In order to decide correctly the several points'arising in this cause, we shall be compelled to examine very fully the-statutes .regulating the proceedings in dower and administration.. The transcript now before us presents these questions:
First, What estate does a tenant in dower take in lands, slaves and personal property ?
• Secondly, To whom do these estates descend, and at what time do they vest? And,
Third, By whom is dower to be assigned, and in what manner?
It is difficult to trace the true origin of dower, but all writers admit it to be of great antiquity. It is probable that it first grew out of the customs of the northern nations, who subdued the Roman Empire; and that its introduction into'the jurisprudence of England was borrowed from the usages of the Germans or Banes. Like every other species of property, dower underwent a great many changes. It was, however, finally established and confirmed by the law of Magna Charta; and from that time to the present, the term “dower” has had a legal and technical, meaning, which in England it still retains.
Dower at the common law exists where a man seized of an estate of inheritance, dies in the life time of his wife, in which case she is entitled to- be endowed, during her natural life, of one-third part of all his lands and tenements-, whereof he was seized at any time during the coverture, and which any issue she might have had-, could by possibility have inherited. 2 Black. Com. 129. 4 Kent. Com. 35. The reason of this allowance is said to be, for the maintenance of the wife and the support and education of her younger children. To constitute a tenantcy in dower three things are necessary. 1st, Marriage. 2d, Seizin of the husband. And 3d, His death. A seizin in law, as well as in deed, entitled the wife to dower, upon the principle that she had no power to reduce her husband’s lands into actual possession. The right of dower attached upon all marriages not absolutely void, and existing at the death of the husband. The seizin of the husband for the mere transitory instant, where the estate passes in and out of him at the same time, or where he was a mere naked trustee without any beneficial interest in the inheritance will not entitle the wife to dower.
A widow gave nothing for her dower; and she was allowed to tarry in the mansion house forty days after'the death of her husband, and in that time her dower was to be assigned, and during her continuance a reasonable support was allowed her out of the estate. - She could not enter for her dower until it was assigned, nor could she alienate so as to enable the grantee to sue for it in his own name. Without an assignment of dower, she could not maintain an action of ejectment for the possession. The assignment was often in pais, by parol, by the party who held the freehold; but if her dower was not assigned within the time prescribed, by the heir or devisee, she had her action by writ of dower unde nihil habet, or by a writ of right of dower against the tenant in possession. On a recovery of the premises the sheriff delivered to her possession of dower by metes and bounds, if the property was divisible, and if it was not, it was ordered to be rented out, and she was entitled to receive annually one-third of the profits. She was tenant in common with the heir or devisee until dower was assigned, and then the estate vested and she held in sever-alty her own interest. The law made it the duty of the heir or devisee to assign the dower, and if he were under age or a minor, it then devolved upon the guardian. The lands passed to the heir at the death of the ancestor to enable him to perform feudal service, and the muniments of title were supposed to accompany the possession of the freehold, and this was the reason that it was his duty of assign dower. The term dower, related exclusively to the interest the widow had in the real estate of inheritance; for it was out of that she was entitled to be endowed of the specific thing. The claim of dower is a creature of law accruing upon the consummation of the contract of marriage: an inchoate right in the beginning, capable of being rendered perfect by the death of the husband and its assignment. It constituted a lien upon the estate of the husband from the date of the marriage, and had preference over the rights of creditors subsequently acquired.. The widow’s right of dower was a lien in law; the creditor’s rights were mere choses in action, and hence the justice and policy of giving priority to her rights over those of the creditors. These provisions and principles of the common law we deem it necessary to state, as they have an important bearing upon the questions now under consideration. ‘
Our statute makes no change in the quantum of the real estate of which a widow is entitled to be endowed by the common law, except in one contingency which we shall presently notice. The statute gives her one-third part of all the lands during her natural life, whereof her husband was seized of an estate of inheritance at any time during the marriage; and if her husband dies leaving no children, she is to be endowed of one-half thereof. She cannot be deprived of her right of dower by the alienation of her husband, unless she join in the conveyance in the manner pointed out by the statute: and where she accepts a jointure in lieu of dower, or takes as a devizee under the will, her assent must be obtained in strict conformity to the provisions of the statute. By the common law, the widow of an alien was not entitled to be endowed; but under our statute she takes dower in like manner as the wife of a native-born citizen.
