Menifee's Ad'rs v. Menifee, 8 Ark. 9 (1847)

July 1847 · Arkansas Supreme Court

8 Ark. 9

Menifee’s Ad’rs vs. Menifee et al.

The Probate Courts of this State are invested with jurisdiction in matters of dotver; but Courts of Chancery are not thereby ousted of their ancient jurisdiction in such matters. And when the lands, in which dower is claimed, lie in different counties, or complicated accounts are to be settled between the parties, Chancery is the more appropriate tribunal.

The widow is entitled to dower in the lands, slaves and other personal property of her deceased husband, as held hi Hill’s Mrs. v. Mitchell et al. 5 Jirlc. Rep. 609.

She .is entitled to one-third of the personal property (other than slaves) absolutely, and the administrator holds it as trustee for her; and if he sell the personal property without allotting to her her dower therein, she is entitled to one-third of the proceeds of the sale. Hill’s Mrs. v. Mitchell et al., supra, cited and explained.

She is entitled to dower in the increase of slaves, accruing between the death of her husband and the time of the allotment of her dower: also to one-third of the rents of land and hire of slaves; and may hold the mansion and farm attached, free of rent, until her dower is assigned.

An answer to a bill in chancery must be taken as true, unless contradicted by the testimony of two witnesses, or one with corroborating circumstances.

When a widow has retained a gold watch belonging to her husband’s estate, on a bill ' for dower and settlement of accounts between her and the administrators, it is not erroneous for the court to charge her with the value of the watch instead of decreeing that she deliver it up.

The administrators are entitled to the possession of the residue of the estate of the intestate, real and personal, after payment and assignment of the widow’s dower, for the payment of debts; and are therefore entitled to receive the rents of the lands and hire of the slaves.

The inheritance is cast upon the heir, and it is his duty to assign the widow’s dower: but until the debts are paid the administrator is entitled to the possession of the land. Hill’s Airs. v. Mitchell, sup. and Morrill et al. v. Menifee’s Adra., 5 Ark. Rep., 629, overruled so far as they contravene this principle.

Where the deceased was seized of lands in joint tenancy, the widow may unite the joint tenants or his heirs, in case of his death, in a bill for dower against the representatives of her husband, so that the lands thus held may be divided and her dower therein assigned, tQ,avoid a multiplicity of suits, which the law abhors.

Appeal from the Chancery side of the Conway Circuit Court.

Bill in Chancery for dower. On the 6th February, 1844, Mary E. Menifee filed a bill in the chancery side of the Conway Circuit Court, in substance as follows:

Complainant, a resident of said county, was lawfully married to Nimrod Menifee, late of said county, who died .in January, 1842. Her husband was seized, during their marriage, and at the time of his death, of an estate of inheritance; in a large number of tracts of land, which are described by their metes and bounds in the bill, and the probable value thereof alleged, making an aggregate as follows: 1258 acres, valued at $9000: tire undivided half of 83 acres, upon which the town of Lewisburg is situated, valued at $10,000: and 6 lots in said town, valued at $1000 each, all lying in the county of Conway. Also a tract of 170 acres, valued at $500, situated in the county of Perry.

Complainant’s said husband was also seized and possessed, at the time of his death, of a number of slaves, which are described in the bill, and their .supposed value alleged, amounting in all, men, women and children, to ten, and valued in the aggregate at $5,200. He was also possessed of other personal property, consisting of goods and chattels, dioses in action, rights, credits and effects, of the net value of $7000.

Soon after the death of her said husband, letters of administration, upon his estate, were granted to Dudley D. Mason and Benj. F. Howard, of Conway, and James Menifee of Pope county, who were made defendants to the bill.

Complainant further alleged that said administrators had taken into their possession, all of said lands, lots, slaves and their increase, and other personal estate. The hire of the slaves for the year 1842 was $624 60; for the year 1843, $717, which had been received by the administrators; and the hire of the slaves was still accruing in their hands.

William L. and Sarah Jane Menifee, minors, were the only children and heirs of said Nimrod Menifee, and Joseph J. Simmons, was guardian of Sarah Jane: they all resided in Conway, and were made defendants.

Complainant alleged further, that David Thompson, late of Crawford county, in his life-time, was the legal owner of the other undivided half of the eighty-three acres of land upon which the town of Lewis-burg was situated, above mentioned; and he and complainant’s husband, the said Nimrod, laid it off into lots, blocks, and squares, called it Lewisburg, ¡fnd it then was the county seat of Conway. Thompson died without making division of said tract of land with said Nimrod, except to convey to him the six lots above named and two others. The heirs of Thompson were his daughter , Frances M., wife of James A. Scott, his sons, David D. and Calvin M., and daughter Julia E. Thompson, the latter three of whom were minors, and John Drennen was their guardian: they all resided in Crawford county, and were made defendants.

After the death of Thompson, complainant’s husband instituted suit in the Conway Circuit Court against his heirs, for partition of said lots and blocks in Lewisburg, of which they were joint owners as aforesaid, and the Court decreed a partition of them. Complainant sets out the lots which were decreed to her husband, but alleges that the proceedings in said suit were said to be irregular, and no* binding upon the heirs of Thompson. A transcript of the record of said suit was exhibited, and made part of the bill.

Jesse Laine and George W. Paschall, of Crawford county, were alleged to be the administrators of Thompson, and made defendants.

Complainant further stated that the usual dwelling-house of the said Nimrod Menifee, and family, was situated on “said lands,” and the possession thereof had been retained by her. She alleged that she was entitled to one-third of said lands and slaves, and the hire of the slaves, for and during her natural life, and one-third of said personal estate absolutely; and that her dower had not been assigned to her.

The bill prayed drat the said administrators of Nimrod Menifee be compelled to account with complainant, and pay' to her what might be found due hei\ That the heirs and administrators of Thompson show cause, if any they could, why the said decree of partition rendered against them as aforesaid, should not be confirmed, and why dower should not be assigned to her in the Lewisburg lots decreed and set apart to her husband in severalty in said partition suit. That dower, as above claimed, might be decreed and assigned to her in all of said lands, slaves, their hire, and said personal estate, and for general relief.

After several continuances, and alias subphenas, the defendants were all served with notice. At the September term, 1845, complainant filed a supplemental bill, alleging that since the filing of the original bill, defendant, Sarah Jane Menifee, had intermarried with one Isaac Strain, and praying that he be made defendant, and that the suit abate as to Joseph J. Simmons, guardian of said Sarah Jane: which was done.

The administrators of Nimrod Menifee answered the bill in substance as follows:

They admitted that complainant intermamed with their intestate, and that he died in the year 1842, leaving her his widow. At the time of his death he was seized, either in law, or of an unquestionable equitable title, of the several parcels and tracts of lands as set forth in thebill,andof the probable value therein a^Arvpd- Also of the slaves mentioned in the bill; of the .probable value alleged. Respondents became administrators of Nimrod*Menifee a few days after his death, and immediately took possession of the said slaves, and personal estate of intestate. They proceeded to give- notice, and sell the personal estate on a credit of twelve months, taking bond and security. The first sale amounted to $2,383 82-|-, and afterwards, on the 31st Sept., 1842, thejr made another sale amounting to $77 50, making in all $2,461 82|. Respondents obtained an order of the Probate Court, to hire out the slaves, in February, 1842, and had continued to hire them. The amount of the hire, and of rents, at the end of the then present year, would be $2,434 62J.

Respondents alleged that at the sale of the perishable property, and the hiring of the slaves, complainant became indebted for the purchase of personal property, and the hire of slaves, in the sum of $1,098 37^- with interest, &c., and as security for others in about the sum of $60, making in all some $1200.

Respondents further alleged that at the time of the death of their intestate, he was seized and possessed of a certain negro girl, slave, commonly called Amelia (not mentioned in the bill), of the probable value of $500: of a gold watch of the probable value of $300: of some Durham cattle, of the probable value of $300: that their intestate had, as respondents were informed, considerable property coming to him in Kentucky, amount unknown] which had or would come into the hands of complainant.

Respondents prayed that their answer might be taken as a cross bill, that Mrs, Menifee be required to answer the allegations therein, and particularly the following interrogatories:

“1st. Have you property in Kentucky, belonging to Doctor Men-ifee at the time of his death, which is subject to distribution and payment of his debts'? If not, has tire Doctor, and what amount?

2d. Was not Dr. Menifee, at the time of his death, seized and possessed of a negro girl, slave, called A melia? Have you not retained possession of her since his death, and what is the probable value of said slave, and of her hire?,

3d. Was not the Doctor, at the time of his death, possessed of a gold watch, and some Durham cattle? If so, state the value thereof, and whether you have not retained possession of them?

• 4th. State if there has not been an increase of the slaves since the filing of your bill> and the probable value thereof?

5th. Have you not kept possession of the farm ever since the death of Doctor Menifee, and what is the probable value of the rents and profits?

6th. Did you not, on the 1st day of March;-, hire negroes to the amount of ¡$167 50? If so, did you comply with the terms of the hiring, by giving your note therefor?.

7th. Was not the farm of Doctor Menifee extensive, embracing different quarter sections of land? If so, state the probable value of the rent of each tract?”

The administrators also alleged, that, since the death of their intestate, there had been allowed against his estate, in the Probate Court of Conway, claims amounting to tire sum of ¡$7,625, besides costs and interest, and they believed the estate would be insufficient to pay the creditors.

To the answer of the administrators, complainant, Mrs. Menifee, filed a general replication; and to their interrogatories, she filed a response, in substance as follows:

“Response to 1st Interrog. Respondent has no property in Kentucky, belonging to her husband, Dr. Menifee, at the time of his death, subject to distribution or the payment of his debts; nor had the Doctor any there as far as she knows or believes.

To 2d Interrog. Respondent says that, by the will of her deceased father, his slaves were bequeathed to her mother, during her natural life; and the girl referred to in said interrogatory (Amelia) was sent from Kentucky by her mother (who is or was still living at the last advice from her), in the care óf Doctor Menifee, to her sister, Mrs. Ball, who lives near Lewisburg, to assist and Avait on her; and that after the girl came out here, she was unhealthy and is still so; and during the Doctor’s life-time, was sometimes taken to his house to be “administered to;” but since his death, she has been generally with Mrs. Ball, but sometimes Avilh respondent. That said girl did not belong to Doctor Menifee at, or before his death, nor is she subject to his debts, or to-distribution, as she is advised. The value of said girl she supposes to be about $400, and her yearly hire about $40.

