Davidson v. Graves , 8 S.C. Eq. 268 ( 1831 )

O’Neall, J.,

delivered the opinion of the Court.

We concur with the Chancellor, that Mrs. Cleary is intitled to interest from the death of her former husband, Samuel Colleton Graves, on the amount of the stocks transferred to him on the faith of the marriage settlement, and which, by the appeal decree, was charged on the lands. And we likewise concur with him in relation to the Wain wright slaves.

We also concur with the Chancellor, that Mrs. Cleary is intitled to dower in the land conveyed by his father and mother to Samuel Colleton Graves, and that the allowance of this claim is not precluded by the former decree. But, notwithstanding, that we think she is intitled to dower, we do not think that she takes it, discharged from the incumbrances existing, actually, or constructively, at the time of the marriage. Her rights, arising from the marriage, cannot be in a greater estate than the estate which her husband then owned. His estate in the land was incumbered at the time of the marriage, with Vandersmissen’s mortgage, Hasell’s mortgage, and with the value of her stock, which has been considered, and allowed, as a charge on the land at the time of the marriage. His real estate, therefore, of which she was dowable, was its nett value, after the payment of these then existing incumbrances.

It is, therefore, ordered, and decreed, that it be referred to the master, to assess the dower of Mrs. Cleary, according to these principles. He will first, out of the proceeds of the sale of the land, satisfy Vandersmissen’s, and Hasell’s mortgages, and the amount of stock, with the interest thereon, charged on the land, and decreed to be paid to Mrs. Cleary ; and upon the residue of the proceeds, he will compute interest for seven years, and allow one third of the amount so ascertained, with interest on it, from the time when the sale of the land was due, for her dower, which he is directed to pay out of the proceeds of the sale of the land. In ot^el resPects» the decree of Chancellor Ee Saussube is affirmed.

Decree modified.