There can be no doubt that the widow is endowed of the realty of her husband independent of the rights of creditors. She has precedence over them according to the doctrine of the common law; and besides, our statute expressly declares “ a widow shall be endowed of all lands sold in the life-time of her husband without her consent in legal form, against all creditors of the estate.” This provision in the act is but an affirmation of the rule of the common law, and her right of dower receives no additional force from its insertion. The 20th section declares that “A widow shall be endowed of one-third part of all the slaves of which her husband died seized, during her natural life, and one-third part of the personal estate in her own right.” These words create a positive grant, giving dower in the slaves during her natural life, and in the personal estate unconditionally. She holds the slaves in the same manner as she does the realty, and after her death they go to the heir or devisee, and the personal estate she takes in her own right absolutely. Her dower in all these three kinds of estate is given by the same or similar terms, and stands upon the like principle. She is-declared to be endowed of slaves and personal estate in the same manner as of lands. It is admitted that her dower in lands is independent of the rights of creditors, and this being the case, if she takes the slaves and personal estate in the same manner, must she not also hold them by way of lien upon the estate of her husband 1 Dower is created by law, and it certainly is competent for the legislature to enlarge or limit the estate. When they speak of dower in slaves and personal estate they mean precisely the same thing, as to the vested rights of the wife, as they do in reference to land. They have enlarged the common law definition of the term dower and made it embrace slaves and personal estate; and if she is endowed of these, she mast hold them as a lien created by law, of which she cannot be divested by other accruing rights. Now the interest of dower is a vested interest by law, upon the marriage; and although there is no express provision in the statute declaring that she takes slaves and personal estate against creditors and purchasers, still their being dower gives her that preference. The statute being silent upon the point does not change or repeal the doctrine of the common law, which we have expressly adopted. We do not feci ourselves at liberty by mere implication or construction to disregard not only the rule of the common law upon this subject, but the express provision of the act itself. Slaves and personal estate were not subject to dower at common law. The one species of property was wholly unknown to it, and she took an interest in the other after distribution by way of her reasonable proportion, by the statute of Charles II: but if' she had been capable of being endowed of these two kinds of estate, would she not have taken them as she did the realty, unless there was some express provision to the contrary? But should there still- remain any doubt on the point, the legislative history of the act of dower clearly explains the whole matter and gives the true rule. It unquestionably proves what was the will and intention of the legislature. In the construction of all doubtful statutes, and even constitutional provisions, the history of the enactment, as furnished by the rolls or journal, is the very best evidence what is the true intent or meaning of the act or law. The act, as it originally passed, shows that the wife’s dower did not attach until all the debts of the creditors were paid. But upon the 5th March, 1838, the legislature repealed the 29th and 30th sections of the original statute, thereby declaring that the wife’s dower iii lands, slaves and personal property was not held subject to the payment of the husband’s debts. Acts Genl. Ass. 1837, p. 135-6. This is an express legislative interpretation of thq act, and we are bound so' to construe it. They say by express negative words, amounting to a direct affirmation that the wife’s right of dower in lands, slaves and personal estate shall not be taken for the debts of the husband, and this seems to us to be conclusive upon the point. That the history of these legislative factsis proper evidence to be taken into consideration in construing this statute we think cannot be questioned or denied. It stands upon the highest principles of reason, justice and public policy. The light and assistance thus afforded, we hold to be indispensable in the construction of all doubtful clauses of the law and constitution. Warner vs. Beers, 23 Wend. 235. The necessity and importance of the rule is proved in this particular instance. Its application reconciles or explains the seeming discrepancies of the act itself, and its apparent or real contradiction to other provisions of the administration act. We hold that the wife’s dower of the personal property, like that of the land and slaves, must be carved out of the specific estate of which the husband was seized at the time of his death, and that if she has been deprived of it, as the lien attaches to the property, it can be followed wherever it may be found and subjected to her claim, unless by her own laches she has abandoned or waived her right. The term, personal estate, in the statute has a specific legal meaning and relates to that kind of property which is corporeal and tangible, and which the husband actually exercised dominion over at the time of his death. That it does not include choses in action which are but evidences of debt due the husband, we think clear: they