To 3d Interrog. At the time of the decease of Dr. Menifee, respondent had a Durham heifer in her own right, and which she is advised the Supreme Court of this State have decided to belong to her, and not to the Doctor. Said heifer now has increase, three in number, and the four she supposes to be of the value of $50. But she denies that they are subject to the debts of the deceased, or to distribution, being her own individual property. She still retains the' watch referred to, and supposes it to be of the value of about from $60 to $80.

To 4th Interrog. Respondent says that since the filing of her bill in this case, there has been an increase of one among the slaves, mentioned in said bill, and the probable value thereof may be about $25.

To 5th Interrog. Respondent has retained possession of the farm, attached to die chief dwelling-house of her late husband, ever since his death, as she had a right to do, free of rents, until her dower is assigned to her, which has not been done. And taking the several years together, and considering the overflow of the last and present years, the levees made to protect the farm, and the necessary improvement of fences, houses, <fcc., she thinks the value of the rents and profits not more than the labor and expenditure made on the farm.

To 6th Interrog. Respondent did hire a part of the slaves, as stated in the 6th interrogatory, but she does not remember whether or not the amount was $167 50, as stated, but presumes it was, and she did not give her note therefor.

To 1th Interrog. Answers that the said farm of Doctor Menifee, attached to his dwelling-house, which she has in possession, as aforesaid, is tolerably extensive, or was so before the river cut it away; it is composed of different quarter sections of land. She cannot state the probable value of the rents of each tract, not being correctly informed as to where the lines run; and the probable value of the whole she has stated above to the best of her knowledge and belief. She has none of the lands of her said husband in possession, nor has she had, nor has she received any of tire rents and profits from any of such lands, except tire farm attached to the chief dwelling-house as aforesaid.”

Isaac Strain, and wife Sarah Jane, and said Strain as guardian ad litem of William L. Menifee, filed a joint and several answer to the original bill, in substance as follows: .

Respondents admitted all the allegations of said bill to be true, and further answered and alleged, by way of cross bill, that said Sarah Jane and William L. were the only living children, and heirs of said Nimrod Menifee, deceased. That he died seized and possessed of the lands and slaves described in the original bill. That on the death of said Nimrod, his said heirs were legally entitled to the possession of said lands and slaves (subject to complainant’s dower), and to the rents, issues and profits of the lands, and the hire and profits of said slaves and their increase. That soon after the death of said Nimrod, the defendants, Mason, Howard and Menifee, his said administrators, under the color of such administration, took possession of all of said slaves and the greater part of said lands, and had from thence hitherto held possession thereof, and received the rents and profits of said lands and slaves, and continued so to do; and to withhold said lands and slaves, and the rents and profits thereof, from respondents; which rents and profits they charged to amount to upwards of $2000. Respondents alleged that they claimed possession of the said lands and slaves, subject to the dower of complainant, and the claims of creditors: they claimed the rents of the lands and hire of the slaves against the demands of creditors, and submitted to the Court whether the complainant was entitled to dower therein. Respondents made said administrators defendants to their cross bill, propounded interrogatories to them, covering the allegations therein; and prayed that they might be decreed to deliver up to them possession of such part of said lands and slaves as they were entitled to; to account with them for the rents and hire, and to pay over to them the same, or so much thereof as they were entitled to, &c.

Drennen, the guardian of the minor heirs of Thompson, failing to appear, Jonas M. Tibbatts, Esq. was appointed guardian adlitem for said heirs, and the original bill dismissed as to Drennen. Tibbatts answered for said heirs, that they were of teqder age, knew nothing of the truth of the allegations in the original bill, and therefore denied them.

The administrators of Thompson, and James A. Scott and wife, Frances M., made default, and a decree pro confesso was taken against them.

The administrators of Nimrod Menifee answered the cross bill of Strain, wife, and William L. Menifee, in substance as follows:

They admitted that Strain’s wife and Lewis L. Menifee were the only heirs of Nimrod Menifee. That immediately after the death of their intestate, they took possession of the slaves mentioned in the original bill, hired them out under an order of the Probate Court, kept them so hired, and the hire thereof amounted to the sum stated in their answer to the original bill. That since they administered, there had been an increase of two negroes, one called Jacob, the other nameless. The order of the Probate Court under which they hired out. the negroes was exhibited. They further alleged that claims had been exhibited and allowed against them, as such administrators, by the Probate Court, amounting to $7,625, besides costs and interest, and that after the allotment of the widow’s dower, the real estate, slaves, perishable property, rents and hire, would be insufficient to pay the creditors of their intestate.

There were general replications to all the answers filed, and the cause set down for final hearing, at the September term, 1845, on the original, cross bills, answers, replications, exhibits and oral testimony taken at the hearing, by consent, and the Hon. R. C. S. Beown, Judge, decreed as follows:

1st. That the administrators of Nimrod Menifee, pay over to Mrs. Menifee, complainant in the original bill, one-third of the amount of the proceeds of the sales of the personal estate of their intestate, less $70, the value of the said gold watch; and that she retain the said watch, and the said Durham cattle.

2d. One-third of the sum arising from the rents of the lands, and hire of the slaves, less $167 50, the amount of her indebtedness for slave hire.

3d. That the partition formerly made, between Nimrod Menifee and the heirs of Thompson, of the town of Lewisburg, be confirmed, subject to the dower of Mrs. Menifee in the half allotted to her husband.

4th. That Mrs. Menifee be endowed of one-third of all the real estate; slaves, and their increase since tlie death of her husband, excluding the girl Amelia, who was declared not to be a part of his estate: appointing commissioners to assign her dower in the lands and slaves, and requiring them to report at the next term of the Court.

5th. That the heirs of Nimrod Menifee were entitled to possession of his lands and slaves, subject to the widow’s dower, and to the rents and profits thereof; and that the administrators deliver up to them said lands, slaves and increase, and pay over to them two-thirds of the sum of the rents of the lands and hire of the slaves. The amounts were all specified in the decree.

The admissions of the parties, and the evidence taken at the hearing, were put upon the record, and are substantially as follows: The allegations in the original bill which were not matters of record were admitted, by the defendants, to be true. It was also admitted that the slave Amelia was devised by a Mr. Dunn to his wife for life, and tíren to complainant, Mrs. Menifee, who was the daughter of Dunn.

Lemoyiie, a witness, testified that, at the time Doctor Menifee died, the gold rvatch was worth $120 or $125. In December, 1840, witness traveled up the Arkansas river, from Little Rock to Lewisburg, with Doctor Menifee, who was returning from Kentucky. Menifee brought the slave Amelia with him, kept her ever afterwards, and was in possession of her at the time he died.

Haynes testified, that, in the year 1841, Dr. Menifee gave in eight slaves as taxable property. Witness knew all his slaves, and he had but seven besides the girl he brought from Kentucky. The assessor’s book was produced, from’which it appeared that Dr. Menifee gave in eight negroes for taxation in the year 1840. Witness further stated, that the Doctor retained possession of Amelia until his death. That he was possessed, when he died, of a Durham cow and calf, but witness did not know their value.

Alexander Mink testified, that Doctor Menifee retained in his possession the girl he brought from Kentucky, and exercised acts of ownership over her as over his other slaves, until he died. That she was sent to Col. Ball’s frequently, when Mrs. Ball was sick, and went sometimes with her mistress. Dr. Menifee had a Durham cow and calf at the time of his death; witness did not know their value, but at Menifee’s sale, a cow inferior to her sold for $100 or $105. But the Court excluded Mink’s testimony as to the value of the cow, \ by comparison with others at Menifee’s sale, and witness being asked the present value of the cow, said he did not know. Witness said Dr. Menifee had no negro girl named Amelia, but the girl he brought home was called Permelia..

From the decree aforesaid, the administrators of Menifee appealed to this Court.

The attorney for Mrs. Menifee moved to dismiss the case, upon the ground that the decree of the Court below was but interlocutory, > from which no appeal would lie; but this Court overruled the motion.

The .errors assigned appear in die opinion of the Court.

Ringo & TrapNall, for appellants.

The appellants in this case, upon the record and assignment of errors, state the points and authorities following, viz:

1. That, in .the personal property of her deceased husband, the widow, if entitled to dower at all (which is denied), is only entitled to one-third of each class of things, of which her husband was in fact seized at the time of his death; that is, one-third part in specie of the horses, cattle, merchandise, money, &c., owned and possessed by him at the tíme of his death. Rev. St. Ark., ch. 52, s. 20.

2. That her right, if she has any right, in the personalty, attaches upon and adheres to tire property owned and possessed by her husband at his death; but prior thereto, she has no vested interest therein, aor any inchoate right whatsoever. Upon the happening of that event, this right was cast upon her, and by the mere force and operation of law she rvas immediately invested with the absolute property in the undivided one-third part of his personal property, with the right of separating the same from the residue of his personal property, and .obtaining possession thereof in the manner prescribed by law, i. e., by injunction, to prevent a sale by the administrator, and a petition to the Probate Court’ filed in proper time for the assignment and setting apart to her of her portion thereof. Hill’s adr. v. Mitchell et al. 5 Ark. Rep. 614.

3d. If it be true that dower is a right, which by law attaches upon and adheres to the specific things owned and possessed by the husband at the time of his death, it follows that the widow must avail herself of such means as the laws afford to possess herself of the specific thing: but, if she- omits to cause her portion to be separated from the mass of the estate, and stands by and suffers the whole to be sold by the administrator, who by law is invested with the right to the possession of the whole, until she causes such separation, all the funds arising from the sale are held by the administrator for the creditors of the intestate, and the distributees, if any thing remains after payment of the debts, &c.; but the widow has no lien or claim whatsoever upon the money in the hands of the administrator arising from the sale and conversion of the property into money, any more than she would have to the money arising from the sale of lands, to which (lands) she may notwithstanding the sale, by virtue of her specific legal right in the land, which the sale cannot divest, afterwards demand and recover her dower. And the like principle applies where slaves or personal estate are sold: the purchaser takes the thing, whether land, negroes, horses or other personal estate, subject to her right therein, whatever that may be; and she may assert her right to or in the property in whose hands soever it may be, but has no right, and can maintain no claim whatever, to any portion of the money produced by the sale of property so situated. Hill's adr. v. Mitchell et al. 5 Ark. Rep. 619, 620. Rev. St. ch. 4, sec. 43, 44, 45, 46, 51, 52, 53, 54, 56, 65, 70, 79,105, 164, 166.

