They certainly are strong; and yet it was determined in Franklin county, in a case wherein I was counsel, by M‘Kean, Chief Justice, on solemn argument, that the Orphan’s Court might make such order, though there were no minor children. The practice has since generally prevailed in the middle counties of the state in particular; and many valuable titles depend on that exercise of power. I mentioned this in Philadelphia on the argument of Moliere’s lessee v. Noe, in December term 1806. 4 Dali. 451, note. But I will not say, that all the bar then present were satisfied with that construction of the law.
Mr. Brown, in continuation. Be that as it may, the widow here was not required on behalf of the heir at law, either before her intermarriage with Price or since, to apply to the Orphans’ Court by petition, or it certainly would have been done. If the defendant desires it, the plaintiffs will petition the court immediately on our return home.
What they now complain of, is that the referees in forming their award, have charged them with the full moiety of the debts, considering them as holding the lands in fee simple, when they only hold it during the life of the widow. In no instance in England, has this been done. In some cases, they have been decreed to pay one-third; in others, two-fifths of a mortgage, *1 *ehargeable on lands devised to a tenant for life. 1 Equ. •* ^ I Ca. Ab. 117. Prec. Cha. 62. A tenant for life shall bear his proportion of a charge on the lands, that all shall not fall on *529the remainder man. 1 Equ. Ab. 113, pi. 4. But a remainder man can only force the tenant for life to keep down the interest of a mortgage. 2 Equ. Ab. 618, pi. 3. A lease for lives being devised in trust for A. remainder to B. in tail, A. not being one of the lives, shall contribute one-third of the fine on renewal. 1 Vez. 428. If a tenant for life pays off an .incumbrance on the estate, he is a creditor to the amount of the money so paid; but it is otherwise of a tenant in tail, who may make himself owner of the estate. 1 Bro. Cha. Rep. 206. A tenant for life by the iate decisions, shall keep down the interest of an incum-brance, but not pay any part of the principal.* 1 Ves. jr. 234. 2 Ves. jr. 652, 666. 4 Ves. jr. 24, 32. 6 Ves. jr. 107.
It has been objected, that the widow is not entitled to dower in this state, until the debts of her husband are paid. This in some instances, cannot be accomplished for many years. Is the heir at law to receive the rents and profits in the mean time, and the widow to be in a state of starvation ? On what is she to subsist ? The books say, she has nothing to live on but her dower; she is favoured both at law and in equity, and gets her share immediately; she universally gets an account in chancery from the death of her husband. 2 Bro. Cha. Rep. 630, 632. It is so likewise in this government. Her right of dower attaches immediately on her husband’s death. So is the 3d section of the act of 19th April 1794. By section 4, where the intestate leaves no lawful issue, she gets one-half of the real estate, including the mansion house, where the estate can with propriety be divided. And by section 22, she may apply by petition to the Orphans’ Court to have her dower assigned to her.
Mr. Watts rose to argue the case further on the part of the plaintiffs ; but was stopped by the court, who expressed their wish to hear what could be further urged on the part of the defendant.
Mr. Duncan, in support of the appeal, enlarged on the topics which had been insisted upon before by his colleague; and particularly, on the circumstance of the widow having neglected to petition the Orphans’ Court for an order impowering her to sell the lands of the intestate for payment of hisdebts. Toher laches *in this particular, he imputed all her difficulties, as she could not be endowed until the debts were paid. He L ” doubted whether a widow could support an action of dower at common law, inasmuch as her claim to a portion of the lands must rest on this, that the lands might be divided without prejudice to the whole.
Under section 11, of the act of 1705, no partition of the lands of the intestate shall be made, by or for his relict or younger *530children, if the heir at law will pay so much money as their respective purparts will amount to. I Dali. St. Laws, Append. 45. And by section 4, of the act of 23d March 1764, lb. 47, partition cannot be made, unless it appears to the Orphans’ Court, that the lands may be divided without prejudice to, or spoiling of the whole.
