Stevens v. Richardson , 6 H. & J. 156 ( 1824 )

Earle', j.

delivered the opinioti of the court. This iá an action of dower, and we are called on by the case to give a construction to the acts of assembly regulating the law of descents. A decision of ány. question arising on those acts of the legislature, deeply concerns the landed interest of the country, and is, in every view, of much importance. The one under consideration is peculiarly of this character. We have to decide upon the legal effect of aix election made by a husband, in right of his wife, to ■take the whole estate of her ancestor at the valuation set upon it by the coihmissioners', and pay to her bróthers and sisters their juát proportions of the value thereof in money; to determine in fact, whether such election vests in the husband the inheritance in fee in the lands elected to be taken, to the exclusion of his wife; and if it docs so vest, whether he is thereby clothed with the legal estate, or only acquires therein an equitable interest to be perfected by the payment of the purchase money, and a conveyance by deed from the commissioners.

These points are raised in a suit by the second wife of John Sievsns, who elected to take the lands and mills, set forth in her declaration, in right of his former wife. He died in the year 1814, possessed of those lands and mills, but without any other title to them than what he derived by election to take them in right of his first wife, not having fully paid the purchase money, nor obtained a deed for them from the commissioners.

Whether the husband is capable, by his election in right of his wife; to vest the inheritance in fee in the lands elected to be taken in himself, to the exclusion of his wife, is a question on which we cannot at this time permit ourselves to doubt, whatever might have been our sentiments on the point, if we had been invited to act upon it soon after the first act of descents in 1786. The capacity in the husband to do this has been fully recognized by the legislature of the state, by an act passed in the year 1802; and it is believed, that in numberless cases, before and .since that law, the courts of justice have every where sanctioned the principle, that the election by the husband, in right of his wife, to taka her ancestor’s lands at the valuation of the commissioners, vests in him an estate therein in fee. Considering that it would be of serious moment to the community to cast a shadeof doubt on this doctrine. i:, this late 'period, tisis court must decide, that such an election by the husband, in right of his wife, to take t’ne lands of her ancestor, according to their value as ascer • feined by the commissioners, followed up by bis passing bonds to the other heirs for the payment of their just proportions of the value thereof in money, agreeably to the acts of assembly on this subject, vests in him an estate in fee, in the whole land elected to be taken, and does not pass any interest whatsoever therein to his wife.

The further question to be inquired into is, whether the legal title to the land, elected to be taken, vests in the husband by. the election, or only an equitable interest, to become a legal estate on the payment of the purchase money, and obtaining a deed from the commissioners? We hold that every election, under the acts of descents, to take the whole estate of the ancestor at a valuation, and to pay the ether heirs their just proportions of the value in money, and passing bonds for the same, settles in the person electing the legal estate in fee in ihe lands elected by him to be taken; and in this respect we cannot perceive any difference between an election by a child of the -intestate, and an election by a husband in right of his wife, who was a child of the intestate, in either case, the electing party takes with his own free consent, and by his own act, as a purchaser, and does not, as was suggested, derive his title-by descent from the ancestor; and in both cases, the whole proceedings, from the petition to the election, become like a matter of record, which to future times may test their legal correctness. An election by the child or heir of the intestate has always been thought to pass the legal estate in fee, for it was not until the year 1820, that the legislature empowered the commissioners to convey to him. As to a husband electing in right of his wife, it is true the commissioners were authorised to convey to him the land, elected to be taken, at an earlier period.

The act of 1802, ch. 94, section 6, was enacted for this purpose, but it is to be observed, that this act has in this aspect only a retrospective operation, and from that time, until the year 1820, the commissioners acting under the descent laws, had no power to make any such conveyance to a husband.

The court then must entertain the opinion, that the elec» lion of John Stevens, - in right of his first wife, to take the Íánds>iri question, vested in'him, under the circumstances in which it was made, the legal estate in fee in the lands ¿nd mills- mentioned iri the plaintiff's declaration, and that she is- entitled to dower in the same. The judgment must be reversed, and- a procedendo awdrded.

Judgment üeversed, &c.