4. The widow’s right of dower, if any, being confined to the specific slaves and chattels owned and possessed by her husband at the time of his death, and the right of having and enjoying such chattels specifically; and the possession thereof vesting in the administrator from the death of the intestate, until her portion is separated from the residue, and she obtains actual possession thereof, the hire and all acquests derived from such property while in the possession of the administrator are assets for the payment of debts, and her interest does not extend thereto. Hill's adr. v. Mitchell et al. 5 Ark. Rep. 615.

5. So, also, is the rule in regard to lands and slaves, in which the widow has a right of dower until she obtains an assignment thereof. HiU's adr. v. Mitchell et ad. 6 \rlc. Rep. 615. Where lands are sold by the husband in his life-time, without any relinquishment of dower by the wife, who survives him, all must agree that her dower right in the land becomes absolute and completely vested at his death; but no one, we presume, would claim for her the one-third part of the rents and profits of the lands between the death of the husband and the assignment of her dower out of such land; and yet her right thereto is as good and depends upon the same principle precisely as her claim of dower in the rents and profits of lands of which he died seized, but which descended to and is held by the heir, and there can be no difference in respect to the hire of slaves descended to the heir. She is in neither case entitled to dower until she obtains an assignment thereof, and tiren she takes the property in rem or in specie, and has the use of it during her life, but nothing more.

6. That where personal property is given to the wife by a stranger and reduced into actual possession during the coverture, the property by law vests in the husband, may be subjected to his debts while living, and upon his death vests in his administrator and is assets in his hands for the payment of debts.

7. That the gold watch presented and given by the husband to his wife, during coverture, and in possession of the wife at tire time of her husband’s death, was in his life-time, and at his death, subject to his control, and liable to be seized for the payment of his debts, and upon his death the same passed to his administrator, and was in his hands, subject to administration and sale precisely as other personal property of the intestate; and the administrator was bound to dispose of the same in the same manner that he was required by law to dispose of any other personal property of his intestate, i. e. by sale at public auction; and no other mode of disposing thereof is authorized by law. Howard et al. v. Menifee, 5 Ark. Rep. 668. Rev. St. ch. 4, sec. 43, 46, 51, 65, 79.

8‘. That the creditors of a person deceased have the right to a satisfaction of their demands out of his estate, and the administrator, as his legal representative, is, out of his estate, bound to pay all of his debts, where payment is demanded, within the time and in the manner prescribed by law; and for the payment thereof, (when as in this case the estate is insolvent), the administrator is bound to dispose of the whole estate, real, personal and mixed (not given by law to the widow for dower), which, but for the claim of creditors, would descend to the heirs, who can take nothing from the estate of their ancestor until all his debts are extinguished or satisfied; and appropriate the proceeds arising therefrom to payment of debts in due course of administration. These principles are conceived to be unquestionable; and if so, it is equally certain that the heirs are not entitled by law to any portion of either the rents and profits of the land or hire of the negroes until all the debts are paid. If the lands and slaves, from which the rents and hires are derived, and out of which they accrue, are by law withheld from the heir and appropriated to the payment of the debts, upon what principle can the heir be entitled to and take the rents of the one or the hire of the other, while the debts remain unpaid? Is it not the law, that the whole estate derived from the ancestor and descended to the heir is subject to the claims of the creditors through the administrator? Most certainly it is. 5 Ark. Rep. 615. Rev. St. ch 4, sec. 70, 71, 145.

9. The appellants submit, that the slaves are by law subject to the claims of creditors, notwithstanding the obiter dictum of this Court to the contrary in the case of Hill’s adr. v. Mitchell et al. 5 Ark. Rep. €09. In that case, there were no slaves, and of course no judgment upon the question here presented, i. e. whether the widow is entitled to dower in slaves against the claims of creditors. And although the dictum of the Court in that case indicates the then opinion of this Court, the question is still open, never having been adjudged by this Court; and therefore, notwithstanding the appellants have assumed in presenting their points above, that the widow is entitled to dower in slaves against the creditors, that assumption is founded solely upon the dictum aforesaid; and, whether true or not, has but little influence upon the points in connection with which such right is assumed: and believing the law to be opposed-to said dictum, the apellants earnestly contend that, as to slaves and every other species of personal property, the creditors have a right to subject the same in satisfaction of their demands; and that the rights of the widow therein is by law postponed to those of the creditor. Rev. St. ch. 4, sec. 24, 43, 44, 45, 51, 56, 62, 23, 65, 79, 105, 121, 143. Hill’s adr. v. Mitchell el al. 5 Ark. Rep. 609‘ and the opinion of Ringo C. J. dissenting in the same case.

10. The appellants insist that by law the dower, or right of the widow, to whatever description or kind of property it may extend, is unquestionably limited to property or things in being at the death of the husband, and does not attach upon or extend to any thing which comes into being after his death; as for instance, the increase of cattle, horses, hogs or slaves born after-his death: nor to any product of the land planted, and harvested after his death; or harvested, mown or gathered after, though planted or growing before his death; such, for instance, as a 'crop of corn, cotton, wheat or grass, or the produce of fruit trees and the like, all of which they insist goes to the administrator for the payment of debts and distribution, at least where the ■estate is insolvent, as in this case — except so much as the widow is allowed to take by virtue of the 62c? sec. of the 4 ch. Rev. St. p. 78: nor does die principle .that die increase goes witli the mother apply in >any way to such case, because the widow’s right is expressly confined to things in being at her husband’s death.

11. The slave Amelia is shown to have been given by will to A. for and during her life, and at the deadr of A., to the widow of Menifee; that A., who was at the time living, some years before the déath of Menifee, sent this slave from Kentucky to Mrs. Menifee, in Arkansas, by Menifee, who thenceforward until his death held her in his possession, exercised acts of ownership over, listed her for taxation as his own property, and was seized of her at the time of his death. This, dre appellants insist, made her subject to his debts, at least against the claims of all the world, except A., who previously had a life estate only in her; that no person, except A., could controvert the right of Menifee to her, and she claiming no right in her, nor being in any manner a party to this proceeding, the widow having no authority to represent her and insist upon her, A.’s, right, if she had any, at his, Menifee’s death, she must, until A. shall assert and establish her right, be regarded as the property of Menifee, having been that of his wife and reduced to possession during the coverture; and of course a portion of his estate subject to be disposed of by the ad-ministratois for tile payment of .his debts.

12. In lands held in joint tenancy by Menifee and tlie heirs of' Thompson; at the death of Menifee; the widow of Menifee has by law no dower interest; nor can she cause partition thereof to be made between the heirs at law of Menifee and the heirs at law of Thompson. She has no dower in lands so situated; because Menifee had not, during the coverture and at his death, seizen of any portion of said lands, but a possession of the rvhole in common with the heirs of Thompson; and until partition thereof made, it was impossible to know what particular parts, lots or parcels thereof, would fall to his share;, so that her dower could neither attach in or upon the whole of the lands so held in common, nor in any particular lot, tract or parcel thereof; because Menifee never owned the whole nor any separate part thereof, and her dower right not vesting in his life-time nor at his death, could not upon any known principle of law attach after his death, upon that portion of said land set apart upon the partition thereof to the separate use of Menifee’s heirs; besides,'dower is purely a legal right, and if the law does not fix it upon any specific thing in the life-time and at the death of the husband, equity cannot after his death either create the right or define the property upon which it shall attach, and out of which it shall be taken. 4 Kent’s Com. 37. As to partition, Rev. St. ch. 107. 4 Kent’s Com. 364, 365.

13. The appellants insist that the Circuit Court could not lawfully take jurisdiction of the matter upon the original bill or petition filed or exhibited therein by the widow for tire purpose of obtaining an assignment of her dower out of the estate of her deceased husband, the exclusive original cognizance thereof being by law vested in the Court of Probate of the county in which the property was at the time ‘of instituting the suit in the Court of Probate. State Const. Art. VI. s. 10. jRev. St. ch. 43, s. 6; and ch. 52, sec. 32, 44.

14. When the lands out of which the widow claims to have dower assigned to her, are situated in different counties, she must proceed by petition in the Court of Probate of each county in which the lands lie, for the assignment of her dower in the lands situate in such county; and no Court has authority to decree an assignment of dower out of lands situated in any county other than that m which the petition is filed. Rev. St. ch. 52, sec. 44.

15. The creditors of a deceased person being entitled by law to a satisfaction through, the medium of the administrator out of all the estate of the deceased, except that which the law gives to the widow (the heirs talcing nothing until the debts are paid), it follows necessarily that the administrator is bound, for their benefit, (in case of an insolvent estate), to sell and dispose of the remainder in the estate assigned in dower to the widow, whether lands or slaves; which by law remains to the heirs after the widow’s death; because they, "the heirs, take the same by inheritance, not from the widow, but from the husband, and they take nothing whatever from him until his debts are paid.

Fowler, contra.

Thompson’s heirs and administrators having taken no appeal; and there being nothing in issue between them and the appellants, either in this court or in the court below, the decree against diem must stand and be affirmed, or not at all noticed, as no person interested objects to it.

The appellants have no interest in that branch of the decree, it being for land only in which none but the widow and heirs of Menifee and die heirs of Thompson are interested; and even should there be error, (which there is not), appellants are not prejudiced thereby, are no parties to it, and can take no advantage of it. The Santa Maria, 6 Cond. Rep. 178.

And a judgment or decree consisting of separate and distinct parts, may be reversed in part, and in part affirmed. Flower V. Allen, 5 Cowen’s Rep. 669. Smith v. Jansen, 8 John. Rep. 116. Frederick v. Lookup, 4 Burr. Rep. 2018. 2 Tidd’s Pr. 1129. Jackson v. Jackson, 1 John. Rep. 431. Bradshaw v. Callaghan, 8 John. Rep. 566. Carter, Spc. v. Hawley et al., Wright’s Ohio Rep. 332. Collins v. John, ib. 628. Mackie v. Cams, 5 Cowen’s Rep. 564, 566, 576.

If appellants are at all interested in that part of the decree, it is for their benefit, as it gives the heirs of Menifee more lands which will eventually be liable for the payment of his debts, should personal estate be insufficient, and therefore cannot except to it.

And the widow properly joined the administrator and heirs of Tbompson; as a cloud rested upon her right to the lands in which they were interested; in order to remove^ it and settle her right to dower therein.

And the law abhors circuity of action and a multiplicity of suits about tire same matter; when one would suffice. 4 Cowen, 727.

