Scott v. Wells

Gilfillan, C. J.

Ansel F. Scott died intestate, leaving the real estate in controversy, and this plaintiff, his widow, who was appointed administratrix of his estate. As such she filed in the Probate Court a petition representing that it was necessary to sell all the real estate of which the intestate died seised to pay the debts of the estate and expenses of administration, and praying for a license to sell the same. License was thereupon granted to sell “the interest of said estate as the same may appear in” the real estate in controversy, describing it. The sale was made, and, being confirmed, plaintiff executed to the purchaser the usual administrator’s deed, conveying “all the right, title, and interest of the estate of said Ansel F. Scott, deceased, in and to” the real estate, describing it. Defendant has succeeded to the interest of the purchaser. Plaintiff brings this action in partition, claiming that, notwithstanding the sale, she is the owner of the undivided one-third of the real estate, which the statute vests in the widow upon the death of her husband.

To state briefly the propositions upon which plaintiff’s counsel rest her claim, they are these: The undivided third of the real estate that goes to the widow is no part of the estate of the deceased, and is not covered by a petition for license to sell nor by a license to sell for payment of debts the “interest of the estate” in described lands; that to make a valid sale of the widow’s one- *277 third for payment of debts, “her interest and estate must be put directly in question in the petition, and be the subject of direct adjudication by the court, and the decree of the court must direct its sale, and to what extent it shall bear the burthen of the debts.” That is, as we understand it, the proceeding to procure a sale must be expressly against the widow’s third, as a separate interest or estate.

In various opinions in this court the estate which a widow takes in the lands of her deceased husband has been to some extent likened to dower. It has been said to be “in the nature of dower,” “an enlargement of dower,” etc. Such expressions are apt to be misleading. They suggest a likeness between things essentially dissimilar. The only particular in which common-law dower and the estate that now goes to the widow resemble each other is that the same person takes. In the attributes of the two estates, in their quantity and quality, they are entirely dissimilar. But it is immaterial — in this case, at any rate — -what the estate is called, whether an estate in dower or of inheritance, and how, as matter of theory, the widow takes, whether as doweress or as heir; for it passes to her “subject, in its just proportion, with the other real estate, to the payment of such debts of the deceased as are not paid from the personal estate.” Prob. Code, Laws 1889, ch. 46, § 64. The liability to the debts of the deceased must, of course, be enforced in the Probate Court, and in the administration upon his estate.

Upon the owner’s death the title to the real estate of which he dies seised vests at once in his widow and his heir or devisee; but it vests subject to the claims of administration, and to the extent that it is subject to such claims it is a part of the estate in the court for administration, if it be necessary to resort to it for the purpose. It may be called a “secondary fund,” the interest of the heir for payment of charges, debts, and legacies, and that of the widow for payment of debts. The administration may seriously diminish, and even exhaust altogether, the share that would otherwise go to the widow, the heir, or devisee. It would seem that any interest in real estate which may be appropriated and entirely used up in -administering a particular estate must be a part of that estate for the purpose of administration.

(Opinion published 56 N. W. Rep. 82S.) Application for reargument denied November 24, 1893.

All interests in the real estate subject to payment of debts are in proceedings for that purpose included in and covered by the words “the interest of said estate” in any described lands; therefore the petition and the license and the deed included the plaintiff’s interest.

When the different interests in the real estate are equally subject to the charges for which the sale is sought, there is no reason for severing them. Indeed, it must be evident that in such case the interests of all will be best served by selling the entire estate in the particular land.

Order affirmed.