Worcester v. Clark , 2 Grant 84 ( 1853 )

The opinion of the court was delivered by

Woodward, J.

— On the general principles long recognized in Pennsylvania, that lands are assets for payment of debts, and that dower is barred by a sheriff’s sale, in virtue of either a judgment or mortgage, executed by the husband alone, I should have no difficulty in holding, that a sale in pursuance of a decree iñ bankruptcy would also bar dower, were it not for the third proviso to the 2d section of the Act of Congress, of 19th August, 1841, establishing an uniform system of bankruptcy. That proviso is in these words : “ that nothing in this act contained, shall be construed to annul, destroy, or impair any lawful rights of- married women or minors, or any liens, mortgages, or other securities on property, real or personal, which may be valid by the laws of the States, respectively, and which are not inconsistent with the provisions of the 2d and 5th sections of this act.”

The question on this record is, whether a married woman’s interest in her husband’s lands is saved by this proviso ? Whether it is a “ lawful right, valid by the laws” of this State, within the meaning of the Act of Congress ?

At common law, marriage, seisin and death of the husband were necessary to the consummation of dower ; but the husband need not die seised, for the wife’s right having vested on the marriage, overreaches alienation by him. Seisin, in law or fact, by the husband, any time during coverture, vests in the wife a right to dower. The right a dowress has to her dower, said the master of the rolls, in Lord Dudley’s case, Prec. in Chanc. 244, is not only a legal right, so adjudged at law, but is a moral right to be provided for, and to have a maintenance and sustenance out of her husband’s estate, to live upon; she is therefore, in the care of the law; and upon this moral law, is the law of England founded, as to the right of dower. So, by M‘Kean, Ch. J"., in Kennedy v. Nedrow, 1 Dal. 418, dower is a legal, an equitable, and a moral right. It is favored in a high degree by law, and next to life and liberty, held sacred. Again by Shippen, P. J., in Graff v. Smith, 1 Dal. 484, a widow’s right of dower commences with her marriage; it is held so sacred a right, that no judgment, recognizance, mortgage, or any other incumbrance whatever, made by the husband after the marriage, .can, at common law, affect her right of dower. Even the king’s debt cannot affect her. The only modification of these principles that we have suffered, is in treating the rights of creditors as paramount, and permitting them, through a judicial sale, to bar dower ; a policy which has been often questioned, and which is not to extended beyond established limits. No assignment or transfer by the husband, even for the payment of debts, and though madeX in the quasi-judicial proceedings of insolvent debtors, hap-feeji permitted to defeat the widow. Keller v. Michael, 2 Yeates, 300; Eberle v. Fisher, 1 H. 526.

Such, is the right of dower in Pennsylvania, and I cannot doubt that it is one of the “ lawful rights of married women," which congress had in view in enacting the proviso in question. There is nothing in the 2d or 5th sections of the bankrupt law, nor in any other section, inconsistent with the exemption of the widow’s right of dower, from an assignee’s sale; and seeing that it falls within the very terms of exemption, which the legislature have been pleased to employ, it follows as a clear duty of the judiciary, to protect this sacred right against unintentional sacrifice. It is not more clear, that any rights which minors may chance to have, or any liens which are valid by our laws, survive a sale of lands by an assignee in bankruptcy, than it is, that a widow’s dower outlasts it. It is vain to urge the analogies of sheriff’s sales, or the policy of selling unencumbered titles, when the widow’s rights are vested in a positive statute; the very statute under which the assignee’s sale was made. She must have the measure of protection, even as against her husband’s creditors, which the statute gives her.

And now to wit: the 15th day of December, 1853, this cause came on to be heard, and was argued by counsel, and upon consideration by the court it is ordered and adjudged, that the judgment of the Court of Common Pleas, in the case stated, rendered, be reversed, annulled and set aside, and that judgment be entered here for the plaintiff in said case stated, for costs and damages in the satisfaction of her dower in the premises mentioned and described, in said case stated, whereof her husband, David Worcester, was lawfully seised in his life-time; and that the record be remitted to the Common Pleas of Beaver county, with instructions to said court to issue a writ of inquiry for the assessment of said damages, and to proceed therein according to law.