Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1866-05-16
Decision of the Supreme Court.

JUDeEs-SAM MLL1GAN, JAMES c. SHAcKELroRp
AND ALVIN HAWKINS
THOMAS q. CALDWELL, Attorney General snd Re.
porter.
NARY TARPLEYr rs r. p. CANA WEF qsH WIFE
and JAMES MCCULLOUGH, et a.
This is petition for dover by the widow of Jane,
Isrey de IN his life time guardian of his children
appropriated certain funds in his hands in the purchase
Of tract Of land containing lS5 acres bill was fled
70 enforce resulting trust; decree pronounced
the Chancery Court and by appeal taken this court
the trust declared and the cause remanded 10 the
Chsncey Court for account to ascertain the
OF money of the complainant had been invested in the
tract Of land Of 1S5 acres by the guardian.
Tarpley died, having made and published his last will
which was duly proven To this the petitioner dsscnted
A suggestion of insolvency made of the estate.
On the 3lst of may 1852 James Tarpley the husband
o petitoner, made and executed deed of trust Nc
Cuough, the defendant conveying the tract of land of
e5 scres ard the tract of twenty acres to
him in the payment of $780, and the value of slave
The tract Of one hundred and eghyve the
o which the complainant in the suit referred to- was de-
oared to have resulting The deed of trust was
daily registered sale of the land ordered by the
creditors An ction issued upon the filing of the
petition, TO restrain the sale of ths lands until the
matters Of this petition heard The petitioner asks
70 be endowed of onethrd Of the tract of twenty
acres and OF such interest as may be decreed Of the 1s5
acres after that portion may be assigned under the
decree of this court declaring resulting trust A
decree pronounced by the chancellor giving her dow
in the real estate of her husband in the lands
has appealed to this court.
Ie question presented for determination of the court
s whether widow whose husband has executed deed
Of trust his creditors which has been uy
stered in his life tme and not sold can have dover
specifically assigned her in the lands conveyed By the
common law the widow is entitled one-thrd of all the
lands Of which the husband seized during coverture.
This right commences with the marriage and terminates
upon the death of the husband By the act Of 1884 the
right Of the widow restricted to ali the lands which
the husband died. seized and possessed Subsequent acts
we're passed extending the right of dover equitable in
:erests The courts have always given broad and lib
sra construction to the statutes giving the right f dow
II is right old the common law and that has
been cherished BY the legislature and courts.
II Is recognized claim superior to creditors and
al others who did not have specific lien upon the land
Dover is preferred the claims of creditors who have
obtained Judgement against the husband in his life time
and had their executions levied the lands. ANY at
tempt on the part of the husband defeat it is audu
lent and void to her mortgage or deed Of trust ex
uted by the husband previous the passage of the act
Of 1886, ch 81, defeated her of dower-5 Hump. 20
Hump, 7lo.
These decisions induced the Legislature to pass the act
Of 1856 That act provided when the husband died be-
fore the mortgage forecosed sale of land under
the deed Of trust made the widow should be endoT-
ed out OF the land This is carried into the CODE Sec
1899 By section 239S of the code, if any person die
ntestae leaving widow, she shall be entitled dover
IN onethird of all the lands Of which her husband died
seized and possessed of which he was the equitable
owner By the act of1s2 widows were entitled 10 dover
out Of the equitable of which the husband was the
oWnoI dt l0lS act
in this section Section 2,599 provides she shall be ent
ued to dover in lands mortgaged conveyed 10 pay
debts when the husband dies before foreclosure of the
mortgage sale under the trust deed.
If it the intention ef the Legislature to give her
dover only in the surplus after the payment of the debts
secured in the deed this section can have no meaning
The previous section gives her the right of dover in equ
able estates.
The decisions Of this ccurt IN the case of Gieer ct Al
Hump and VIM. Gieer vs. Cherry, S Hump hold
deed Of trust or mortgage defeated the widows DOVER or
that she woud be preferred 10 the creditors secured The
act OF 1885, en- So giving the widow the right Of dover
in mortgages and deeds when the same were not
closed in the husbands life tme the provisions of that
act being carried into the CODE section Sg9cau leave
no doubt 1t was the intention of the law to endow her of
al lands which had been morgGged by the husband or
conveyed 10 secure debts when the had been
foreclosed or sale made under the deed Her claims are
paramount TO the creditors secured, aod will be enforced
The section Of the code is plain and not ambiguous
and expresses clearly the object Of the legislature 10 was
extend this ancient and cherished Of dover TO mort
cages snd lands conveyed in trust to pay debts The
petitioner is entitled TO dover in the
acres and TO that portion of the S5 acres that NAV be
decreed in the settlement of the ease in which the result
ing trust declared by this court and which had been
conveyed by her husband defendant in the pay
hent Of his debts.
The will be remanded to the Chancery Court at
Murreesboro for the assignment OF DOVER upon ascer
anng the quantity of land to which the husband
titled Of the tract Of ls5 acres and for the assignment Of
dover on the tTentyeght acre tract There being
ror in the decree, il is affirmed
sHACKLEFoRD, Judge. |
Attest: J. G. FRAZER, Clerk