Thomas v. Simpson

Testator directed that the residue of his estate, except a house devised to his wife in addition to her dower, should descend in the manner directed by the law, when no ■will is made: — Held, that the widow cannot maintain an action of dower; for, if the property passed by descent, the will being inoperative, the exclusive jurisdiction is vested in the Orphans’ Court, the decedent having died seised and possessed; if it passed under the will, the widow is a purchaser, and ejectment is the proper remedy. Such an interest of the widow, whether under the intestate laws or as devisee, is the subject of levy and judicial sale under proceedings against her.

Error to the Court of Common Pleas of Centre county. May 27. This was an action of dower unde nihil habet, brought by Elizabeth Simpson, late Elizabeth Smith, widow of James Smith, deceased, the defendant in error and plaintiff below, against William A. Thomas, the'defendant below and plaintiff in error. James Smith, the former husband of the said Elizabeth, died seised, inter alia, of the tract of land in question, containing some four hundred acres, with a grist-mill, saw-mill, dwelling-house, &c., thereon erected, &c., in the year 1808, having first made his last will and testament, in and by which, he devised and directed in relation thereto as follows:— «As to the residue of my estate, my will is, that it descend in the same manner as by the law’s of this Commonwealth is directed, when no will is made; with this exception, I give and devise unto my beloved wife Elizabeth, the house in which I now live, together with the spring-house, garden, and lot of ground, now without fence, between my dwelling-house and mill, to be held by her until my son James arrives at the age of twenty-one, and this in addition to her dower.” James was the only child living at the decease of his father. William, a second son, was born some months after his father’s death. The widow intermarried with Michael T. Simpson, in 1810 or 1811. Simpson left her a few months after their marriage, and they never afterw’ards cohabited. She continued to occupy the dwelling-house, and to receive the rents, issues, and profits of the farm, mills, and houses, from the decease of James Smith until the year 1829 or 1830, when her sons, having first erected a house upon the premises for her accommodation, dispossessed her. In the year 1818, Mrs. Simpson having become indebted, Patton & Mitchell instituted suit against Michael T. Simpson, in the Court of Common Pleas of Huntingdon county, to No. 36, January Term, 1818, to recover the amount of their account for goods, &c., furnished Mrs. Simpson, in which judgment was entered by agreement, 29th October, 1822, for $267 65, to be a lien on the property of Michael T. Simpson, which he held in right of his wife only. By virtue of a writ of testatum fi. fa. issued on this judgment to Centre county, No. 78, November Term, 1822, and a writ of testatum venditioni exponas, No. 1, January Term, 1823, all the right, title, and interest of Michael T. Simpson in and to the plantation, mills, dwelling-house, &c., &c., above described, held in right of his wife Elizabeth, were seized, taken in execution, and on the 26th day of December, 1822, were sold for the sum of $800, to James Smith, to whom the sheriff, on the 28th day of August, 1823, having first acknowledged in open court, delivered a deed for the same. On the 4th day of June, 1832, William B. Smith, in pursuance of articles of agreement, dated 30th March, 1832, executed a deed to Franklin B. Smith, for the one moiety of the estate, in consideration of $8000, taking from the said Franklin, at the same time, a mortgage to secure the payment of a bond bearing even date, in the penalty of $4472 30, conditioned for the payment of $2236 15 to him upon the death of the said Elizabeth, and the accruing interest annually to the person legally entitled to receive the same. And on the 24th day of April, 1834, Franklin B. Smith conveyed the same to the said William A. Thomas. On the 31st day of July, 1833, James Smith sold, by articles of agreement, to Franklin B. Smith, the other moiety, (« except the life-estate of Michael T. Simpson, which is now owned by the said James Smith, and W'hich he does not design to convey, but to reserve the same and the interest thereon to himself; and except further, the dower of his mother Elizabeth Simpson, which may remain to her in the event of her surviving the said Michael T. Simpson,”) in consideration of $10,500, payable as follows, viz.: «To pay off all the judgments or liens that now