And should the Court be of opinion that either part of the decree; whether that in favor of the widow or the heirs; is erroneous; or that any independent part thereof is erroneous, it may reverse such part and affirm the residue. See authorities referred to above on that point, and also the following, to wit: 3 Yerg. Rep. 371. Hopkins v. Chambers, 7 Mon. Rep. [262. Forman et al. v. Rogers et al., 1 Marsh. Rep.] 426. Underwood v. Brockman, &pc., 4 Dana's Rep. 320. Boone v. Chiles, 10 Pet. Rep. 230. Ringo et al. v. Binns et al. ib. 281.

It is however confidently asserted by the appellees, that the entire decree is valid.

The appellants deny that the Circuit Court had jurisdiction of the cause, but the appellees affirm that the jurisdiction is clear upon the following principles, to wit:

1. The complicated nature of the matters in controversy could not be settled in any other form, and on this ground alone Chancery has jurisdiction. Swaine v. Perine, 5 John. Ch. Rep. 488. Mitf. PL 4, 5, 89 etseq.

2. After a defendant has answered a Bill in Chancery, and submitted himself to the jurisdiction of the court, without any objection by demurrer or plea, it is too late to insist in the reviewing court that the complainant had a perfect remedy at law; unless the court of chancery is wholly incompetent to grant the relief sought by the bill. 5 John. Ch. Rep. 488. Hawley v. Cramer, 4 Cowen Rep. 727. Underhills. Van Cortlandt, 2 John, Ch. Rep. 369. Trelavmey v. Williams, 2 Vern. Rep. 484. Mitf. PI. 124. Badgley y. Bruce, 4 Paige's Rep. 100.

3. Wherever the remedy at law is doubtful or difficult, a court of ■chancery has jurisdiction. Mitf. PI. 96. Hawley v. Cramer, 4 Cowen Rep. 727. Conway et al. ex parte, 4 Ark. Rep. 339.

4. Where a court of equity has gained jurisdiction for one purpose, it may retain the cause generally and settle the whole by decree. Hawley v. Cramer, 4 Gowen Rep. 728. Johnson v. Cooper et al. 2 Yé?’g\ Rep. 531. Dugan v. Cureton. 1 Ar/c. Pep. 42.

5. Courts of chancery have concurrent jurisdiction with courts of law in cases of dower. Herbert et al. v. Wren et ux, 2 Cond. R. 536. S. C. 7 Cr. R. 376. ÜPif. Pi. 96, et seq. 6 P«c. A6r. title “Dower,” p. 417. 4Kent's Com. 70 (1 Edit.) Badgly v. Bruce, 4 Paige's Rep. 99.

6. By the Statutes of Arkansas in force prior to the adoption of the Revised Code, courts of chancery had exclusive jurisdiction in all cases of dower.' Laws of Ark. (digested by Steele & McCampbell), p. 222 et seq. title “Dower.”

7. Jurisdiction given by statute to a court of law of a subject of which equity before had exclusive cognizance shall be construed to be concurrent, not exclusive jurisdiction. Curmrdns et al. v. La-tham, 4 Monroe’s Rep. 103. Hempstead & Conioay v. Watkins ad., 1 English’s Rep. 357 et seq. Atkinson v. Leonard, 3 Brown's Ch. Rep. 224. House v. Cocke, 1 Tenn. Rep. 296. Whitting-ton, &c., v. Roberts, 4 Monroe 175. Harlan v. Wingate's ad. 2 J. J. Marsh. 140.

8. At the adoption of the State Constitution, jurisdiction was vested in cases of dower in courts of equity only: which cannot be taken away, but by express legislation declaring that they shall no longer have jurisdiction. Steele & McCamvpbell's Dig., p. 223. 1 English's Rep. 357. •

9. Courts of Chancery are not at liberty to relinquish their ancient and acknowledged jurisdiction though courts of law may now afford an equal remedy. 1 English's Rep. 358 et seq. White v.' Me-day et al., 2 Edw. Ch. Rep. 488. Hawley v. Cramer, 4 Cowen's Rep. 727.

10. Where a court of equity has jurisdiction, whether exclusive or concurrent, its authority cannot be overturned, or its jurisdiction ousted by a legislative enactment directing proceedings in a court of law, unless the statute use prohibitory terms. 1 Eng. Rep, 358 et seq. Atkinson v. Leonard, 3 Bro. Ch. Rep. 224. 4 Wash. C. C. R. 354. 2 Edw. Ch. R. 48S. Couchman's heirs v. O'Bannon, 1 Marsh. Rep. 387.

11. Equity will entertain jurisdiction where the remedy may be more full and complete than at law. Maye)- v. Foulkrod, 4 Wash. C. C. R. 352. Atkins et ux, v. Hill, 1 Cowp. R. 288. Mitf. PL 91, 96, et seq. Conway et al., ex parte, 4 Ark. Rep. 338.

12. Where the power of the Surrogate (with us Probate Court) is enlarged by statute, in matters of administration, it does not lessen the jurisdiction of the court of chancery. Carow v. Mowatt, 2 Edward’s Ch. Rep. 64.

13. Chancery has a general jurisdiction over executors and administrators as such, regarding them as trustees, and in such capacity will control them, and compel them to account and see that the trust is faithfully executed. Carovj v. Mowatt, 2 Edw. Ch. Rep. 64. Howard et al. v. Menifee, 5 Ark. Rep. 671.

14. A statute providing a remedy in partition in a court of law is cumulative and does not take away the chancery jurisdiction. Doans v. Fleming et al., Wright’s O. Rep. 168.

15. Although on application for dower to the Probate Court, the party is required to file a petition in each county, where the lands lie; yet in chancery the court may assign dower in lands situated in different counties. Rev. Stat. 158, sec. 4. Act of January IQ, 1845, sec. 3, Pamphlet, page 98.

16. The statute regulating dower gives one-third of the personal estate absolutely to the widow, and does not point out any means of enforcing this right, and therefore equity has jurisdiction, Mitf. PL 93.

17. A partition of lands in this case was prayed for -with Thompson’s heirs, and on that ground the court had jurisdiction. Mitf. PI. 97. Herbert et al. v. Wren Sp Wife, 2 Cond. R. 536. same case, 7 Cr. Rep. 376.

18. Mrs. Menifee had a right to, and prayed for an account ora proper allegations; and on that ground equity has jurisdiction. Mitf. PI. 96,7 Cr. Rep. 376. 2 Cond. Rep. 536, 538. Hawley v. Cra-mer, 4 Con. R. 727.

19. The right to dower is not controverted or denied by the answer; therefore equity clearly has jurisdiction. 6 Bac. Abr. title “Dower,” •p. 118, (412). 5. John Ch. Rep. 488. Curtis v. Curtis, 2. Bro. Ch. Rep. 620. 4 Kent's Com. 70. Mundy v. Mundy, 4 Bro. Ch. Rep. 295.

20. The subject matter of this suit would have required, at law, a multiplicity of suits to settle it, and on that ground alone, a court of equity has jurisdiction. 4 Cow. Rep. 727. Conway et al. ex parte, 4 Ark. Rep. 340.

21. The administrators held lire .property, rents, hire, <fcc., as trustees for the widow, and in cases between a cestui que trust and his trustees, a court of equity has jurisdiction; a court of law never. 15 Petersd. C. L. 143. Conway et al. ex parte, 4 Ark. Rep. 336. 5 Ark. Rep. 671.

22. The Legislature “may establish courts of chancery.” Constitution, art. 6, sec. 1. “Until the General Assembly shall deem it expedient to establish courts of chancery, the circuit courts shall have jurisdiction in matters of equity, subject to appeal to the supreme court, in such manner as may be prescribed by law. ’ ’ ib. sec. 6.

6. Therefore section 10 of article 6 of the Constitution can neither give to the Probate Court exclusive jurisdiction of dower, nor impair the ample exercise of chancery powers by the Circuit Court.

23. “The circuit court shall exercise chancery jurisdiction in this State in all cases where adequate relief cannot be had at law, and shall in all things have power to proceed therein according to the rules, usages, and practice of courts of chancery,” cfcc. Rev. Stat. p. 158, sec. 1. Therefore the statute giving the Probate Court jurisdiction in certain cases, and to a limited extent in matters of dower, cannot oust the Circuit Court of its long established jurisdiction in chancery over the same matters.

The appellants contend that it was wrong to decree dower in the proceeds of the sales of the personal estate, and that it should have been carved out of die specific articles. The converse of which Mrs. Menifee insists is true, on the following grounds, to wit:

1. That although this court, in case of Hill's Adr. v. Mitchell et al., 5 Ark. Rep., use language tending to convey such idea, yet in the same case it expressly declares the law to be that “upon the death of the intestate the personal property goes immediately into the hands of the administrator and he holds it as trustee for the widow,” and that the “right of dower is not defeated by the administrator having possession of the personal estate” as such trustee, as he takes and holds it for her benefit in trust. 5 Ark. Rep. 617, ib. 671.

2. A trustee, tvho wastes or appropriates to his own use, personal property, is bound in equity to account with the cestui que trust for the value of it. Roosevelt v. Post, 1 Edvj. Ch. Rep. 579. 2Edw. Ch. Rep. 64. Oliver et al. v. Piatt, 3 How* (U. S.) Rep. 401 et seq.

3. Where dower cannot be specifically assigned in the thing itself, it may and does attach to the proceeds, and any equitable mode of compensating the widow can be adopted. 2 Edw. Ch. Rep. 579.

4. A widow, on the foreclosure of a mortgage and sale of land thereunder, is entitled to her claim to the extent of her. dower in the® surplus proceeds after satisfaction of the mortgage. This shows that she is not confined to the specific thing, but may properly have the proceeds in lieu thereof. 4 Kent's Com. 93, 1st Edition. Tabele v. Tabele et al., 1 John. Ch. Rep. 45.

5. Implied, resulting or constructive trusts, in all those cases, where it would be contrary to the rales and principles of equity, that • he in whom the property becomes vested should hold it otherwise than as trustee. 15 Petersdorf C. L. 206, 207.

6. Trustees are responsible for and bound to make good, losses which the trust estate would otherwise have had to sustain in consequence of the negligent, mistaken or improper nature of their management. 15 Pelersd. C. L. 209, 210. Lowson v. Copeland, 2 Brown's Ch. Rep. 156. 5 Bac. Abr. title Uses and Trusts, E.p. 393.' Oliver et al. v. Piatt, 3 How. (U. S.) Rep. 401 et seq.