properly belong and go to the administrator for the payment of the debts. Debts go for the payment of debts, and are assets in the hands of the administrator for this purpose. To these dower does not attach. The provisions of the administration law, that make it the duty of the executor or administrator to take possession of all the personal property of the deceased, to return an inventory,>to advertise and sell, and pay the debts and distribute the balance in his hands, do not stand in irreconcilable contradiction to the widow’s right of dower: and even if they could be so regarded, they woiild be inoperative by the provisions of the act in regard to that matter, which was passed subsequently. Wé lay down this general principle upon the subject: If two statutes passed at the same time, in pari materia, are opposed to each olher^ and one of them relates to a primary interest of public policy, and the other, to a secondary consideration, that which is greater in principle must govern. Here, however, we have the will of the legislature upon the subject of dower positively expressed two days after the administration law, one being upon the 3d and the other on the 5th of March, 1838. Again, the whole code of our Revised Statutes was put in operation by the proclamation of the Governor on the 30th March, 1839, and as a general rule-in construing it, the different acts upon the same subject are to be taken together. The administration law declares that lands and slaves shall be assets in the hands of the administrator. But how assets? They are unquestionably assets sub 'modo, subject to the conditions and regulations imposed in the statute. The administrator, by applying to the court of probate, can have an order of sale for the lands, and in like manner he has authority to hire out the slaves annually. There is no express power given to rent the lands; but then, that is fairly deducible as the meaning and intent of the act. He is required to take charge of the growing crop of the intestate, till the meeting of the probate court. The rents and profits are unquestionably assets in his hands to pay debts; but how does that prove that they are so to be applied before the widow’s dower is assigned? The administrator cannot obtain an order of sale ¡for the lands, or for renting it, or for hiring out the slaves, until he show the probate court that all the personal estate has been exhausted, and that the debts still remain unsatisfied. It is the order and judgment of the probate court that invests him with the power, and he is a mere naked trustee to carry it into effect. If there were no heirs, nor descent cast, he would necessarily possess the right to take charge of the estate and prevent waste. After the personal estate has been exhausted, if there remain debts outstanding, the land and slaves in the hands and possession of the heir or devisee are assets for the payment of debts, and the administrator, by applying to the probate court can cause them to be sold, rented or hired out for that purpose. Then it is that their proceeds and profits are certainly assets in hand for the payment of debts. But it may be asked, how can he sell the lands or slaves, or rent or hire them out unless he has the possession upon the death of the intestate?. The answer is obvious. He only possesses this power by virue of and in obedience to the order and judgment of the probate court, and this clearly indicates that instead of passing immediately into his possession on the death of the intestate the law supposes they go elsewhere. If1 he were clothed with the possession, why require an order of court to make any disposition of them.. When the law declares they shall be considered assets in his hands, and then goes on to point out the way they are to be so regarded, the conclusion is inevitable that they are only assets sub modo, and liable to all the conditions affixed to them. The idea that upon the death of the intestate the heir or devisee takes the fee in lands and slaves and title deeds, and that the possession passes immediately into the hands of the administrator, would by mere inference or conjecture, change the entire rule of the common law without any positive enactment, and virtually repeal many important provisions in the statute. It would seem to us to introduce great uncertainty and confusion into estates, and break up the sacred relations of blood and the kindred of families, which the law, in our opinion, inviolably protects and guards. The statute of Descents and Distributions certainly makes no change upon the subject. It does not jpretend to point out how or to whom the estate shall descend. It simply has relation to the manner in which the estate shall be holden in parcenary, and the distribution that shall take place between those entitled to receive it. It does not say the land and slaves of an intestate shall go to the administrator, as well as the personal property. It is wholly silent as to whom they shall descend, and there is no other statute supplying this omission. The rule of the common law is thus left in full force, and we know what that is. Slaves by our act of 1840, are made to descend as land: this provision has been subsequently repealed, but independent of it the statutes furnished sufficient evidence how they shall descend. The common law cast the descent of lands of an intestate upon the heir, not only because it enabled him to perform his feudal service, but upon the high consideration of kindred attachment which would induce the heir or devisee to preserve the estate: thus enlisting his interest on the side of his affection by means of that which was real and personal, and giving that which was perishable and transitory for the payment of debts. In this respect our statute has followed the same just and wise policy. While slaves with us, in one sense of the term, are peculiarly personal pro. perty, yet in another they have all the sacredness and value, nay even more than real estate. The inviolability of this kind of property is guaranteed by the constitution, and it enters into and forms a constit.