#### *Catharine B. Gibson*vs. *Louisa F. Marshall.*

Bill by the widow, in the occupation of the premises, against a purchaser after the death of the husband, with notice of the widow’s claim, for an assignment or assessment of plaintiff’s dower in a lot in the city of Charleston. The Commissioners certified that the lot could “bo fairly and justly divided, having regard to the true and fair value ” thereof; and they assigned to the plaintiff the houses and most of the highland, leaving to the defendant a much larger portion, of market value equivalent to her interest, but yielding no rent. It was referred to the Master to take evidence and report upon the facts connected with the assignment, and upon his report of the evidence, the Chancellor on circuit confirmed the return: — On appeal, the circuit decision was sustained.

*Before*Dunicin, Oh., *at*Charleston, February, 1853.

Upon the report of the Master, in obedience to the order of reference made *by*his Honor Chancellor Dargan, at July sittings, 1852, (5 Rich. Eq. 259) the cause was now heard.

Dunkin, Ch. On the 2nd March, 1852, Chancellor Johnston set aside the writ for admeasurement of demandant’s dower for irregularity in the form of the writ. The Act of Assembly directs that the Commissioners shall, fairly and impartially, according to the best of their judgment, admeasure and mete out to the petitioner, and put her in full and peaceable possession, of one-third part of the premises; but it is provided that *“*the Commissioners shall have power, and they are thereby authorized, in the admeasurement aforesaid, to have relation and regard to the true value of the lands in question: and when the same can not be fairly and equally divided, without manifest disadvantage, then *to*assess a certain sum in money, in lieu of the dower, to be paid,” &c. The writ first issued did not set forth this authority of the Commissioners, if they should be of opinion that, having relation and regard to the true value of the lands in question, they could not be fairly and equally divided. The Commissioners had set out the dower by metes and bounds: but the Court refused to confirm the return and set aside the writ, because the mandate thereof “ did not leave the Commissioners at liberty to perform their whole duty.” A *211new writ was accordingly issued in conformity with the opinion of the Court thus declared, directed to five Commissioners, two to be named by each of the parties, and the fifth by the Master. There were two lots out of which dower was to be admea-sured, to wit: one at the corner of Smith and Franklin streets, and the other on Smith-street near Calhoun. On the former lot the Commissioners set out the dower by metes and bounds, being of opinion, as they state, in their return, that it could be fairly and justly divided ; the other lot, they were of opinion, could not be fairly divided, and they assessed a sum in lieu thereof. In reference to the latter lot, the return had the unanimous concurrence of the Commissioners. Four out of five agreed as to the lot at the corner of Smith and Franklin streets: the fifth Commissioner dissented as to this lot, “ thinking the same cannot be fairly divided.”

On the filing of this return a motion was made, at the instance of the defendant, for an inquiry before the Master as to so much of the return as related to the lot in Franklin-street. The testimony has been accordingly reported by the Master; and the inquiry now is, whether, upon that testimony, the return of the Commissioners should be set aside. In the course of the argument much was urged in reference to the situation of the parties. In the solution of the question submitted, these circumstances should have no influence upon the judgment of the Court. The demandant is the widow of the testator. The defendant purchased the lot from the executors with the express notice that the demandant would insist on her right of dower. The objections to the return of the Commissioners must be considered precisely as if 'William C. Gatewood, or any other stranger, had purchased the lot from the executors, and the de-mandant had obtained her writ for admeasurement of dower. The Commissioners are selected by the parties themselves and by the Court. No question is suggested as to the intelligence or impartiality of the board thus constituted in this case. Their duty was “ to admeasure and mete out to the demandant, and put her in full and peaceable possession of one-third part ” of the *212premises described in the writ; but if, having relation and regard to the true value of the land in question, they should be of opinion that the same could not be fairly and equally divided, without manifest disadvantage, then to assess a certain sum in lieu of dower, &c. The Commissioners were well instructed by the previous action of the Court both as to their duty and authority. Thus instructed, they have discharged the gratuitous office thus imposed upon them and have certified their proceedings. It is, in some measure, due to them, as well as to the parties, that their return should be sustained and confirmed, unless the Court is well satisfied that their judgment is erroneous.

Several witnesses were examined before the Master besides the Commissioners. The discrepancy in their testimony is more in appearance than reality. The great preponderance of evidence is that, according to the market value of the entire lot, the Commissioners have allotted no more than one-third to the demandant. This is substantially the evidence of Abram Jones, a witness well acquainted with the premises, and who was adduced on behalf of the defendant. And this is the distinct conclusion of the several witnesses sworn for the demandant. If'W. C. Gatewood, Philip J. Porcher or T. A. Whitney, had been the purchaser at the executor’s sale and occupied the position of the defendant, this evidence would be entirely conclusive against the objection to the return, He would have purchased with explicit notice that the dowress was entitled to one-third of the premises during her natural. life, and intended to insist on her right. It appears from the pleadings that, at the death of her husband, (the late Colonel Gibson,) the demandant was residing on the premises. The Commissioners, by their return, have left her in possession, certifying their opinion, that the lot could be fairly divided, having regard to the true value thereof, and that only one-third in value had been set off to the demand-ant, to be held during her life. If a third person then had been the purchaser, and the market value of the portion allotted to the widow was fifteen hundred dollars, and that of the remain*213der of the lot was three thousand dollars, what ground of objection could be urged to the return ? It is difficult to say that any witness impeaches the judgment of the Commissioners as to the relative market value. Certainly it is sustained by a decided preponderance of the evidence.

