The opinion of the Court was delivered by
StROüd, J,It was ruled in M’Coy v, Scott, 2 Reticle 222, that until divested by a judicial sale, the right of the heirs of an intestate to the lands of which he died seised, is as absolute as that of the Intestate was in his lifetime; and therefore that they are entitled to the rents and profits of such lands, even though it shall afterwards appear that the intestate died insolvent. There is no statement of facts accompanying the report of this case, and it is not clear who were meant by the court under the name of heirs. Its strict legal acceptation would undoubtedly not include the widow, but as she is entitled, by the intestate act of April 19, 1794, to one-third part of the real estate of her intestate husband, during her natural life, where there are children left by the deceased, as in the present case, and they by the same act take the remaining two-thirds absolutely, there seems no good reason for discrimination between her right, whilst she continues to live, and the right of the children, in respect to a participation of the profits of the land. And in Price and wife v. Johnston, 4 Yeates 526, a widow of an intestate recovered of his heir at law a sum of money which had been awarded by an amicable reference as an annual payment in lieu of her share of the profits of her husband’s real estate, but was withheld in consequence of notice that debts of the intestate remained unpaid, equal, as appeared after the heir had received the profits, to the whole value of the estate which the intestate had left, Judge Yeates said : “ the defendant here has enjoyed the real estate of Henry Pauling, the intestate, above twelve years, and yet has made but one single payment, of 150 pounds, 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 ha-share, stands on the same footing as the right of the heir to Ms sham. It *223is 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 recover a temporary share until that object is accomplished. When any part of the lands is sold by legal process, the the share of the widow must proportionably decrease ; but as between her and the heir she teas entitled to one moiety of all the lands until such sale.” Page 530, 531. This decision was in reference to the act of March 23, 1764, the provisions of which, as to the rights of a widow and the heirs of an intestate, do not differ in any important respect from those of the act of the 19th of April 1794. These two decisions determine the question submitted to us. The account annexed to the case stated shows a balance in favour of the widow, which arises altogether from the rents and profits of the real estate left by her husband, and which have been collected by Lire defendant. This balance is admitted to be due to her, unless the defendant, as guardian of the children of the intestate, can set off the interest which has accrued on a debt due by the intestate to his children in his lifetime. The personal estate having been exhausted by the payment of debts, and the widow having administered on her husband’s estate, form the ground upon which the right to make this set-off is claimed. But it has been shown that the widow, in her own right, is entitled absolutely to the sum for the recovery of which she has brought this action. There is no pretence, therefore, for the set-off.
In Pringle v. Gaw, 5 Serg. & Rawle 536, it was decided that the widow of an intestate cannot join with his children in bringing ejectment for the lands to which he was entitled at his decease; and one reason assigned for this is, “ that a widow cannot support ejectment for her thirds as dower at common law, and that she cannot for her interest under the intestate laws.” This position seems to conflict with the conclusion that she is entitled to a portion of the rents and profits of the real estate in common with the children. But as the act of assembly gives to the children but two-thirds of such estate, and one-third is allowed to the wife during her life, and as M’Coy v. Scott determines that an administrator, though he collect the rents which accrue after the intestate’s death, does pot receive them for the creditors of the intestate, we are at a loss to perceive why they should be denied to the widow as such. If not hers, they would seem to belong to no one.
Judgment for plaintiff.