The plaintiff is the widow of George H. Clark, deceased, and, by the judgment appealed from, has been awarded dower in the real estate described in the complaint. George H.
“(1) That the plaintiff is entitled to dower, as aforesaid, in the land and premises in the complaint mentioned; and this dower, so far as it applies toPage 327land devised absolutely to George H. Clark by bis father, is not chargeable with any part of the said seven hundred and fifty dollars annuity to the defendant, Augusta Clark, unless the said defendant first show that there was an insufficiency of personal property left by the deceased husband of said Augusta Clark to comply with the provisions of the will of her said husband respecting the payment to her of fifteen hundred dollars per annum.” “(3) That, by virtue of said will, George H. Clark, the plaintiff’s husband, became seised of an undivided fourth part or interest in the real estate whereof said George Clark died seised, and that such interest vested in possession at the instant the youngest child of said George Clark attained the age of twenty-one years. (4) That such interest or share in said real estate continued so vested in said George H. Clark during his marriage with the plaintiff in this action, and her right of dower attached to such interest, and became a vested right at the death of said George H. Clark. (5) That the plaintiff is entitled to dower in the remaining portion of the lands and premises mentioned in the complaint, a life estate in which was sold to the husband of the plaintiff by the defendant, Augusta Clark, but this dower is chargeable with its just and ratable proportion of said seven hundred and fifty dollars annuity. (6) That the right of .the defendant, Augusta Clark, to her annuity, continues from year to year, and whatever has not been paid her in one year should be made up afterwards, and the referee to take and state the account should ascertain and report the amount of such arrearages.”
And amplifying these findings, in Ms opinion, he stated:
“The plaintiff is therefore entitled to recover dower in the undivided fourth that her husband inherited from his father, and this dower is not chargeable with any part of the annuity to the widow under the will, unless the defendant first shows the insufficiency of the personalty to satisfy that annuity. The remaining interest in the realty of which plaintiff’s husband died seised was acquired by inheritance, or by deed from his brother and sister and mother. In that share, till the mother’s deed, there was always an outstanding life estate in the mother; and hence, till then, there never was seisin in the husband, or dower in his wife. But the deed from the mother expressly charges the annuity on the real estate conveyed or released. Therefore, whatever was the effect of the will, this share acquired by this deed must bear its proportion of the annuity. The husband’s only right in such share being in remainder, he could subject it to whatever liens he saw fit, regardless of the claims of the plaintiff.”
The plaintiff took no exception to these conclusions, and it is very obvious, therefore, that they measure the right of her recovery, and she was not entitled to a judgment that awarded to her a greater measure of relief.
A reference was ordered, to ascertain the value of the land, and to compute the value of the plaintiff’s dower, and the damages for withholding the same, and other matters of fact, of which it was necessary the court should be informed before a judgment could be granted; and, upon the coming in of the referee’s report, judgment was entered which adjudged that “the plaintiff is entitled to dower in all the real estate described in the complaint, and that said dower is entitled to precedence over all the claims of defendant, Augusta Clark, in and to said real estate, or any part thereof.” By reference to the opinion of the learned judge, filed upon entering tMs judgment, the judgment appears to be based upon the conclusion that the referee had found that the plaintiff’s claim took precedence over the defendant’s claim, and was a first lien, not only upon the estate which plaintiff’s husband had acquired from his father, but upon all the remaining interests which he had acquired otherwise, and that, as there was personal property left by George Clark
The plaintiff was married to George H. Clark in 1879. At that time he was possessed of an estate in the lands in question of an undivided one-quarter, which he had acquired under his father’s will. That estate was unincumbered, except by the provisions of his father’s will, which created the defendant’s annuity; and whether that created an incumbrance thereon depended upon the insufficiency of the personal property to provide for the payment of the annuity. The referee has found that there was sufficient personal estate to provide for the defendant’s claim, and that conclusion has ample support in the evidence. As to that share, therefore, plaintiff established the priority of her claim. At the time of the plaintiff’s marriage, her husband had other estates in the land, amounting to an undivided one-quarter, which he had inherited from his deceased brother and sister; but they were estates in remainder, and not in possession, and plaintiff acquired no inchoate right of dower therein. She had no rights therein which interfered with her husband in dealing with those estates, and he could subject them to such lien as he chose. On February 7, 1883, the parties made- a settlement of the estate. The rights of the several parties in and to the lands owned by them were at that date as follows: George H. Clark had an estate in fee simple in an undivided one-quarter, subject to the inchoate dower of the plaintiff, his wife, and an estate in remainder in an undivided quarter, subject to the life estate of the defendant, his mother. Mary A. Townsend had similar estates in the land; one quarter being subject to the marital rights of her husband, and the other to the life estate of the defendant. The defendant had a life estate in an undivided one-half of the lands, which she had acquired from her deceased children, and she had a claim upon the estate for the annuity under her husband’s will of ¡§1,500. The executors of the estate of George Clark and Mr. and Mrs. Townsend conveyed the premises described in the complaint to George H. Clark, and other land was conveyed by the said executors and plaintiff and her husband to Mrs. Townsend. These conveyances expressed as a consideration “the settlement and the division of the
“This conveyance does not release or extinguish the lien o£ Augusta Clark on said lands from the payment of the annuity provided for, and directed to be paid to her, by the will of said George Clark, deceased.”
At the same time, George H. Clark, Mrs. Townsend, and the defendant executed a deed, which, after reciting (1) that the defendant was entitled to an annuity of $1,500, pursuant to the will of George Clark, and to have so much of the property of said George Clark set apart as would produce such annuity; (2) the settlement and division of the estate in consideration thereof, provided that defendant would receive one-half of said annuity from George H. Clark, and one-half from Mrs. Townsend, and that she should have a lien, as security for the payment of said sum, “upon the respective portions of real estate and property of said George H. Clark and Mary A. Townsend, inherited from their father, and divided by this settlement.” It further provided for the enforcement of payment of the annuity in case of default, and the transfer of defendant’s right, title, and interest in the property to said George H. and Mary for the stun of $5,000.
These three instruments must be read together, and construed with reference to the intent of the parties; and, so read, it is plain that the purpose was to substitute for the rights which defendant had under the will of George Clark, her husband, the personal obligation of her son and daughter to each pay one-half of the annuity, and to secure such obligation by a lien upon the lands conveyed to each. That was a valid agreement, and the lien was enforceable against the plaintiff’s husband. It was in the nature of a purchase-money mortgage, and the plaintiff’s rights are subject to it. Her claim to dower can only be asserted through her husband’s title, and, as that title came to him subject to the lien, her dower is subject to it also. Such, undoubtedly, was the effect of the agreement upon the undivided one-half of the property in which the defendant had a life estate; and such, in our opinion, was its effect on the undivided one-quarter owned in fee by Mrs. Townsend. It was a part of the consideration of the conveyance of the defendant’s interest in the land that she should have a lien on all the land which was divided by the settlement; and the only thing which postponed the lien of the annuity to the plaintiff’s dower in the share which George H. Clark acquired under his father’s will is that the plaintiff executed no paper, ón the settlement, which deprived her of her dower in that share. The only paper executed by her was the deed to Mrs. Townsend. She is not a party to any instrument affecting any of the land described in the complaint, and consequently cannot be deemed to have released a dower right acquired previous to the settlement. But, as to the land acquired by the deed of February 7th, her dower is subject to the lien then created as security for defendant’s annuity. The land described in the complaint now stands for all the undivided shares which George H. Clark had or acquired in his father’s estate, either by the will or the deed of February 7th;
PEATT, J., concurs.