7. An executor holds the residue of the personal estate not disposed of by the will as trustee for the next of kin. Lowson v. Copeland, 2 Bro. Ch. Rep. 156.

8. A gross sum in money may be decreed to a widow as dower in lieu of the specific property. Smith v. Jackson, 2 Edw. Ch. Rep. 36. Van Gelder v. Post, ib. 579, 580. Herbert et al. v. Wrenet ux., 2 Cond. Rep. 536. 4 John. Ch.-Rep. 604, 605.

9. The administrators being trustees, it is a clearly established principle that where a trustee has been guilty of a breach of the trust, by a sale of the trust property or otherwise, the cestui que trust has a right to follow the property into the hands of a purchaser with notice; or where it has been changed into other property he can subject it; or hold the trustee personally liable for the breach of the trust. Oliver et al. v. Piatt, 3 Flow. (U. S.) Rep. 401 et seq.

10. And this right of election belongs positively and exclusively to the cestui que trust. 3 How. (U. S.) Rep. 401 et seq.

It is urged in behalf of the widow that one-third of the rents of the lands, and of the hire of the slaves, was properly decreed to her', because:

1. A widow takes her dower independent of the rights of creditors, and she is endowed in lands and slaves in the same manner. Hill's Adr. v. Mitchell et al., 5 Ar/c. Rep. 612.

2. The widow, in a decree for dower is entitled to one-third of the rents and profits from the time of her husband’s death. 2 Edw. Ch. Rep. 580. Hagan v. Thurber et al., 4 John. Ch. Rep. 604. Swaine v. Perine, 5 John. Ch. Rep. 488. Graham v. Graham, 1 Ves. 262. Brown et ux. v. Srmth, B. et P. 117. 8 Petersdorf C. L. 488. Flerbert et al. v. Wren, Spc., 2 Cond. Rep. 538. Jackson v. O' Dougherty, 7 John. Rep. 248. 6 Bac. Adr. title “Dower” p. 415 (149). 5 Cond. Rep. 383. 4' Kent's Com. (1 Ed.) 69. Badgley v. Bruce, 4 Paige's Rep. 99.

3. And she is entitled to a decree for her third of tire mesne profits without any reference to a demand. 4/. Ch. Rep. 604. Hitchcock v. Hairington, 6 John. Ch. Rep. 295,296.

4. The widow’s title to one-third of the land is perfected by his death, and is superior and prior to all other titles and incumbrances and most respected in law. Combs v. Young, 4 Yerg. Rep. 226.

5. Where executors, &c. keep slaves in their possession and have the benefit of their services, it is not error to make them account for such hirei Blakey, &*c., v. Blakey, Spc., 3 J. J. Marsh. 681. Chaplin, &c. v. Simmons, &c., 7 Mon. Rep. 338.

6. Widow is entitled to damages for the value of her dower from demand made, and the demand will be implied and taken as made at her husband’s death unless the defendant plead no demand. 8 Petersdorf's C. L. 488. Hitchcock v. Harrington, 6 John. Rep. 295, 296.

7. A right to land essentially implies a right to the profits accruing from it, since without the latter the former can be of no value. Green v. Biddle, 5 Cond. Rejo. 382.

8. Damages for the detention of land, and rents, and profits, are the same. Green v. Biddle, 5 Cond. Rep. 382.

9. The fruits of industry, as well as those of nature, belong to him who is master of the thing from which they flow. 5 Cond. Rep. 384.

10. Whoever takes and holds possession of land to which another has a better title (and the administrators had notice) whether by dis-seizen or otherwise, is liable to the true owner for the profits which he has received whether consumed by him or not. 5 Cond. Rep. 384.

11. And in relation to rents and profits, the law recognizes no distinction between a bona fide and mala fide possessor, in accounting to the owner. 5 Cond. Rep. 384.

12. Though a widow die before she has established her right to dower, equity will, in favor of her personal representative, decree an account of the rents and profits of the lands, of which it afterwards appeared that she was dowable. 1 Fonbl. Eq. 10,22, note f. Curtis v. Curtis, 2 Brown's Ch. Rep. 620 et seq., 6 Bac. Abr. title ■ “Dower,” 417.

13. Dower attaches to all real hereditaments, such as rents, &c. 4 Kent's Com. (1st Ed.) 40, 62.

14. The wife, when endowed, is in from the death of her husband, and, like any other tenant of the ‘freehold, takes upon a recovery whatever is then annexed to the freehold. 4 Kent's com. 65. Rankin et al. y. Oliphant et ux., 9 Missouri Rep. 243.

15. The rent and hire shall be computed to the da;f of taking the account or rendering the decree. . Chaplin, &fc. v. Simmons, &c., 7 Monroe's Rep. 338.

The decree that Mrs. Menifee should retain the cattle, the slave Amelia and the watch, deducting the value thereof in the adjustment of the account, is strictly correct.

1. A material part of the suit was for the adjustment of accounts, both of the original bill and the cross bill of the administrators, and therefore all matters set up in the bills and answers were rightfully passed upon by the court. 2 Cond. Rep. 538. •

- 2. The appellants themselves chew the cattle, Amelia, and the watch into controversy, and they cannot complain of the adjudication of the court thereon.

3. Amelia, as clearly shown by the evidence, never belonged to the intestate, and,the preponderance of the evidence produces the same result as to the cattle.

4. The watch was a part of the paraphernalia, subject, it is true, to the payment of the husband’s debts; but being in her actual possession and dragged into the controversy by the appellants, the value of it in cash decreed to them is certainly as good to them as the watch itself. Howard et al. v. Menifee, 5 Ark. Rep. 670.

5. When chancery is called upon by the complainant to settle accounts, it will decree thereon; and in a proper case will decree a balance in favor of the defendant, although not prayed for in his answer. Wood et ux. v. Lee, 5 Monroe's Rep. 66.

6. Where a bill in chancery is filed for the adjustment of accounts, &c., between the administrator, distributees &c., any cross demands, or equitable claims may be set ofif and finally adjusted between the parties. Chaplin, Spc. v. Simmons, cfc., 7 Monroe's Rep.' 338. 2 Cond. Rep. 538.

That the widow is entitled to dower in the “slaves, whereof the husband died seized or possessed.” See Rev. Stat.p. 339, sec. 20. Hill's Adr. v. Mitchell et al., 5 Ark. Rep. 609. Act of Dec. 28, 1840, Pamphlet 118, sec. 8.

That she is entitled to dower in the increase of the slaves follows necessarily from the very nature of the property; and is sustained by numerous authorities referred to above and below in this brief relative to rents, profits, damages, improvement, increased value, &c. Green v. Biddle, 5 Cond. Rep. 384.

The defendants to the suit below were properly joined. Her right to dower could not be fully enforced without them. All the matters in litigation are connected with each other. Hawley v. Cramer, 4 Cowen's Rep. 727. Oliver el al v. Piatt, 3 How. (U. S.) Rep. 401 et seq.

The heirs, upon their cross bill were fully entitled to the decree rendered in their favor; which is sustained by many of the foregoing principles and authorities, and by the following, to wit:

1. At the moment of the ancestor’s death his land descends to, and the title and right of possession vests in, the heir. Hill's Adr. v. Mitchell.et al., 5 Ark. Rep. 609 etseq. Piatt v. Heirs of St. Clair et al., Wright's Ohio Rep. 273. 5 Law Library 128,129. Egner v. McGuire, 1 Eng. Rep. 111. Watkins v. Holman et al. 16 Pet. Rep. 62, 63. Rankin et al. v. Oliphant el ux., 9 Missouri Rep. 244.

2. Slaves descend in the same manner. 5 Ark. Rep. 616 et seq. And act of Dec. 28, 1840, Pamphletp. 118, sec. 8. Gray v. Saf-fold's Adrs., 5 Ark. Rep. 638.

3. The administrator has no right to the possession of the lands or .slaves, or the rents or profits thereof, until he applies to tire Probate Court and obtain? an order to sell, rent or hire out, as the case may require, which order can only be obtained upon a showing to that Court that all the personal estate has been exhausted and that the debts still remain unsatisfied. 5 Ark. Rep. 615 et seq. Mathews v. Mathews, 1 Edw. Ch. Rep. 569. Watkins v. Holman, et al. 16 Pet. Rep. 62, 63. Rankin v. Oliphant &c., 9 Mo. Rep. 244.

4. The allegations of the appellants in their answers, that the personal estate or rather their belief that the personal estate was insufficient to pay the debts is wholly unsustained by the evidence, and must therefore be presumed to be untrue.

5. There is not even a pretence set up in the answers that any showing of such insufficiency was ever made to the Probate Court, and an order for sale or hiring made on such showing.

6. The pretended copies of an alleged order of the Probate Court referred to in the answer is mere nullity, made ex parte and without cause shown, and can avail nothing. Smith v. Dudley, 2 Ark. Rep. 65, 66. McKnight v. Smith, 5 Ark. Rep. 410, 411. Latham v. Jones, 1 English's Rep. 374.

7. Though the lands of the ancestor be incumbered, they are nevertheless the property of the heirs, at his death, until actually subjected to the debts and incumbrances by the personal representative or creditor in some judicial proceeding. Piatt v. St. Clair’s heirs et al Wright’s Ohio Rep. 273. Mathews v. Mathews, 1 Edw. Ch. Rep. 569. Rankin et al. v. Oliphant et ux., 9 Mo. Rep.- 244.

8. The heirs are not only entitled to the possession of the land; but the rents and profits are theirs also. Wright’s Ohio Rep. 273. 5 Cond. Rep. 381.

9. Equity allows an account for rents and profits from the time title accrued; unless under special circumstances; <fcc., as where defendants had no notice of plantiff’s title (which in this case cannot be even pretended.) Green v. Biddle, 5 Cond. Rep. 381; 382; 383, 3S4.

10. Whoever takes and holds possession of land to which another has a better title; whether by disseizin or by permission of a disseizor, is liable to the true owner for the profits which he has received, whether they have been consumed by him or not. Green v. Biddle, 5 Cond. Rep. 384. Biford’s case, 6 Co. Rep. part 2d, p. 52.

11. Where the person in possession is a trustee, guardian, bailiff or agent, or is to be so regarded in contemplation of law or the court, he must account for tire rents and profits from the time that title accrues. Roosevelt v. Post, 1 Edw. Ch. Rep. 579. Combs &c. v. Branch, 4 Dana’s Rep. 548.