In admeasurement of dower to the widow in premises of which the husband has died seized and possessed, assessment is only an alternative in the event that the lands cannot be fairly and equally divided, having relation and regard to the true value thereof. If, in this instance, a third person had purchased from the executors, and the Commissioners had declined to set oif the dower by metes and bounds, the Court would have some difficulty, on the evidence now submitted, to resist the claim of the widow to a review of such judgment. But the Commissioners, in accordance with the mandate of the writ, have allotted to the widow, and left her in full and peaceable possession, of what, on their oaths, they declare to be only one-third part of the premises, according to the best of their judgment.

It is ordered and decreed that the return of the Commissioners be, in all respects, confirmed and made the judgment of the Court.

The defendant appealed, and now moved this Court to reverse the decree, on the grounds:

1. Because the decree of Chancellor Dunkin, confirming the Commissioners’ return made in this case, was erroneous, being opposed to the intention and provision of the Act of Assembly, which expressly enacts that in the admeasurement of dower, the Commissioners shall have relation and regard to the true value of the lands in question, and when they cannot be fairly and equally divided without manifest disadvantage, then they shall assess a sum of money, to be paid to the widow in lieu of her dower.

*2.*Because the decree was otherwise contrary to Equity.

Phillips, for appellant.

*Campbell,*contra.

*214The opinion of the Court was delivered by

Wardlaw, Ch.

In this case the Commissioners, to whom a writ was directed for the assignment or assessment of the plaintiff’s dower, in a lot in this city, with instructions conforming to the Act of 1786, (4 Stat. 742), have made a return, in which they certify their opinion to the Court that the lot “can be fairly and justly divided, having regard to the true and fair value of the same,” and they assign specifically to the plaintiff the houses and most of the high land of the lot, leaving to the owner of the fee, the defendant, a much larger portion, of market value equivalent to her interest, but yielding no rent. The defendant objected to the confirmation of this return, and at her instance it was referred to one of the Masters to take evidence and report apon the facts connected with this assignment. Upon the Master’s report of the evidence, the Chancellor confirmed the return; and the appeal is from this decree of confirmation.

The defendant insists, that the specific assignment to the widow for dower of the whole improved portion of the lot yielding rent is to her “manifest disadvantage,” “having relation and regard to the true and real value of the lands in question,” and therefore contrary to the provisions of the Act of 1786. I suppose the term “ manifest disadvantage ” in this Act may well receive the legislative interpretation of them given in the Act of 1791, (5 Stat. 162,) adopting explicitly the procedure provided in the previous Act for a different subject, the partition of the estates of intestates; and may be well construed to mean “ without manifest injury .to the parties interested or some or one of them.” The Act of 1786 does not in terms refer- to the *Court*of Equity, but long *before the Act*this Court had jurisdiction as to dower, and commonly issued commissions to particular persons for its assignment. In England dower is always specifically assigned, and by the Act of 1721 this Court is directed to conform to the usages and practices of the Court in South-Britain. In this State, however, before the Act of 1786, this Court was accustomed to commute dower into its value in *215money, and to ascertain this value on report of its proper officer, the Master: since the Act we have commonly substituted the agency of Commissioners for the Master. Whatever may be the agency, it is the Court that assigns or assesses dower. It is true that the Act does'not authorize assessment of dower until the Commissioners have determined that there cannot be specific assignment of dower, and provides that a specific assignment shall be binding and conclusive on the parties in interest. Still these general terms as to conclusiveness could not have been intended to oust or limit the judgment of the Court in supervising the acts of persons under its commission. *Payne*vs. *Payne,*Dud. Eq. 124; *Beaty*vs. Hearst, 1 McMul. 31; *Gibson*vs. *Marshall,*(5 Rich. Eq. 254.)

The objection suggested by the defendant would have great, perhaps irresistable force, if she were in the condition of an heir or alienee of the husband, in possession of the premises. However highly favored may be the claim of dower, sometimes absurdly classed with life and liberty, it would be an outrage to eject a party in possession from his home in favor of the widow. But here the defendant purchased after the death of the husband, with full notice of the claim of the dowress, who was in the occupation of the premises; and there is no proof that she' purchased with the view of habitation on the premises. It is clear upon the evidence that the portion left for her is equivalent in market value to her share, and is steadily appreciating. If she bought for the sake of investment of funds, and a different conclusion cannot be drawn from the evidence, full justice has been done to her. It is proved that she is poor, and without the means of filling up and building upon the portion left for her; but it is not proved that she bought with this purpose. If any specific assignment can be sustained in the case, she certainly has a right inferior to the widow to the possession of the habitable portion. Under all the circumstances of the case, we find no sufficient cause for overruling the judgment of the Commissioners and the Chancellor as to the assignment of dower to this plaintiff.

*216It is ordered and decreed that the appeal be dismissed, and the decree affirmed.

Johnston and Dunkin, CC., concurred.

Cargan, Ch., absent at the hearing.

*Appeal dismissed.*