writ issue, for the admeasurement of the plaintiff's dower, *under the*statute.(a) The plaintiff, on that occasion, contended that she was entitled to have an actual assignment of her dower, at common law, and not such an assignment, or an assessment in lieu of it, (in the alternative,) under the statute; and an appeal was taken from the Chancellor’s order, because it directed the proceeding to be had under the statute.

The form adopted by the plaintiff, in issuing the writ of partition under the order, was such as to give her all the advantages she would have possessed, had the order been granted *257her for which she contended : or if her appeal had been heard and sustained : and I think the writ should be recalled, for this irregularity-.

The proper form of the writ presents a very important question of practice, because the Commissioners are required to take an oath to execute it, according to its mandates. If these be limited, so as to set forth but a part of their duties, the necessary consequence is, that they are compelled, by their very integrity, to fall short of their whole duty.

The form of this writ is such as to require the Commissioners to make ah actual admeasurement and assignment of the dowerl without more ; and by swearing to execute the writ, the Commissioners were made to bind and confine themselves to the specific act of admeasurement: and it may be, that their return of an actual assessment has followed from the limit thus set to their powers.

The form adopted, which is contrary to that which has ever prevailed under the statute, is sought to be justified by what appears to me to be a very narrow construction of its provisions. It is said that it *requires*a writ to be issued, *commanding*the Commissioners to *admeasure the dower, etc.,,*and ■ that the writ must go forth with that mandate alone. And that, although the statute proceeds to empower the Commissioners to assess a sum in lieu of dower, in case they cannot admeasure the latter without disadvantage to some of the parties, this power should not appear in the directions contained in the writ.

The necessity for the full power of the Commissioners (in the alternatives contemplated by the Act) being set forth, by way of directions, appears from the fact that the Commissioners are required to take an oath to execute the writ. If, as was argued, the Commissioners, though sworn to *admeasure*the dower, are at liberty to notice their power under the statute *not*to admeasure it, but to assess a sum as a compensation for it, this plainly amounts to this, that the Act contains a dispensation to them, absolving them from the only specific act, which, it is said, the writ can properly direct them to do, and which *258the statute specifically binds them by oath to do. This cannot be.

If the writ is intended to leave the Commissioners at liberty to perform their whole duty — if it is not intended to entrap and mislead them in the performance of it — let the writ go forth describing their duty to them. This can in no case do any harm; and it may in some cases obviate mistakes and injustice. The writ, as a matter of sound practice, should conform to the scope and true intention of the statute; and not be restricted to part of the duties it intends to authorize and require.

Such, as I have said before, is the form of writs of this description heretofore: and a departure from it should not be encouraged.

It is ordered, that a writ be framed by Mr. Tupper, one of the Masters, in conformity with this opinion; and issued to five Commissioners, two to be named by the plaintiff, two by the defendants claiming the land, and the fifth by said Master, requiring them, or a majority of them, to execute said writ. If either party, after notice, refuses or neglects to name Commissioners, the said Master to name them in his place.

It is further ordered, that the writ in partition, heretofore issued, be set aside.

The injunction, heretofore ordered, to be continued until further order. And as it appears that the plaintiff has a decree, entitling her to have her dower laid off and assessed, the security required for the said injunction, in the previous order, is limited to the amount of *damages*and costs recovered against the plaintiff at law.

In the order of Chancellor Johnstow all parties acquiesced.

The new writ thus directed was issued and executed. The Commissioners made their return, meting out and assigning the plaintiff’s dower in the lot in Franklin-street, and assessing a sum of money, in lieu of her dower, in the lot in Smith-street. As to the assessment in the latter lot, the parties were satisfied; but the defendant, Marshall, contested the return as to the lot *259in Franklin-street, and submitted affidavits, showing that the portion assigned to the plaintiff exceeded in value her interest, and embraced all the houses and improvements, and left a part of the- lot, covered by water and mud, for the defendant’s share. These affidavits, while they imputed no corrupt motive to the Commissioners, exhibited error of judgment, as to values, in distributing the lot.

Upon these affidavits, Chancellor DargaN, at July sittings, 1852, on motion of defendant, Marshall,

Ordered a reference to one of the Masters, to take evidence and report, whether the admeasurement made by the Commissioners, in assigning the plaintiff’s dower in the lot in Franklin-street, was not contrary to the Act of 1824, illegal and inequitable.

From this order the plaintiff also appealed, objecting to the reference to the Master on *ex parte*affidavits ; and further, that the affidavits impute *“*no malpractice or error of principle to the Commissioners,” and nothing beyond a mistake in valuation.

*Campbell,*for appellant.

*Phillips,*contra.

*Payne*vs. *Payne,*Dud. Eq. 127; *Brown*vs. *Duncan,*4 McC. 346; *Wright*vs. *Jennings,*1 Bail. 280; *Lesesne*vs. *Russell,*1 Bay, 459 ; *McCreary*vs. *Cloud,*2 Bail. 344; *Scott*vs. *Scott,*1 Bay, 506 ; *Hawkins*vs. *Hall,*2 Bay, 449 ; *Beaty*vs. *Hearst,*1 McM. 33 ; 1 Des. 110, 115; *Stock*vs. *Parker,*2 McC. Ch. 382; *Davidson*vs. *Graves,*Bail. Eq. 272; *Brown*vs. *Caldwell,*Sp. Eq. 322; and *Woodward*vs. *Woodward, 2*Rich. Eq. 23, were cited.

