66 W. Va. 388 | W. Va. | 1909
Lead Opinion
Rebecca Reynolds, widow of John T. Reynolds, deceased, brought her suit in equity in the circuit court of Taylor county to recover her dower in the proceeds of lands which had been sold under decree of court to pay her husband’s debts. On the 5th of April, 1906, the cause was heard upon the pleadings; and upon such hearing, her bill was dismissed. From this decree she has appealed.
The facts, as they appear from the pleadings, are as follows: Husband of plaintiff was seized, during coverture, of four hundred and sixty-three acres of land. In a suit by Moran against Pruntytown Oak Harness Company and others, this land was Sold to pay the debts of the husband, and was not sufficient to pay all the debts. Pending that suit the husband died, but his widow was not made a party. The land was divided into parcels, the coal severed from the surface, and sold in separate parts. John T. Whitescarver purchased 81 acres at the price of $3,-750.00; Annie Boyers 147 acres at the price of $4,000.00; Geo. W. Reynolds 236 acres at the price of $8,025.00; and John T. MeGraw purchased the coal, 114 acres, underlying said land, and mining rights, at the price of $8,000.00. The only" contest now is as to plaintiffs right to dower in the 87 acres bought by Whitescarver and in the coal purchased by MeGraw and afterwards conveyed by him to the Maryland Goal 'Company., The bill alleges that settlement has been .made with the purchasers of the other tracts.
Before the suit iras brought to sell the land John T. Rey-
At the time one of said trust deeds was given the husband was insolvent; and, by virtue of section 2, chapter 74, Code, the court held that deed of trust void as to the preference attempted to be created by it, and held it to have been given for the benefit of all of his creditors pro rata. Counsel for ap-pellees insist that because the wife signed and acknowledged this trust deed, she thereby released her right to dower, not only in so much of the land as was necessary to pay the debts expressly secured, but in all'the land, because it did not bring enough to pay all the debts. We do not think the statute, above referred to should be so construed as to deny the wife the right of dower in the surplus proceeds of the land over and above the amount necessary to pay the debts which the trust deeds were originally designed to secure. The purpose of this statute is to prevent an insolvent debtor from preferring one, or more, of his creditors to the detriment of others. It affects the intention only of the insolvent grantor, and operates to change his purpose by ascribing to the trust a different and a wider scope than the debtor designed.it to have; the estate attempted to be conveyed is permitted to pass by the trust deed, but the trust is changed; it is declared to be for the benefit of all creditors instead of for the persons only attempted to be preferred. . No.reference whatever is made in the statute to
'Counsel for the Maryland Coal Company insist that, as the coal purchased by it was in a state of nature, no mines being opened on it at the time it was sold, and none being opened since, the Avife is not dowable in it in kind; and, not being dowable of the coal in kind, she can not have dower in the srirplus proceeds derived from its sale. This is not tenable. The wife's right to dower does not depend upon the kind, or character, of the real estate of which the husband happened to be seized in fee during coverture. Section 1, chapter 65, Code, says she shall be endowed of “one-third of all the bus-
It is argued that, because the wife can receive no benefit from dower assigned to her in an unopened seam' of coal, she is not dowable in it; and that, not being dowable in such coal in kind, she is not dowable in the proceeds derived from the sale of it. But her right to dower is not made to depend upon the use she may be permitted to malee of the real estate; it depends only on the fact that it is “real estate;” and even though she may not be able to make any beneficial use of it, whatever, and even though the taxes may be a burden to her, still she is entitled to dower; and being entitled to dower in the unopened seam of coal, simply because it is real estate, she is'entitled to dower in the surplus proceeds derived from its sale.
.Plaintiff is entitled to recover dower in the surplus proceeds of sale over the debts expressly named in the two- trust deeds which'she signed and acknowledged, after the payment of costs of the suit in which the land was sold, and expenses of sale.
The decree of the circuit court of Taylor county, pronounced on the 5th of April, 1906, dismissing plaintiffs bill, will be reversed, and the cause will be reinstated and remanded for further proceedings according to the principles herein stated, and further according to the principles governing courts of equity.
Reversed and Remanded.
Dissenting Opinion
(dissenting in part):
I agree to the matter decided by the decree. I' do not agree to the proposition that a widow may be endowed of coal in place. Of course, if the husband owned the corpus including coal, when her dower is assigned, the surface included coal; but slie cannot work the coal by mines made by herself. If mines had been opened in her husband’s life, or by heirs before assignment of dowery, she would be dowable of them. But suppose the husband died owning only the coal. Is she dowable of that? I say no. What good would it do^ her? She could work mines opened in her husband’s life; but she could not for the first time open them. As far back as Brac-ton he stated the principle as regulating dower that a widow cannot claim a thing in dower, unless she may use and enjoy it "sine vasto, exilio ei destructions,” without waste, expulsion (forfeiture) and destruction. Scribner on Dower 206; 2 Minor’s Inst. 128. I agree to the widow’s participation in the money surplus because she united in deeds of trust having priority over her, and she is dowable of the money surplus by force of our statute. Donahue Oil & Gas, 64; Ohio Oil Co. v. Indiana, 177 U. S. 190.