-uent part of the basis of representation in our system of government. Many of the States of the Union where such property is held, make them descend as real estate. To separate the possession in lands and slaves from the fee, seems to us to be warranted by no rule of law or precedent. The fee necessarily carries with it the possession unless there be some positive enactment forbidding such conjunction. To clothe the administrator with the possession of the lands and slaves, and still to consider the fee in the heir, and to require him to perform all and every act which properly belongs to the possession, appears to-us to break up the estate into fractional divisions which would operate most injuriously to the inheritance. This construction of the statutes certainly enables the administrator to retain possession of the property till the estate is finally settled and all the debts paid. In the mean time what becomes of the widow’s dower? He is not to assign it. The statute expressly says it shall be assigned by the heir. Sections 21, 24 and 25 speak of the dower in land and slaves and personal estate, and sections 22 and 23 of.lands and slaves. These provisions all show the kind of estate of which a widow shall be endowed. And sections 29, 30 and 31 make it the duty of the heir, or if he be a minor, of his guardian to assign dower. Sections 43 and 49 give her a remedy to recover the possession, of her dower property, if it be deforced from her, with exemplary damages, and give her an action against the heir if he alien the lands or slaves out of which she may be entitled to dower. Now is it reasonable to suppose that the legislature intended” to make him answerable for the sale of that which he did not have in possession; but held therein only a fee in a kind of abeyance. Upon the death of the intestate the personal property goes immediately into the hands of the administrator, and he holds that part which is tangible and corporeal as trustee for the widow, until her dower is assigned in it: and the lands and slaves the law casts upon the heir or divisee, and requires them to take and hold the possession and assign dower in them, and the residue is subject to the payment of debts upon the administrator’s showing that the personal estate is exhausted. The widow’s right of dower is not defeated by the administrator’s having possession of the personal estate, for he takes the property that belongs to her as trustee and holds it for her benefit. The administrator holds the lands and slaves, or their rents or hire as conditional assets, and may divest the heir or devisee of the possession by an order or decree of court, whenever he shows that they are liable for the payment of debts. But this certainly does not destroy the rule of descent or deprive them in the mean time of the possession. Section 143 directs the administrator upon final settlement to-distribute the balance in his hands between the widow and heirs and legatees. This section may be plausibly, if not satisfactorily explained upon the supposition that the widow may accept a pecuniary compensation by will out of the estate of her husband in lieu of dower after the payment of the debts. This explanation reconciles it with the provision of the dower act; but we do not hold it to be the true one» The section cited comes in conflict with the act of dower, and (as that was passed subsequently,) must yield to it, and be repealed by the general enactment. The historical facts before noticed explain this discrepancy or conflict between the two acts, and show wh at was the true intent and will of the legislature. Distribution and dower are two separate and distinct things: one is a lien created by law on the property of the husband at the time of the marriage, which necessarily takes precedence over all other subsequent accruing rights,, and attaches to the specific property and is carved out of it. Distribution occurs after administration, and the payment of debts; and the estate, is then divided between the heirs or legatees. The widow is not entitled to any portion or distributive share after her dower has been alloted to her, for all that goes to the heirs or legatees after payment of debts, and the administrator is bound to distribute the residue in his hands. We have no statute giving her any portion of the personal estate as a distributive share; and that part of the common law which is in force here allows her no such interest in the personal effects of her husband. There being no mode pointed out in the statute by which a widow may be endowed of the personal estate, does not in our estimation deprive her of her right of dower in this kind of property. A neglect or omission on the part of the legislature to provide a suitable remedy cannot divest her of a positive vested right with which they have clothed her. If they have granted her a legal right and it isvested in her, but omitted to give her the proper remedy-it then becomes the duty of the courts of justice to afford the remedy. It is a maxim of common law, aswell as of common sense and of natural justice, that wherever a party has a legal right he must have a legal remedy to enforce it.