(a)

 4 Sfcat. 742.

The opinion of the Court was delivered by

Wardlaw, Ch.

[Who, after stating the facts, and the proceedings that had been had in the cause, proceeded as follows :J It is manifest from this statement, that as the plaintiff has elected to execute Chancellor Johnston’s decree, by issuing her writ in conformity thereto, and actually accepting a commutation *260for her dower as to the lot in Smith-street, she has little cause of complaint as to Chancellor Dunkin’s decretal order. Still she may technically insist upon her grounds of appeal from this order, so far as the lot in Franklin-street is involved. ‘

The question of procedure is important. The express enactments of the Act of 1786 provide merely a mode of obtaining dower, or its equivalent, in *the*Court of *Common*Pleas, and have no direct operation on the pre-existing and independent jurisdiction and remedies of this Court on the subject. It was the practice of this Court, before the Act of 1786, to compensate widows for dower by commutation in money. 1 Des. 110,115. The value of the dower in money was then ordinarily ascertained by the Master, on reference to him for the purpose : but since the Act of 1786, the Court has usually employed the instrumentality of commissioners provided by the Act, to ascertain this value. *Stock*vs. *Parker,*2 McC. Ch. 382. There is no reasonable objection to this adoption of new machinery, to complete an old remedy. On the contrary, there'is special propriety in making the procedure uniform in both Courts. The commissioners are not authorized by the Act to assess a sum of money in lieu of dower, until they have determined that the lands can not be fairly divided without manifest disadvantage. It is clear, that this Court, from the earliest epoch after its organization of which we have any report, pursued a procedure in execution of the principles of equity, different, in some respects, from that of like Courts in the country from which we derive most of our institutions: notwithstanding the Act of 1721 required this Court to conform generally to the usages and practices of the Court of Chancery in South Britain. In no other instance, perhaps, has our departure from the English practice been so great, as in this particular of commuting the share of a dowress, or of one entitled to partition, by sale of the premises or assessment, into its monied value, instead of making specific assignment. Our practice, however, is too inveterate and advantageous to be now disturbed.

The Act of 1791 authorizes the Court to sell the premises for *261partition, only in cases of intestacy, yet this Court is in the constant practice, departing from the procedure of the Court of Chancery in England, of effecting partition by sale in cases of testacy. *Pell*vs. *Ball,*1 Rich. Eq. 387. No Act of the Assembly prescribes the term for advertisement of the sales of estates made by this Court, yet we habitually conform to the requisitions of the Sheriff’s Act of 1839. It is ordered and decreed, that the appeal from Chancellor Dunkin’s decretal order be dismissed.

It remains to consider the appeal from Chancellor Dargan’s order, refusing to confirm the return of the commissioners, and directing a reference to the Master to take testimony as to the inequality and injustice of the specific assignment of plaintiff’s dower in the lot in Franldin-street, and to report upon the facts. We suppose that in this Court, since we have substituted commissioners for the Master as our agent to ascertain the value of dower in the premises, the return of the commissioners is under our supervision to the same extent as would be the report of the Master in such case. In *Payne*vs. Payne, Dud. Eq. 127, the Court says : “ The return of the commissioners must necessarily be under the control of the Court. There would be great defect of justice, if the Court had not the power of correcting their errors, irregularities or partialities.” Even in the Law Court, notwithstanding the Act of 1786 declares that the return shall be binding and conclusive upon the parties interested, it is decided, in *Beaty*vs. *Hearst,*1 McM. 33, that *“*there is no doubt that a Circuit Jüdge may withhold confirmation of such a return, either in dower, partition, or in any other proceeding, and allow further time, on such showing as satisfies him that there has been error or mistake, or any departure from established legal rules.” It is not necessary that there should be any corruption or misfeasance on the part of the commissioners: it is enough, to set aside their return, that they have mistaken the extent and value of the interests or shares of the parties concerned. Their return is intended to satisfy the conscience and judicial discretion of the Chancel*262lor, and any circumstance exhibiting error on their part may justify him-in refraining todo that which seems to'him to be inequitable. In the present case, we have not before us the particular affidavits upon which the Chancellor acted ; but we have no reason to doubt that his judicial discretion in the matter was judiciously exercised. It was an act of indulgence to the plaintiff, to refer it to the Master, to take evidence on the point of the return on both sides: whereas, the Chancellor might have proceeded to act definitively upon the *ex parte*testimony.

The form of the order in this case, probably prepared by counsel, is liable to some just exception. The'Act'of 1824 has no application to the case, as the land was not alienated by the husband of demandant during coverture. So, too, there is impropriety in the seeming delegation by the Chancellor to the Master, to judge of the legality and equity of the conduct of the commissioners, in assigning the plaintiff’s dower.

It is ordered, that the order of reference to Master Tupper, as to the assignment of dower to the plaintiff in the lot in Franklin-street,, be so modified as merely to require him to take evidence and report upon the facts as to such assignment. In all other respects the decrees are affirmed, and the appeals dismissed.

DtjnkiN and Dakgan, CC., concprred.

Johnston, Ch., absent at the hearing.

*Appeals dismissed.*