12. Even devisees of land, to be divided in future, are entitled' to the rents from the death of the devisor, rents being incidental to the reversion. & Dana’s Rep., 54.8. 5 Law Library, 128, 129.

14. The rents and profits of an infant’s estate taken during minority are subjects of equitable jurisdiction for which' he may have an account taken, even after he is of full age. Patrick et ux. v. Woods, 3 Bibb Rep. 29.

14. The possessor of an infant’s estate shall account for rents and profits from the time infant’s title accrued. 3 Bibb’s Rep. 29.

Matters set up in. the answer of appellants by way of avoidance, where replication has been filed, must be proved, or they availno-thing. Simpson v. Hart, 14 John. Rep. 63, 74. Green v. Vardi-man,2 Blaclcf. Rep. 329. Payne v. Coles, 1 Munf. Rep. 373. Ballingor v. Worley, 1 Bibb Rep. 196. Reading v. Ford’s heirs, &fc.,ib. 340. Wilson v. Carver et al. 4 Hayn. Rep. 92. Axbdley v. Awdley,2 Vernon’s Rep. 194. Butler’s Nisi Prius 239. Atwa-ter v. Fowler, 1 Edw. Oh. Rep. 420. U. S. Bank- v. Beverley et al., How. ( U. S.) Rep. 151. 2 Edw. Ch. Rep. 210.

An allegation in the answer of an administrator, that tire personal estate of his intestate is insufficient to pay his debts, amounts to nothing unless proved. U. S. Bank v. Ritchie et al., 8 Peters. Rep. 144.

Dower may be assigned to a widow in lands held by her husband and others as joint tenants or tenants in common. S'imth v. Jackson, 2 Edw. Ch. Rep. 36. Van Gelder v. Post, ib. 579, 580. Mathews v. Matheios, 1 Edw. Ch. Rep. 567.

Widow is entitled to the mansion of her husband and the farm attached to it “free of all rent,” until her dower be assigned to her. Rev. Stat. 339, sec. 18. 4 Kent’s Com. (3 Ed.) 62. And therefore a freehold for life unless defeated by act of the heir. 4 Kent 62.

It is the duty of the heir to assign dower in the land: therefore no demand is necessary. Rev. Stat. 340, sec. 29.

On a bill against an executor for an account he answered, admitting that testator left 1100 pounds in his hands, and that he had afterwards paid it to the testator, the Court took the admission against him but required him to prove the pa3unent — the matter in avoidance. Buller’s Nisi Prius 237.

The allegation in the answers of die administrators set up in avoidance, that the estate of intestate was insufficient to pay its debts, and that such an amount was allowed against them as administrators, are matters which can only be made appear by the records of (lie Probate Court; and even on that ground must be proved by the record before they can avail.

The supposed order of tire Probate Court proves nothing. Because as it does not appear, on what application or facts it was based, this Court can presume nothing that does not appear on its face. And the administrators having possession of the slaves as trustees, and the statute authorizing them to be hired out under the direction of the Probate Court, the presumption of law is that the order was obtained merely as a protection to the administrators for the benefit of those legally or equitably entitled — the widow and heirs — -and not for the purpose of subjecting the slaves or the proceeds to the payment of debts.

Johnson C. J.

This was a suit instituted on the Chancery side of the Circuit Court of Conway county, by Mary E. Menifee, who represents herself as the widow of Nimrod Menifee, deceased, the object of which was to have her dower assigned in the estate of her deceased husband. .The first point made', and one that meets us at the threshhold, relates to the jurisdiction of the Court.1 It is contended that since the adoption of the State Constitution the jurisdiction of questions of dower is confined solely and exclusively to the several Probate Courts. In support of this position the tenth section of sixth article of the Constitution is referred to and relied upon. This section of the Constitution declares that4‘there shall be elected by the Justices of the Peace of the respective counties, a presiding Judge of the County Court, to be commissioned by the Governor, and hold his office for the term of two years and until his successor is elected and qualified. He shall in addition to the duties that may be required of him by law as a presiding Judge of the County Court, be a Judge of the Court of Probate, and have such jurisdiction in matters relative to the estates of deceased persons, executors, administrators and guardians, as may be prescribed by law, until otherwise directed by the General Assembly. ’ Under this constitutional provision, the Leg ¶ islature passed an act upon the subject'of dower, the 32d section of which provides that, “if dower be not assigned to the widow within one year after the death of her husband, or within three months after demand made therefor, she may file in the Court of Probate, with the Clerk thereof, her petition setting forth what lands there are, their description, and probable value, and what slaves and their description and probable value, of which she claims dower. ’ ’ Dower may be recovered by bill in equity, as well as by action at law. The jurisdiction of Chancery over the claim of dower, has been thoroughly examimed, clearly asserted, and definitely established. It is a jurisdiction concurrent with that of law j and when the legal title to dower is in controversy, it must be settled at law; but, if that be admitted and settled, full and effectual relief can be granted to the widow in equity both as to the assignment of dower and the damages. The equity jurisdiction was so well established and in such exercise in England that Lord Loughborough said “that writs of dower had already gone outof practice.” 4 Kent's Com. p. 71 and 2, and the authorities there cited. In addition to the legal remedies at law and in equity, the surrogates, in New York, are empowered and directed upon the application of either the widow, or of the heirs, or owners, to appoint three freeholders to set off by admeasurement the widow’s dower. N. Y. Revised Statutes, Vol. 2,488,492. Coates v. Churer, 1 Coto. 460. We presume it will not be denied that Chancery had jurisdiction of dower before the adoption of the Constitution oí Arkansas, and if so, it' is equally clear that it still retains it; as there is nothing in that instrument repugnant to or inconsistent with it. The jurisdiction was conferred upon the Probate Court as a matter of convenience, and with a view to despatch, but of course to be exercised alone in such cases as were plain and simple in their character, and in which that Court could afford full and complete relief. The remedy given by the Constitution is clearly cumulative and was never designed to impair or in any manner affect the ancient jurisdiction of the Courts of Chancery. It is clear from the facts of this case, as disclosed by the bill, that the Probate Court could not afford the Relief sought. . It appears from the bill that a complicated account is to be settled between the parties, that an irregular proceeding in another Chancery cause is necessary to be passed upon and confirmed, and that a portion of the land of which the intestate died seized, was situated in another and different county from that in which this suit was instituted. The complicated nature of the matters in controversy could not be settled in any other fortun, and on this ground alone' Chancery has jurisdiction. 5 John. Ch. Rep., 482, Swaine v. Perine. But for the Statute declaring that tire Probate Court may entertain jurisdiction of dower, the Courts of equity would have had complete, unquestioned, and sole jurisdiction. Does the Statute which gives the Courts of law cognizance in such cases negative and exclude the Courts of equity from their accustomed and appropriate jurisdiction? It seenrs more proper to say, that as the Statute has not negatived the former jurisdiction of Courts of equity, it has done no more than to give to tbe Courts of law a concurrent, not an exclusive jurisdiction. We are clear therefore that no doubt can exist upon the subject of jurisdiction.

Having thus determined the question of jurisdiction, we will now take up the several errors in the order in which they are stated.

The first error complained of is that “the Circuit Court adjudicated and decided that the said Mary E. Menifee, the rvidow of Nimrod Menifee, deceased, had by larv a right of dower in money arising from sales of the personal estate of her deceased husband, made by the administrators of said estate, and is entitled to one-third part thereof absolutely as her dower in such personal estate; and decreed that such administrators should pay the same to her.” The argument in support of this assignment of error is that the Avidow’s right of doAver attaches to, exists in, and must be taken out of, the specific thing of which the husband Avas seized during the coverture, whether lands, slaves, or other personal property, and may be recovered thereout, into Avhose possession soever the same may have passed, but cannot in any instance be recovered out of the moneys received upon the sale of such estate, whether real or personal, or made by the heirs, or executor, or administrator. The 20 section of the 52 ch., of the Revised Statutes declares that aAvidoAV shall be entitled, as a part of her dower to the one-third part of the slaves Avhereof the husband died seized or possessed, during her natural life, and one-third part of the personal estate, in her own right. This Court in the case of Hill's Ad'rs v. Mitchell et al, 5 Ark. Rep. 612, holds that “these words create a positive grant, giving dower in the slaves during her natural life, and in the personal estate unconditionally. She holds the slaves in the same manner as she does the realty, and after her death they go to the heir or devisee, and the personal estate she takes in her own right absolutely. Her dower in all these three kinds of estate is given by the same or similar terms, and stands upon the like principle. She is declared to be endoAved of slaves and personal estate in the same manner as of lands. It is admitted that her dorver in lands is independent of the rights of creditors, and this being the case, if she takes the slaves and personal estate in the same manner, must she not also hold them by way of lien upon the estate of her husband? 'Dower is created by law, and it certainly is competent for the Legislature to enlarge or limit the estate. When they speak of dower in slaves and personal estate they mean precisely the same thing, as to the vested rights of the wife, as they do in reference to land. They have enlarged the common law definition of the term dower and made it embrace slaves and personal estate; and if she is endowed of these she must hold them as a lien created by law, of which she cannot be divested by other accruing rights. Now, the interest of dower is a vested interest by law, upon the marriage, and although there is no express provision in the Statute declaring that she takes slaves and personal estate against creditors and purchasers, still their being dower gives her that preference.” It is also held in the same case, at p. 617, that “upon the death of the intestate the personal property goes immediately into the hands of the administrator, and. he holds that part which is tangible and corporeal as trustee for the widow, until her dower is assigned in it. . The widow’s right of dower is not defeated by the administrator’s having possession of the personal estate, for he takes the property that belongs to her as trustee and holds it for her benefit.” We will now proceed to apply the principles here laid down to the case under consideration. In the case of Oliver and others v. Piatt, 3 Howard's S. C. Rep., Mr. Justice Stout, in delivering the opinion of the Court, said, “It is a clearly established principle in equity jurisprudence, that whenever die trustee has been guilty of a breach of the trust and has transferred the property by sale or otherwise to any third person the cestui que trust has a full right to follow such property into the hands of such third person, unless he stands in the predicament of a bona fide purchaser, for a valuable consideration, without notice; and if the trustee has invested the trust property or its proceeds, in any other property into which it can be distinctly traced, the cestui que trust has his election either to follow the same into the new investment, or to hold the trustee personally liable for the breach of trust.” True it is, that this Court in the case of Hill's Administrators v. Mitchell et al. already referred to, held that “the wife’s dower of the personal property, like that of the land, and slaves, must be carved out of the specific estate of which the husband was seized at the time of his death, and that if she has been deprived of it as the lien attaches to the property, it can be followed wherever it may be found, and subjected to her claim unless by her own laches she has abandoned or waived her right.” This was not intended to convey the idea that she was confined to the specific thing, and that she was bound to pursue it, or lose her rights. The whole scope of it was to show what was meant by the term “personal estate” as used in the Statute, tod to distinguish it from mere choses in action, which are but evidences of debt due the husband, and which are not corporeal and tangible property, and over which the husband does not ex-' ercise dominion at the time of his death. If the law did not hold the administrator personally responsible in case he should waste or convert the personal estate, the widow’s share of that portion of the estate might and doubtless would, in many instances, be rendered wholly unavailing to her. Administrators would be placed in afar better situation than any other class of trustees, as they would have it in their power to waste or convert to their own use a large proportion of the trust fund, and to set the cestui que trust at defiance. It is only necessary to state such a proposition to see its utter fallacy and ahsurdity.

