Syllabus-Statement-Opinion.

had ratified the deed of 1845, when free from the disability of infancy, and without assigning dower, but reserving right to make all orders to protect the right of dower, decreed the sale of the whole tract to pay her husband's debts. On appeal here—

HELD:

1. The decree of sale without previous assignment of dower, in kind, if practicable, or if impracticable, by compensation, was premature and erroneous.

2. The record discloses no act done by the widow to affirm the deed of 1845, made during her infancy.

3

Within a short period after she came of age, and was relieved of the disability of coverture, she disaffirmed her deed made during infancy, and thereby rendered it void.

4. The trust deed of 1876 having been made during her coverture, cannot be regarded as affirming the deed made in infancy.

5. The trust debt, however, having been acknowledged in the mode prescribed by law for married women, is binding upon the widow to the extent of the debt therein secured, and no further.

Appeal of Mrs. Bettie Wilson, widow of B. R. Wilson, deceased, from a decree rendered 17th March, 1880, in a chancery suit then pending in the circuit court of Greensville county, wherein W. J. Branch, surviving partner of himself and C. R. Bishop, late partners in the name of Bishop & Branch and others are plaintiffs, and the said Mrs. Wilson, D. R. Newsome, administrator with the will annexed of B. R. Wilson, deceased, W. S. Goodwyn, trustee, and others are defendants. The facts and points raised are fully indicated in the syllabus, and set forth in the opinion of the court.

Collier & Budd, for the appellant.

George S. Bernard, Donnan & Hamilton, and W. H. Briggs, for the appellees.

LACY, J., delivered the opinion of the court.

On the 9th September, 1845, B. R. Wilson, and Bettie Wilson, his wife, conveyed the maiden land of the wife to George Goodrum, who immediately thereafter reconveyed the same to

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the husband, the said B. R. Wilson, which maiden land of the wife consisted of one undivided half of a tract of land called Cedar Lawn, situated in the county of Greensville. At the time of this conveyance, the wife, Bettie Wilson, was an infant, being then in her twentieth year.

On the 29th day of February, 1876, the said B. R. Wilson and Bettie, his wife, conveyed the whole Cedar Lawn tract of land to W. S. Goodwyn, trustee, to secure a bond of $1,463.85, due from the said B. R. Wilson to R. J. Lundy on the 29th day of February, 1880. The said B. R. Wilson and Bettie, his wife, continued to live upon and enjoy and use the said Cedar Lawn. tract of land until the death of the said B. R. Wilson, which occurred October 27th, 1877. One-half this Cedar Lawn tract of land was the maiden property of Mrs. Wilson. The other half was acquired by purchase by the said B. R. Wilson.

At the December term of the county court, 1878, of the county of Greensville, the will of B. R. Wilson was admitted to record, in which the said Bettie Wilson was named as executrix; but the said Bettie Wilson on that day declined to take upon herself the burthen of the trust imposed by the will.

At the following March rules, W. J. Branch, surviving partner of himself and C. R. Bishop, of the late firm of Bishop & Branch, on behalf of themselves and all other lien creditors of B. R. Wilson, deceased, instituted suit against the parties interested to settle the estate of the said B. R. Wilson, and subject the same to payment of the debts of the said B. R. Wilson. In April following Mrs. Bettie Wilson answered, and renounced all benefits of the provisions made for her by her husband's will, and disaffirming the deed of 1845, by which during her infancy she had parted with her title to an undivided moiety in the Cedar Lawn tract of land to George Goodrum. Her renunciation is as follows: "I, Bettie Wilson, widow of B. R. Wilson, deceased, do hereby renounce the benefit of the provisions made for me by the last will and testament of the said B. R. Wilson, deceased, admitted to probate in the county court of the county of

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Greensville at its December term, 1878, and do hereby claim my rights at law in the estate of my said husband. Witness my hand and seal, this 23d day of April, 1879." Acknowledged on the same day, and admitted to record May 2d, 1879.

The allegations of the answer were according to the facts set forth already that she was married in 1844, in her nineteenth year; conveyed her land by deed to Goodrum in 1845, when she was an infant; continued in the coverture until 1877, when her coverture was terminated by the death of her husband; that being an infant when she executed the deed to Goodrum the act was voidable, and that she then disaffirmed the same; that she had done no subsequent act to confirm the deed made in infancy; that within four months from the day when her husband's will was admitted to probate she had renounced the same.