exist against the said estate, amounting to about $5000 ; $3000 more thereof to remain in the said estate, it being the estimated value of the dower of Elizabeth Simpson,- and the curtesy of Michael T. Simpson, which now belongs to the said James Smith, during the life of the said Michael, to be secured by bond and mortgage at the execution of the deed; and the interest of the said $3000, amounting to the sum of $180 annually, to be paid to the said James Smith yearly, commencing at the date of these presents, or his heirs or assigns, during the life of the said Michael T. Simpson, Ihen to the said Elizabeth Simpson, if she should survive the said Michael; and on the decease of the said Michael and Elizabeth, then the said principal sum of $3000 to be paid to the said James Smith, his heirs or assigns; the residue of the said consideration money to be paid to the said James Smith, on the 1st day of April next ensuing the date hereof, at the execution of the deed.” “ The said Franklin B. Smith agrees to let Elizabeth Simpson, the mother of the said James, live in the house which she now occupies near the mill-race, during her life, or to receive the rents thereof.” Shortly after the execution of the above agreement, James Smith died, and on its being duly proved, his administrators afterwards, to wit, on the 29th day of April, 1834, made a deed in pursuance (hereof to William A. Thomas, taking from the said William A. Thomas, at the same time, a mortgage upon the premises, to Dr. John Harris, to secure the payment of a bond in $8000, conditioned for the payment of $3000 with interest, agreeably to the provisions of the above cited article of agreement. Michael T. Simpson and Elizabeth his wife brought their eject'ment against James Williams and others, tenants in possession of the property, to No. 85, November Term, 1833, in the court of Common Pleas of Centre county, which was, on the 8th day of June, 1837, discontinued by W. W. Potter, attorney for E. Simpson. Under proceedings, a divorce instituted by Elizabeth Simpson, against Michael T. Simpson, in the court of Common Pleas of Centre county, to No. 53, August Term, 1834, the said Elizabeth was, on the 28th day of August, 1834, divorced from the bonds of matrimony. On the 8th day of June, 1837, Elizabeth Simpson and William Thomas made the following statement, settlement, or agreement: “Amount of money reserved by articles of agreement, dated the 30th day of March, 1832, between Franklin B. Smith and William B. Smith, and mentioned in the bond and mortgage given by F. B. Smith to William B. Smith, the interest of which is to be paid Mrs. E. Simpson in lieu of dower — prout article, bond, and mortgage, $2236 15J. “ Amount of money reserved by bond of William Thomas to Dr. John Harris, and mortgage dated 29th April, 1834, in trust, &c., interest of which to be paid in lieu of dower, for purchase of James Smith’s interest, to Mrs. E. Simpson, $3000 00. “The interest of these two sums was paid and liquidated by F. B. Smith’s estate, with James Smith’s estate, up to the 1st of April, 1834, by report of referees, and the interest from the 1st April, 1834, to 28th August, 1834, is unsettled, and remains due from William Thomas to the party entitled to receive; Mrs. Simpson claiming to be that party. «Interest in lieu of dower, commencing on the 28th August, 1834, the date of the decree of divorce, E. Simpson against Michael T. Simpson, and due on the 28th August, 1835, one year, - $314 16 «Interest on this sum from 28th August, 1834, to 8th June, 1837, - -- -- -- 33 49 «Due do. do. 28th August, 1836, - - - - 314 16 «Interest on this sum up to 8th June, 1837, - - 14 65 «Due do. do. 28th August, 1837, - $314 16 «Deduct two months twenty days’ interest, - 4 00 310 16 $986 62 «Received, from William A. Thomas, nine hundred and eighty-six dollars and sixty-two cents, being the amount of .dower due me on the real estate of my deceased husband, James Smith, from the 28th August, 1834, to the 28th August, 1837, he having purchased the same from F. B. Smith, deceased, the alienee of James Smith and William B. Smith, my sons. Elizabeth Simpson. «Witness, B. Valentine, Wm. W. Potter.” The sum of $314 16 was annually paid by William A. Thomas to Elizabeth Simpson, up to the institution of this suit, and accepted by her in lieu of dower. Defendant offered in evidence a judgment entered by virtue of a warrant of attorney, on the 6th of November, 1822, to No. 34, August Term, 1822, in the court of Common Pleas of Centre county, at the suit of John Rankin, Franklin B. Smith, and John Mitchell, against James Smith, for the sum of $2779 22, in connection with proof, that the consideration of the judgment was adverse to the assumptions for Mrs. Smith, by James Smith. To the admission of this evidence, the plaintiffs objected; the court sustained the objection; and this was defendant’s first bill of exception. The defendant excepted to the charge of the court, and removed the record to this court by writ of error. Errors assigned: — 1. The court erred in rejectingthe evidence contained in defendant’s first bill of exception. 