Ralston v. Ralston ( 1852 )

Opinion by

Kinney, J.

Louisa M. Ralston filed a petition claiming one hundred and fifty dollars, and stating as the cause of such claim that-her husband, Robert Ralston, died on the 19th day of October, 1851, seized, in fee simple, of certain lands; and that a certain piece of land embracing the homestead, was on the 12th day of March, 1852, set off, and confirmed to her as her dower. That on the land so set off, there was growing a large crop of wheat; and that subsequently the said defendants entered upon the said land, and cut and harvested there from the wheat, &e. The answer of the defendants admit all the averments contained in the petition, but state that the wheat was sown in the life time of said Robert, and growing on said land at the time of his decease, and that Mathew Ralston was appointed executor of the estate of said Robert, and that as such executor he had a right to enter upon the land and harvest and carry away said wheat. To this answer there was a replication, and to the replication a demurrer; and the decision of the court sustaining the demurrer is assigned as error. The record presents only one question: is the widow, or the executor, entitled to the wheat. It will be observed that the admeasurement of the land, and confirmation by which the dower was set off to the widow, took place before the wheat was harvested. By the Code, it is provided “that one-third in value of all the real estate owned by the husband during coverture, except such as lias been sold on execution or other judicial sale, and to wbicb the wife has made no relinquishment of her rights, shall he set apart by the executor as her property in fee simple, if she survive her husband.” § 1294.

In lieu of a life estate as formerly, the widow by virtue of this section, is entitled to one-third of all of the real estate in fee. Does the fee of which she becomes the sole owner, carry with it the growing crops, or do they as at common law pass to the executor for the payment of the debts? It is well settled now by the authorities, that if A sells a farm to B, on which there are growing emblements, and does not make a special reservation of such emblements, that they pass with the title to B. Upon like analogy when the dower of the widow was set apart to her and the proceedings in relation thereto confirmed, she became the absolute owner in fee to the quantity of land so set apart, entitled to its free, full and perfect enjoyment. The Code has defined the words “ real estate by making them include lands, tenements and hereditaments, and all rights thereto, and interests therein, equitable as well as legal.” § 26. The growing wheat was an interest which belonged to the soil; it was an interest embraced in tbe phrase “ real estate,” and as much belonged to the widow as the owner of the real estate. Although the fee had been conveyed to her by deed without any reservation of the growing crops. By the definition given to these words by the legislature, the growing emblements, being an interest in the land, they would pass with the land by "sale conveying the real estate, or by will, or by operation of law, as perfectly as any fixture or appurtenance belonging to the land. Judgment sustain, ing the demurrer reversed and the cause remanded for trial.

Geo. B. Wright and H. B. Hendershoit, for appellants* -á. Hall and Jas. Baker, for appellees.

Judgment reversed.