The second error is that “the Circuit Court adjudicated and decided that the said Mary E. Menifee, as widow of Nimrod Menifee, deceased, is by law entitled as dower to the one-third part of the rents of the real estate of which said Nimrod died seized, exclusive of the principal dwelling and farm occupied by him at the time of his death, and also of the hire of the slaves of which he died seized, in the hands of the administrators of his estate; which rents and hire accrued after his death; and adjudged and decreed that said administrators should pay the Same to said Mary as parcel of her dower in and of the estate of her said husband.” As to the account against the heir for mesne profits the widow is entitled to the same from the time her title accrues, and unless some special cause be shown courts of equity carry the accounts back to 'the death of the husband. 4 Kent’s Com., p. 70. Oliver v. Richardson, 9 Ves. 222, also Swaine v. Perine, 5 John’s Ch. Rep. 482. But the 139th section of the administration law provides that “until the widow’s dower be apportioned, the Court shall order such sum to be paid to her out* of the hire of the slaves, and the rent of the real estate, as shall be in proportion to her interest in the slaves, and the real estate.” This section admits of but one interpretation, and that is that the sum to be paid to her out of the hire of the slaves and the rent of the real estate is to be considered and received by her in lieu of her dower interest. .This is not to be so construed as to impair in any manner the title to the specific property, but simply to deprive her of the accruing profits up to the time of the actual assignment. If the 18th section of the dower act, which provides that “If the dower of any widow is not assigned and laid off to her within two months after the death of her husband, she shall remain in and possess the mansion or chief dwelling house of heríate husband together with the farm thereto attached, free of all rent until her dower shall be laid off and assigned to her,” stood alone, there would be at least a possibility to doubt whether the provision made in it was designed as a substitute for the proceeds of her dower interest up to the time of its actual assignment 5 but when the section referred to in the administration law is taken in connection with it, we think that such was the intention of the Legislature is clear and conclusive. These statutes we think furnish a good. and satisfactory reason why a court of equity would not carry the account back to the death of the husfeand, unless it should appear that the widow had not received such sum out of the hire of the slaves and the rent of the real estate as shall be in proportion to her interest in the slaves and the real estate. The record wholly fails to show that she has received either the one-third of the rents and profits of the real estate and slaves, or such sum out of the hire of the slaves and the rent of the real estate, as would be in proportion to her interest in the slaves and real estate. In the absence of such showing, we think there can be no good reason why the accounts should not be carried back to the time of the death of the husband. There is no error therefore in this branch of the decree. But it is contended that she is not thus entitled, in addition to the mansion and farm of her late husband. The statute provides that a widow may tarry in the mansion or chief dwelling house of her husband for two months after his death, whether her dower be sooner assigned her or not, without being liable for any rent Tor the same; and in the meantime she ‘shall have a reasonable sustenance out of the estate of her husband; and that if the dower of any widow is not assigned and laid off to her within two months after the death of her husband; she shall remain in and possess the mansion or chief dwell-ling house of her late husband together with the farm thereto attached; free of all rent; until her dower shall be laid off and assigned to her. It is the duty of the heir at law of any estate of -which the widow is entitled to dower, to lay off and assign such dower as soon as practicable after the death of the husband of such widow.

The third error assigned is that the Circuit Court decided that the said Mary E. Menifee was the rightful and equitable owner of certain cattle given to and'received into her actual possession during her co-verture, and should retain and keep them as her absolute property against all claims of the administrators, heirs, distributees, and creditors, of the estate of her deceased husband. The propriety of the decree upon this branch of the cause will necessarily depend upon the evidence. The answer of Mrs. Menifee to the interrogatory in the cross bill touching the matter of the cattle is, that she had a Durham heifer in her own right, and that she was advised the Supreme Court of the State had so decided; that said heifer had then increased three in number, and that she supposed the four to be of about the-value of forty dollars. She at the same time denied that they were subject to the debts of the deceased, or to distribution, but insisted that they were her own individual property. Thomas S. Haynes testified that Doctor Menifee at the time of his death had a Durham cow and calf, but that he did-not know their value. Alexander Mink also testified that Menifee had a Durham cow and calf at the time of his death, but that he did not know her value, but that at Menifee’s sale a cow inferior to her was sold for a hundred or a hundred and five dollars. The Court excluded the evidence of Mink as to the value of the cow by comparison with others at Menifee’s sale. The witness then being asked what the cow was then worth, said he did not know. This was all the evidence in-relation to the Durham cattle. The answer of Mrs. Menifee must be considered as true unless it has been overturned either by two witnesses or by one witness and corroborating circumstances. Now it is not perceived that the testimony of the appellants’ witnesses impeaches in the most remote degree the answer of the appellee. She answered that she had a Durham heifer in her own right; one of the witnesses introduced to defeat her claim stated that Doctor Menifee, at the time of his death, had a Durham cow and calf, but that he did not know their value. The other stated that he had a Durham cow and calf at the time of his death; that he did not know her value, but that at Meni-fee’s sale a cow inferior to her was sold for a hundred or a hundred and five dollars; and being asked what she was then worth, said that he did not know. This testimony could not possibly affect the answer; as, even supposing it had established the value of the cattle, there was not a particle of evidence going to show that she had retained or converted them to her own use. It is wholly immaterial how many Durham cattle the intestate had in his possession at the time of his death, unless it appeared in proof that the widow had either-kept or converted them to her own use. Upon this essential point the witnesses are wholly silent. Whether the cattle in controversy have already been decided by this Court to be the property of the widow or not, we do not judicially know, but we are fully satisfied from the facts as disclosed in this case that her title is clear and unquestionable.

The fourth error complained of is that the Circuit Court decided that Mrs. Menifee could rightfully and lawfully keep and hold a certain gold watch given to her by her husband, the said Nimrod Meni-fee, upon the payment by her to the administrators of his estate of the value thereof as ascertained and fixed by said Court from testimony adduced in respect thereto. A material part of the suit was for the adjustment of accounts both of the original bill and the cross bill of the administrator, and we therefore consider that all the matters set up in the bills and answers were rightfully passed upon by the Court. The appellants themselves drew the watch into controversy, and they cannot complain because the Court adjudicated upon it. The appellants expressly called upon the appellee to answer and say whether the intestate at the time of his death was not possessed of a gold watch, and if so, to state its value, and also whether she had not retained and still retained it in her possession. She answered that she still retained the watch referred to, and supposed its valué to be from sixty to eighty dollars. It certainly would not be seriously contended that the appellants could recover the specific property by inserting the interrogatory in a cross bill, and they having succeeded in setting off the value of the watch against her demand, there is no ground left for complaint.