2. The court erred in charging the jury, that the seisin and death of James Smith, entitled the widow to claim dower in the lands described in the writ; in submitting to them to find the annual value of the estate, assess damages, &c., inasmuch as the action of dower was not maintainable under the circumstances of this case. 3. The court erred in instructing the jury, that no estate or interest whatever passed to James Smith under the sheriff’s sale; that the same was a nullity, and gave him no right whatever. 4. The court erred throughout in their construction of the paper writing signed by Elizabeth Simpson, under date of June 8, 1837, purporting to be a settlement between plaintiff and defendant; and particularly in instructing the jury, that Elizabeth Simpson was not precluded by that paper from claiming dower for the time during which she thereby acknowledged, that the interest on the sums secured had been paid by F. B. Smith’s estate to James Smith’s estate, although she then claimed no more than the interest accruing thereon from 1st April, 1834 to 28th August, 1834. 5. The court erred in their instruction to the- jury, that any payment which F. B. Smith made to the estate of James Smith, was a payment in fraud, or mistake of the widow’s rights, and no defence to this action. 6. The court erred in their instruction to the jury, on the subject of the statute of limitations. The evidence contained in the first bill of exceptions should have been received. Mrs. Simpson claimed damages against Mr. Thomas for the non-assignment of her dower, &c., from the year 1809, to the institution of this suit in 1843. The defendant was very properly permitted to show that the plaintiff had been in the possession of the whole estate, and had received the rents, issues, and profits thereof, without account, from the death of Mr. Smith, in 1808 or 1809, up to 1829 or 1830. And this the court held a conclusive bar to the claim for damages during that period. By the article of agreement of the 31st July, 1833, between James Smith and F. B. Smith, $5000 of the purchase money was to be applied in payment of the judgment, or liens against the estate, of which the judgment offered in evidence was one. Was it not competent for the alienee of the heir to show, that a large portion of the very purchase money received by the heir was applied in satisfaction of a judgment, the consideration of which was the debts and liabilities of the vridow assumed by the heir? — would not the advances and assumptions made by the heir go in satisfaction of her claim' for dower against the heir, during the time he remained in possession; and can the alienee of the heir be in a worse situation than the heir himself? Is not the damage of the widow, the annual value of the estate, less what she has received; and does it matter whether she has received from the hand of the heir or from the actual exclusive possession of the estate ? 2. But as James Smith expressly directed, in reference to the land described in the writ, “ that it descend in the same manner as by the laws of this Commonwealth is directed when no will is made,” he must, as to this land, be taken to have died intestate, and having also died seised, his widow was confined to the statutory remedy provided, and should have proceeded in the Orphan’s Court. The statute affording a remedy, the action of dower cannot be maintained. Act of 26th March, 1806, 4 Smith’s Laws, 332; Seider v. Seider, 5 Whart. 218; 1 Penn. Bl. 392. 