| W. Va. | Jan 15, 1869
John Engle died on the 18th of October, 1865, having but a short time previous sowed a crop of grain upon his land, leaving a will. He devised hi3 lands to his four sons, subject, however, to his wife’s dower right in the same. The crop of grain then growing upon the lands devised was severed from the freehold, by the executor, and sold on the 1st day of October, 1866,-for the sum of 2,756 dollars and 45 cents, after deducting all the expenses of harvesting the crop, &c.
The widow claims from the executor the sum of 918 dollars and 81 cents, that being a third of the net proceeds of the crop. To recover this amount she instituted an action of assumpsit. The facts were agreed and appear in the record. The questions of law arising upon these facts were
By the common law the growing crop is a part of the freehold and goes with the land on sale or devise of the latter. There are exceptions, however, in favor of husbandry and relate to emblements; but the exceptions cease with the reason and policy on which they are founded, and the general rule is unquestionable.
Bower is the widow’s last plank in her shipwreck, and is given by the common law ad suslationem uxoris et educationem liberorum, for the sustenance of herself and the education of her children.
Accordingly Chief Baron Gilbert tersely said, “If Baron sows land, dies before severance, the wife shall have the third part of the land so sown for her dower, for she shall not stay for her subsistence a whole year till the corn be removed.”
As the title to dower is consummated by the husband’s death, when the wife is endowed she is in from the death of her husband, and, like any other tenant of the freehold, she takes upon recovery whatever is then annexed to the freehold, whether it be so by folly, mistake or otherwise. 4 Kent, 66.
Under the operation of the statute, which gives to the widow the right to hold, occupy and enjoy the mansion and curtilage without charge until dower is assigned her, the widow is by law ’deemed in possession as a tenant in common with the heirs to the extent of her right in dower; and her right of entry does not depend upon the assignment of dower, which is a mere severauee of-the common estate. Though in point of tenure she holds of the heir or reversioner yet the widow claims paramount to the heir. Her estate is a continuation of that of her husband, and, upon assignment, she is in by relation from her husband’s death. 4 Kent. 62.
By the statute, Code 1860, chap. 110, sec, 1, the widow
From the foregoing it is clear that if the growing crop passed by the will to the devisees they must account to the widow for her third of it, under the statute. If it did not, by the common law, she was equally entitled as against the devisees to one-third of the land, with the crop growing upon it, for her dower.
I think, however, that the devise only passed to the devi-sees, the land and growing crop subject to the widow’s dower therein.
And as upon the death of the husband the widow was entitled to be endowed of one-third of the land in value with crop then growing on it, so if the crop be severed before the assignment of her dower she is entitled to be endowed of the land in like manner, and of one-third of the crop thus severed, for by the severance the estate had been diminished in value by the amount of the crop. It has been said that her dower might have been assigned in that part of the land having no crop on it, but that does not alter the case, for even then she would get her share in value of the growing crop, which would have been estimated in adjusting the relative values of the parts.
In every view of the case then the widow here was entitled to her third of the net proceeds of the growing crop.
Judgment reversed.