The heir is allowed two months to assign dower, and during that time or until her dower is assigned the widow has a right to tarry in the mansion house of her deceased husband, and to occupy the premises and hold the farm attached to it free of rent, and during her continuance a reasonable support must be allowed her out of the estate. If her dower be not assigned within one year after the death of her husband, or within three months after demand, she must petition the court of probate in the respective counties where the lands lie, and slaves reside, to have commissioners appointed to assign her dower. Her dower must be specificaly assigned out of each parcel or tract of land, wherever it may be situated, and one third part of the slaves and personal estate must be specifically allotted to her. If the estate is not capable of division without essential injury'then they must be rented or hired-out, and one third of the profits annually allotted her. Her estate in dower does not vest in severalty until the assignment is made, but being tenant in possession at the death of her husband, her occupancy cannot be disturbed until after her dower is assigned. In the assignment she is entitled to the mansion ho.use, if the estate will admit of such division. In addition to her dower, the widow is entitled by virtue of the 62d section to the articles therein enumerated unconditionally and against the rights of the heirs and creditors, whether the estate be or be not insolvent: and section 63 gives her one hundred and fifty dollars, worth of the appraisedjjvalue of the personalty, provided she selects it before sale or distribution. This interest she takes absolutely against the heirs or distributees, but not against creditors.
That an appeal will lie from the decision of the probate court to the circuit court in cases of assignment of dower we think clear. The statute of dower gives no appeal by express words, but section 177 of the act of administration, declares that an appeal shall lie “in making allowances to the widow.” We admit that these terms are not very precise or technical. To give to them a narrow and confined interpretation would be virtually to defeat the will of the legislature. The terms “allowance to widows” relate as well to her dower interest as any other interest she takes, and was intended to include both kinds of cases. The words are general and were used in their popular sense. Again, the act of dower speaks of the widow’s interest as an allowance. This shows the legislature intended to use the terms as they were generally understood, and of course they applied it to cases of dower between her and the heir and administrator.
In the present case the record shows that the administrator allowed the widow dowe rin thechoses in action, and also in a cettain amount of money or cash on hand, and that the probate court confirmed the allowance, which was excepted to, and the circuit court struck both items from the account. It was certainly right not to allow her dower in the choses in action. They constitute no part of the personal estate of the husband within the meaning of the statute. They were not reduced to possession at the time of his death and consequently no right of dower attached to them. But the rule is different in respect to the money or cash on hand. That is unquestionably a corporea\ interest reduced to possession, and of course the widow had a right to be endowed of it as it formed a portion of the personal estate of her deceased husband.
The construction we have put upon the law of dower and- administration, we regard as every way warranted by the general tenor and spirit of the act, and by the just and enlightened policy that dictated them. The legislation of our sister States has in almost every instance enlarged the widow’s dower, and this alteration we have not only adopted, but carried farther than any of them, and in our opinion it strictly corresponds with the improvement of the age and the interest of justice. We have carefully and maturely considered the whole subject, and should it hereafter be discovered that we have been mistaken ifi any one of our conclusions we shall be consoled by the reflection that our interpretation of the statutes has protected the interest of those who are least able or inclined to take care of themselves.
As the circuit courts erred in not allowing the widow dower in the money in the hands of the administrator, for that reason its judgment is reversed.