3. If the widow took under the intestate laws, she had an interest which was the subject of levy and sale in Pennsylvania for her debts; and immediately on her marriage with Michael T. Simpson, he became seised in her right, was entitled to the profits during the marriage, could sell or charge it to the extent of his interest, which, during the continuance of the coverture, was coextensive with whatever interest she had. In England, a judgment is not a lien on an equitable estate. In Pennsylvania, it has been held to be a lien on every kind of equitable interest in land, on every kind of right vested in the debtor at the time of the judgment. And the whole right, interest or estate, whatever it may be, passes to the purchaser by a sheriff’s sale. Carkhuffv. Anderson, 3 Bin. 9; Humphreys v. Humphreys, 1 Yeates, 429; Hurst v. Lithgrow, 2 Yeates, 25, 1 Rawle, 162. It may be fairly argued, therefore, that in Pennsylvania, the widow’s right to dower, before assignment, is subject to levy and sale, and can thus be reached for her debts. Her interest under the intestate laws, however, is not dower, nor has it any of the incidents peculiar to dower before assignment. It is land, and is so denominated by the act. Under the general description of land, it passes to the purchaser at sheriff’s sale, even after valuation under proceedings in partition. Shaupe v. Shaupe, 12 Serg. & Rawle, 12. It is not at any time, whether before or after partition and valuation, a mere chose in action. The husband cannot control or dispose of it, to any greater extent than any other real estate of the wife. Miller v. Leidig, 3 Watts & Serg. 456. But suppose James Smith is held to have died testate as to the land described in the writ, did not the plaintiff take as devisee under the will; and, taking as devisee, is it not too clear for argument that her interest was subject to levy, and passed to James Smith under the sale ? 4. The statement and receipt of the 8th June, 1837, expressly refers to the articles of agreement, deeds, bonds and mortgages by which the heirs had sold the land described in the writ, by which a sum of money had been set apart, and the interest thereof secured to be paid annually in lieu of dower, &c., &c. These are all recognised, and made part of the statement. The disposition which had been made of the interest accrued before 1st April, 1834, is expressly stated, and being stated, we humbly conceive must have been assented to and approved. The interest accrued between 1st April, 1834, and 28th August, 1834, is claimed by Mrs. Simpson. From the 28th August, 1834, to 28th August, 1837, the interest is paid and receipted for by plaintiff in lieu of dower. This paper covers the whole ground now in controversy. Taken in connection with the discontinuance of the ejectment, brought to recover the possession of the land described in the writ by plaintiff’s attorney, on the same day and at the same time, it cannot be fairly construed to be any thing less than a full and entire settlement. 5. The payment made by F. B. Smith’s estate to James Smith’s estate, it is fair to infer, was made with Mrs. Simpson’s knowledge and consent. It is expressly recognised by her as satisfaction up to 1st April, 1834. The $344 16 is admitted to be a most liberal allowance in lieu of dower. Though the title of dower is consummate, the title of entry does not accrue until the ministerial act •of assignment. Park on Dower, chap. 16, p. 334, 2 Law Lib. This is an exception to the general right of entry. The title of dower is no more than a right .of action. Park on Dower, 135. A woman can never be entitled to her dower until actual assignment. Ibid. 336. If the wife have the possession of lands, of which she is dowable as guardian in socage, she shall be allowed the third part of the profits upon her account in the allowance of her dower in the mean time; •but she shall not endow herself. Ibid. 336. Her entry without ¡assignment is treated as an abatement. Ibid. 336. The reason of .denying any right of entry in the wife is, that she shall not carve for herself. Ibid. 336. A woman, who has obtained judgment for her ¡dower, must wait for an assignment before she can enter. Ibid. 337. As to interest of widow in land, he cited 2 Serg. and Rawle, 188; and, interest of a husband in a distributive share in a legacy, 6 Watts, 132. They are only choses in action, and never vest in the husband until he receive them. The rights of the husband only continue during the marriage. If he had the dower assigned and received the profits, so far it superseded, or took place of the rights of the wife. If the husband promised an assignment, entered and enjoyed, so far it abridged the rights of the wife. If he were promised an assignment, and never entered, the whole right of dower survived to the wife on his death, in the same manner as if he had never any right. The purchaser at sheriff’s sale is in no better condition. Until a widow’s dower be assigned, her right or interest in the land cannot be sold for her own debts, or those of her husband. He also cited 1 Whart. 813, 1 Yates, 425, 426, 11 Law Lib. 334, 152 top page, 2 Miles’s R. 281, and Byrne v. Yanhttseri, 5 Serg. & Rawle, 66.