A case may be put wherein the widow’s right of dower must necessarially be suspended. Suppose a judgment obtained against the administrator, for a debt due from the intestate, and the whole of his lands delivered over to the creditor under an extent, the widow can no longer be in the receipt of the rents and profits of her purpart. The fund out of which her yearly payments would arise, being removed from the heir at law, her annual sum would cease also. And this is a case, where though she is a mere tenant for life, she would be obliged to pay her full proportion of the debt upon the land, before her right of dower could be revived.
Yeates, J.What could be done for a widow, in case all her husband’s lands were extended for his debts, is not now before us. When such a cáse does occur, the court will deliberate fully before they act.
Before we can confirm this report of the referees, the proposition must be established, that the heir of an intestate may take the rents and profits of valuable lands, and not contribute one single cent towards the support of his widow. The defendant here has enjoyed the real estate of Henry Pawling, above 12 years, and yet has made but one single payment of 150I. to his widow. While he holds the lands for his own benefit, no ground can be assigned why the widow’s annuity should remain unpaid. The debts due from the intestate are chargeable on his lands, on a deficiency of personal assets ; but until the creditors have proceeded to a sale, the right of the widow to the profits of her share, stands on the same footing as the right of the heir to his share. If the heir has paid any of those debts, she comes in as a creditor/n? tanto.
It is true, the widow’s ultimate right of dower must depend on the state of her husband’s lands after payment of his debts ; but it is not-true, that she cannot receive a temporary share until * -j *that object is accomplished. She cannot compel the ^ J creditors to commence suits ; and without funds she cannot discharge the debts. Her not applying to the Orphan’s Court in this instance for an order to sell the lands has been accounted for. But independently thereof, it does not appear that the heir has received any injury thereby, while he has had the undisturbed possession of the whole estate, and that too daily rising in value. When any part of the lands is sold by legal process, the share of the widow must proportionably de crease; but as between her and the heir, she was intitled to one moiety of all the lands until such sale. It may be another ques*531tion, which however cannot take place here, whether if upon the sale of all the lands, there should be a deficiency of assets, both the heir and widow might not eventually be responsible to creditors. So far from the widow’s claim of dower being discouraged by our laws, she derives an interest from the valuation of mere woodland in a state of nature, where the same cannot be divided with propriety.
Cited and followed in 1 Pa. 339.The erroneous principle upon which the referees have proceeded, will be readily perceived by considering the plaintiff’s demand to the annuity of 150I. That sum was fixed on by the first award in lieu of the widow’s right of dower, and is the interest arising out of a principal of 2500I. for one year. It follows of course, that the first set of referees must have valued all the lands of Pawling, at 5000I. or as productive of 300I. annually in net profits. Now if those lands are resorted to, by a creditor for the payment of a debt of 2000I. due from the intestate, or if any one on behalf of the heir at law, should pay that sum and look to the lands for remuneration, the consequence as to the widow must be, that the principal out of which her annuity would thereafter accrue, would be decreased from 2500I. to 1500I., and her annuity would in future be 90I. and not 150I. This reduces the matter to a mathematical certainty; but by the account of the referees, which accompanied their report, they assume the principle that in the case already put, the widow would be chargable with the payment of ioool. viz. the one full half of the whole debt, which is most palpably unjust. I have therefore no hesitation in saying, that the report was set aside on the most just grounds.
Smith, J. concurred. BiiackeNridge, J.I had conceived during the argument, that the widow was highly blameable in not petitioning the Orphan’s Court for an order to sell the intestate’s lands. I do not know enough of the 'case, to enable me to form a decisive opinion on it.
Judgment of the Circuit Court affirmed.
In White v. White, 9 Ves. jr. 555, it was decreed by Lord Chancellor Eldon, that though the old rule, throwing one-third of the fine upon renewal on the tenant for life, does not now prevail, the tenant for life must in general cases, contribute beyond the interest, in proportion to the benefit he takes.