The fifth cause assigned for error, is that the Circuit Court decided that by law the heirs at law of the said Nimrod Menifee, deceased, were entitled to the remaining two-thirds of the rents of tire land and hire of the slaves of which he was seized at the time of his death, which has accrued since his death and been received by the said administrators of his estate and remains in their hands after the payment of th'e other one-third part thereof to the widow as parcel of her dower in and out of the estate of her said husband. This part of the decree is not for the distributive share of the heirs after the assignment of the dower and the payment of debts, but seems to have been based upon the supposition that they were entitled to the possession of the land and slaves from the death of the ancestor, and that they were as a necessary consequence entitled absolutely and in their own right to all the rents and profits which had or might accrue up to the time that the administrator should obtain an order from the Probate Court to sell or rent the one, or hire or sell the other. If that portion of the opinion in the case of Hill’s administrators vs. Mitchell et al., already referred to, which bears upon this branch of the decree, should be recognized as authoritative and binding as a judicial sentence, it is possible that such a construction might be placed upon it as to warrant the decree in favor of the heirs. The Court in that case argued that because the law cast the descent of lands and slaves upon the heir and also required him to assign dower, that therefore he was entitled to the immediate possession. We do not conceive the facts involved in that case raised the question now under discussion, and as a matter of course all that is there said in relation to it, is nothing more than argument upon a purely abstract proposition. The only question legitimately involved in that case was whether the widow v?as entitled to her dower in the .personal estate óf her husband independent of his debts. It is clear, therefore, that all there said in regard to the Tights of the heir to enter into the possessión of and control the lands and slaves is mere dicta of the judges, and consequently is not entitled to the character and authority of a judicial sentence. But the same doctrine is recognized in the case of Morrill et al. vs. Menifee's administrators (5 A. R. p. 629), where the question of the right of possession is directly and broadly presented. In this case, Howard and others as administrators of Nimrod Menifee, sued Boyer and Morrill for the possession of a lot of land in Lewisburg, alleged in the declaration to have belonged to their intestate, and to which they claimed right of possession generally as his administrators. The Court sitting as a jury, found for the plaintiffs, and judgment was pronounced accordingly. The evidence produced by the plaintiffs was, title in their intestate, and possession by the defendant, when suit commenced. This Court reversed the judgment of the Circuit Court, upon the ground that the Court had decided that an administrater could maintain an ¿ction of ejectment against the tenant in possession. That this is the law of that case will of course be conceded, but we feel constrained from a sense' of duty and our own clear convictions to depart from the doctrine there laid down as not being warranted by a fair and legitimate construction of the Statutes from which it is confessedly drawn. The administrator, by the 71 sec. of the administration law is authorized, if his intestate died “leaving a crop ungathered or in an unfinished state so that the estate would suffer loss from the want of care and additional labor” until the meeting of the Court of Probate, to procure such labor to be performed as may be indispensable to the saving such crop, and the Court of Probate may, in such cases, au-thorise such further labor to be performed as the interest of the estate may require, and all sums of money paid for any such labor, if approved by the Court, shall be allowed as expenses of administration. This we think clearly shows the rights of the administrators to the possession of the land in cultivation at the death of the intestate; because it being made his duty to enter upon and cultivate the soil, if the interest of the estate demands it, the performance of his duty constitutes him the actual possessor thereof, for such time at least as may be necessary to complete the cultivation of the crop and preserve it until it is fully matured, severed from the land and taken away: and the 139 sec., which provides that until the widow’s dower be apportioned the Court shall order such sum to be paid to her out of the hire of 'the slaves, and the rent of the real estate, as shall be in proportion to her interest in the slaves and the real estate, appears to us to imply most clearly the right of the administrator to the rents and profits of the real estate as well as the hire of the slaves, which is expressly given to him by the 70th section; because it cannot be reasonably doubted that in directing such payment to be made to the widow, the law contemplates that it shall be made by the administrator, and thus enjoins upon him a legal duty, and at the same time, unless he is entitled to the possession both of the slaves and real estate, withholds from him the power necessary to enable him to perform it; for it surely cannot be contended that he may lawfully lease the lands and receive the rents without having either the possession or right of possession therein; and yet such is indispensable to the performance of his duty. These provisions of law certainly indicate clearly that the administrator has an interest in and right to the possession of the lands of his intestate. But there are other provisions which appear to us to establish his right conclusively. The 72d sec. declares that “ all improvements made on the public lands of the United States by a testator or intestate, shall be assets in the hands of the executor or administrator, unless the same may have been disposed of by will:” and the 145th section enacts that lands and tenements shall be assets in the hands of every executor or administrator for the payment of the debts of the testator or intestate.” Now while it is perfectly manifest that the law of descent and distribution casts the inheritance upon the heir, subject to the payment of debts and the widow’s dower, it is equally clear that the executor or administrator is the legal representative of the whole estate of the deceased, not taken by the widow as dower, and for the support of herself and family, for the special purpose of collecting and preserving it, and satisfying the personal obligations of his testator or intestate, all of which the law malíes it his duty to perform, if the estate is sufficient therefor, and to distribute the residue if any. And it cannot be doubted, that the whole of the real estate exclusive of dower is charged with the debts of the intestate; and therefore, in the absence of other legal authority, we consider it clear, upon well established legal principles; that the principle would carry with it all incidental rights attached to it, of which character we deem the rents and profits; and although the law does not in express terms, declare that the administrator shall have the possession of lands, yet if the lands are, as the Statute explicitly declares they shall be, unconditionally and unqualifiedly, assets in his hands for the, payment of debts, to make them entirely and completely answerable from,the death of the intestate, the administrators must, of necessity, have their possession from the heir until debts are satisfied; otherwise the creditors would lose the intermediate rents and profits, which we cannot believe it was designed should go to the heir, while the estate out of which they spring, is subject to the claims of creditors.” This is substantially the argument of the Chief Justice in his dissenting opinion in the case of Morrill et al. vs. Menifee's administrators, and we fully concur in the principles there stated. We consider the proposition clear and incontrovertible that although the law casts the descent of lands and slaves upon the heir, yet he is not entitled to the possession of either imtil the debts due from the estate are all paid and the administration fully closed and determined. We are therefore of opinion that the entire decree of the Circuit Court in relation to the widow’s dower is right and proper, and ought to be affirmed, but that portion decreeing the other two-thirds to the heirs of the said Menifee, is erroneous, and consequently ought to be reversed.

The sixth error assigned is, that the Circuit Court decreed that the said Mary E. Menifee, as the wife and widow of said Nimrod Meni-fee, deceased, was, and is entitled to dower in and out of the slaves of which the said Nimrod Menifee died seized; not only against his heirs at law and the distributees of his estate, but also his creditors. The point made here was fully discussed and determined in favor of the decree of the Circuit Court whilst we were passing upon the first assignment. The doctrine is there fully discussed and settled, and we entertain no doubt of its being strictly correct. Wé conceive it wholly unnecessary therefore to reinvestigate it in this place.

The seventh error complained of is, that the Circuit Court decreed that the said Mary E. Menifee was by law entitled to dower of and in the issue and increase bom after the death of her husband the said Nimrod Menifee, and after the institution of this suit, of certain female slaves of which her said husband died seized. Upon the principle already enumerated we conceive that there cannot exist a doubt as to the strict’ propriety of this portion of the decree of the Circuit Court. The widow’s dower is predicated upon the idea of a lien created by law on the property of the husband by virtue of the marriage. If it attaches by way of lien upon the mother, it is clear and we" think incontrovertible that it operates in the same way upon the issue, though born after the death of die husband. If the mother had fallen to the lot of the widow upon the assignment of dowpr, and the issue had been subsequently born, it is not to be questioned but that the widow would have been entitled to the offspring. We are unable to discover any difference in principle between the two cases. Her right accrued at the death of her husband, and though her proportion of the negroes was not set apart and designated by an actual assignment, yet her title was clear and fixed and would consequently attach itself in tire same proportion to the issue, the instant it came into being.

The eighth error charged is that the Circuit Court decided and decreed that the slave Amelia, in the proceedings mentioned, of which the said Nimrod Menifee died seized, was not the property of said Ninlrod, and did not upon his death pass to, or vest in either his heirs, or the administrators aforesaid, and is not, in any way, assets in the hands of the latter, nor subject to his debts. The response of Mrs. Menifee to the interrogatory of the administrators of her husband, is substantially as follows: that by the will of 'her deceased father, his slaves were bequeathed to her mother during her natural life, and the girl referred to in the interrogatory was sent from Kentucky by her mother, in the care of Dr. Menifee, to her sister, Mrs. Ball, who lives near Lewisburg, to assist and wait upon Mrs. Ball; that after the girl came out here she was unhealthy and was still so; and that during the Doctor’s life time she was sometimes taken to his house to be administered to, but that since his death she had generally been with Mrs. Ball, though sometimes with respondent; that said girl did not belong to said Nimrod, at the time of his death, or before, nor Is she subject to his debts, or to distribution, as she was advised. The value of the girl slie supposed to be about four hundred dollars, and her annual hire about forty dollars. In addition to the answer of Mrs. Menifee it was also argued by the parties that the negro girl mentioned in the answer of Mason, Howard and Menifee was devised by a Mr. Dunn to his Avife for life, and then to complainant, Mary E. Menifee, the said Dunn being her father. The testimony introduced by the appellants touching the title of the negro girl, does not conflict in the slightest manner with the answer of Mrs. Menifee. The whole purport of' it is that Doct. Menifee brought her from Kentucky; that ho had her most of the time in his possession, and that lie might by possibility have paid taxes upon her. This might all be conceded, and yet it could not even raise a fair presumption against the truth of the answer. If the girl was devised to her mother during her natural life, and she was still living, it is very dear that any act of Doct. Menifee, even taken in the strongest possible light, could not vest a legal title in him. We,are therefore satisfied that the negro girl Amelia constituted no part of the estate of the intestate, and that the decree in regard to her was right and proper.

The ninth error charged is, that it appears by the record that the said Mary E. Menifee, in her bill of complaint has united and joined rights of action which, by law and the rales of pleading and practice in Courts of Chancery, cannot lie joined in one bill of complaint or petition, and therefore, by the adjudication, decision, and decree of said Circuit Court, has obtained partition of certain lands held in joint tenancy during her coverture by her husband, the said Nimrod Meni-fee and one David Thompson, and obtained dower of and in such portion of the lands so held in joint tenancy, as are by said decree set apart and decreed to the heirs at law of her said husband, to be held by them.. If the widow is entitled to dower in the individual estate of her deceased husband, we apprehend there could be but little diversity of opinion upon the subject of jurisdiction. The law abhors multiplicity of suits, and it is.clear that in order to afford the widow full and complete relief, in case she had the right, it was absolutely necessary to join the heirs of Thompson, and to obtain a decree for a division of ilic joint property. According to the law, as it anciently stood, it was necessary that the husband should have had seizin of tlic land in severally at some time during (be marriage, to entitle the wife to dower. No title to dower attached on a joint seizin. The mere possibility of flic estate being defeated by survivorship prevented dower. The old rule went so far as to declare, that if one joint tenant aliened his share, his wife should not be endowed, notwithstanding the possibility of the other joint tenant taking by survivorship was destroyed by the severance, because the husband was never sole seized. The6iAsec. of chap. S2of the Revised Code declares that* “all survivorships of real and personal estate are forever abolished.” It is clear that under this Statute the first reason assigned why the widow is not dowable of that portion of her husband’s real estate, which is held jointly with another, cannot prevail, and we think that the second, if not expressly, is at least impliedly negatived and destroyed, by our Statute, by which it is provided that the widow shall be endowed of the third part of all (he land whereof her husband was seized, of an estate of inheritance at any time during the marriage, unless the same shall have been relinquished in legal form. It is not denied but that the intestate was seized either in law or in fact of the joint estalc, or that it is an estate of inheritance. This Statute is certainly broad enough to embrace all estates of inheritance in lands, whether the seizin be joint, or several; and this being the case, the widow is clearly entitled to her dower.

The tenth error assigned is, that by the record it appears that the' said Mary E. Menifee exhibited her said bill of complaint,, or petition for dower, of the estate of the said Nimrod Menifee, her deceased husband, in the Circuit Court aforesaid, and that said Court took cognizance and proceeded thereupon to decree to her dower of, and in said estate, whereas, by the law of the land, the exclusive cognizance of such bill of complaint or petition for dower, is vested in the Court of Probate. It is unnecessary to discuss the merits'of this assignment here, as the question of jurisdiction has already been examined and settled in a previous part of this opinion.

The eleventh and last error charged is, that the said Mary E. Men-ifee,. by her bill of complaint, seeks the recovery of dower in and out of lands, of which her husband, the said Nimrod Menifee, died seized, a portion of which are situate in the county of Conway, and an-oilier portion thereof in the coiufííy of Perry, consisting of separate and distinct tracts of land lying in each of said counties; whereas, by law, dower in lands situated in a county other than that in which the petition is exhibited, cannot be recovered, decreed or assigned thereupon. This point has, also, been settled, when we were upon the question of jurisdiction. Upon a full and patient examination of every point raised by the record, wc are clearly of opinion that the decree herein rendered by the Circuit Court is erroneous and ought to be reversed.