Under the will she was to take the entire estate for life, and be "at liberty to bequeath in fee simple right one half of the same."

Under the various decrees in this cause, the debts of B. R. Wilson were ascertained, and the cause matured for hearing, and the facts, as stated above, being agreed, the circuit court decreed the sale of the Cedar Lawn tract of land, to pay the debts of the said B. R. Wilson, deceased, without assigning dower to the said Bettie Wilson in the same, although the account of debts, and of the real estate of said Wilson, as reported by the commissioner to whom the same had been referred, showed the said real estate to be worth more than the debt secured by the trust deed of 1876, which appears to be the only debt which is paramount to the widow's dower.

And we find the following in the decree:

"And the court being of opinion that the defendant, Bettie Wilson, has ratified, approved and confirmed, when free from disability, the deed made by her during her minority in the proceedings mentioned, the court doth so adjudge, order and decree," and reserving the right to make a further enquiry as to the personal property claimed as a homestead exemption by

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the late B. R. Wilson, and further reserving the right to make all necessary and proper orders for the protection of the dower interest of the defendant, Bettie Wilson, in the real estate in the proceedings mentioned, decreed the sale of the entire real estate of the said B. R. Wilson, and also the lands which we have seen were the maiden property of the widow.

From this decree Mrs. Bettie Wilson, the widow, appealed. It does not appear from this record that it was impossible to assign dower to the widow, in kind, but the contrary. The tract of land consisted of two hundred and fifty acres, and the trust deed debt was, principal and interest, $1,532.89, while the fee simple value of the real estate was reported to be $2,750. It does not appear that the dower could not be assigned and the residue sold to pay the creditor secured by the trust deed, with the right reserved to proceed farther against the dower if the trust deed debt was still unsatisfied. It is not pretended that the dower was barred by another debt. In the case of White v. White, reported in 16th Grattan, 267, Judge Lee, speaking for the whole court, said: "The court is of opinion that as it is not made to appear that it was impossible to assign to the appellant her dower of and in the real estate of her husband, it was not competent for the court of equity, in the exercise of its general power, to decree a sale of the whole property, and to provide a compensation in money to the appellant in lieu of her dower against her will and without her consent."

* * * * *

In the case of M. Blair v. Thompson and others, 11 Gratt. 451, Judge Allen in delivering the opinion of the court says: "The widow was entitled to her dower in the lands to be assigned by metes and bounds. The court had no authority to decree a sum in gross in lieu of dower except by the assent of all parties interested." And also, Judge Allen says: "I also think the court erred in decreeing a gross sum against the purchaser in lieu of dower. As has been remarked such a decree could be authorized only by the assent of all the

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parties interested." See Herbert v. Wren, 7 Cranch's R. 370; Wilson v. Davisson, 2 Rob. R. 384.

In the case of Simmons v. Lyles, reported in 27 Grattan, 929, Judge Staples in delivering the opinion of the whole court said: "The court is further of opinion, that dower is to be assigned of one-third of the real estate whereof the husband was at any time siezed during the coverture; that such assignment must be in kind by metes and bounds if required by the widow.

When an assignment in kind is impracticable, from the nature of the husband's interest, or from the nature and quality of the property itself, it will of course be dispensed with, and some other mode adopted. But the court is not authorized to substitute a commutation or a compensation in money merely because dower in kind may prove to be injurious to the interests of the heirs or creditors. The right of the widow is a legal one, and is paramount to any and every claim or lien created by the husband after the marriage. In White v. White & als., 16 Grattan, 264, this court laid down the rule on this subject in the strongest possible manner." This case of White v. White, &c., we have already considered above.

We have thus seen that it is error to decree a sale of the real estate without first settling the dower right of the widow. The court in this case decrees a sale of all the real estate, and then reserves the right hereafter to make suitable provision for the dower rights of the widow. The court should have first determined the question whether dower could be assigned to the widow in kind, and if that was impracticable, then a suitable compensation should have been made to the widow.

We will now consider the rights of the widow in the undivided moiety of the tract of land called Cedar Lawn, which was her maiden property.

It is admitted and proved that the wife was an infant when she executed the deed of 1845, conveying this land to Goodrum, who conveyed to her husband. This deed, being the deed of an infant, was voidable when she came of full age.