—An estate in dower is a continuation of *514tbe estate of tbe husband and upon his death the right thereto becomes consummate. By the common law the heir, though within age, might assign dower and the assignment would be held good, subject to be corrected, if excessive, by writ of admeasurement of dower. By B. S., c. 110, § 22, the guardian of a minor heir is empowered to assign and set out dower. The same right on his part has been held to exist at common law. Jones v. Brewer, 1 Pick. 314. The evidence shows dower to have been legally demanded, and the action is properly brought against the defendants as tenants of the freehold.
The elder title to dower must prevail. The seizin of the demandant’s husband was prior to that of the tenant’s father.' Her right to be endowed takes precedence of that of his widow. Geer v. Hamblen, 1 Greenl. 155, n.
The brief statement, alleging special non-tenure in the third set-off as dower to Mrs. Tarbell, was filed too late. Stat. 1846, c. 221, requires, that when non-tenure is pleaded in bar, that the pleadings shall be filed within the time required for filing pleas in abatement and not after, except by special leave of the Court, which does not appear to have been given in this case.
It is well settled by the entire weight of authority, as well as upon the clearest principles of equity, when a conveyance is made to one, who at the time mortgages back the premises to the grantor to secure the purchase money, that the widow of such mortgager' is not, as against the mortgagee, entitled to dower save in the equity of redemption. The deed and mortgage back being at the same time, though separate instruments, are to be regarded as part of one and the same transaction, in the same manner as the deed of defeazance forms with the deed to be defeated but one contract, though engrossed on several sheets. Holbrook v. Tenney, 4 Mass. 566. The husband is not deemed sufficiently or beneficially seized by an instantaneous passage of the fee in and out of him, to entitle the wife to dower as against the mortgagee. Mayberry v. Brien, 15 Pet. 21; Bullard v. Bowers, 10 N. H. 500; Stow v. Tifft, 15 Johns. 459.
*515But as the mortgage is held only as an incumbrance of the estate, the right of the wife to dower will be enforced as against all but the mortgagee. If the mortgage has been satisfied, the tenant- cannot set it up in bar of dower. Unless, therefore, the tenant can invoke the mortgage by way of defence, the demandant is entitled to dower, subject to being divested thereof by the prior rights of the mortgagee. Wilkins v. French, 20 Maine, 111.
If the mortgage is redeemed by the husband or his executors, the widow will be entitled to dower. Bullard v. Bowers, 10 N. H., 500. But instead of paying the mortgage and having it discharged, it may be assigned and upheld as a subsisting incumbrance when the interests of the parties require it. Freeman v. Paul, 3 Greenl. 260; Gibson v. Crehore, 3 Pick. 475. The case finds the mortgage to have been assigned and not discharged. The claim of the mortgage is paramount to that of the demandants. The only question therefore, that arises, is whether the tenants are in a situation to set up the mortgage to defeat the demand-ant’s claim at law, for it is well settled that she is entitled to enforce it in equity. Smith v. Eustis, 7 Greenl. 41.
The estate of the father of the tenants was solvent. The case finds that the administrator on his estate purchased the mortgage and took an assignment of it. The mortgage was not given by his intestate, nor was he bound, as administrator, to pay the same as a debt against the estate. It becomes important, therefore, to determine whether he could of right invest the funds of the estate in the purchase of notes and mortgage, and charge the estate .with such purchase, and thereby become entitled to an allowance of the sums thus paid, in the settlement of his estate in the Probate office.
The real estate descends to the heirs subject only to the prior rights of creditors. As the estate was solvent, no question as to their interests can arise. If there are outstanding mortgages, it is for the heirs, if of full age, to determine as to the expediency of removing existing incurn*516brances. It is for them to. judge whether they exceed or not the value of the estate. If the heirs are minors, the right to manage and control the estate is vested in the guardian. The funds of the-estate, upon settlement and distribution, belong to him for their use. If there are incumbrances upon real estate, it is for the heirs, if of full age, if not, for the guardian, subject to the approbation of the Judge of Probate, to determine as to the expediency of removing them. By R. S., c. 110, § 23, the sale of the personal estate and the investment of the funds of the ward is made subject to the order of the Judge of Probate. The purchase of the mortgage seems to have been made by the administrator, upon his own mqre motion, and it is not easy to perceive upon what principle he can of right charge the estate with this appropriation of its funds.
The case of Webber v. Webber, 6 Greenl. 127, does not apply. The levy by an administrator upon a judgment which he has obtained must necessarily be in his name, and he takes the fee in such case, clothed with a trust for the benefit of the heirs. So notes secured by mortgage are assets, in the hands of an administrator and the foreclosure of the mortgage must be in his name. But when the estate becomes foreclosed in his name, he holds it in trust. ‘But the right of an administrator, whose duty it is to collect and distribute the funds of the estate among those interested, to purchase up notes and mortgages therewith, and charge the same to the estate, is another and very different affair.
As the defendants are in no respect bound by, so they can derive no benefit from the purchase of the mortgage. If the investment was unwise, it is at the risk of the administrator. The defendants show no connection with it. The demandant is consequently entitled to dower, subject however to the superior rights of the mortgagee or his assignee, if they deem it expedient to enforce them. But in assigning dower in this action, the mortgage is not to be regarded.
Defendants defaulted.
Shepley, O. J., and Tenney, Rice and Cutting, J. J., concurred.