In this State, a widow is not dowable out of an equitable estate of a husband except in intestate lands. Our intestate law allows to the widow, dower, or, more properly speaking, her “ thirds,” out of any estate in lands, legal or equitable, which descend to the heir at law, the policy of this statute being to. place the widow on an equal footing with the heir. But for all other cases, the right of dower is defined by the Statute of 1816 — Rev. Code, Chap. 87, sec. 1 — which gives dower only when the husband shall die “ seized of an estate of inheritance in any lands or tenements within this State,” &c. The term seized, here used, has always been construed, in its common law sense, as applicable to legal estates only, and the Statute has been received as a declaration only of the common law rule *416of dower. This was adjudged in several cases' in the Orphan's Court, soon after the passage of the Statute of 1816. They are found in Chancellor Ridgely’s manuscript notes. The case of Whittington Johnson’s widow, ^d. vol., 396, in 1821; Lofland and wife vs. Phillips, 4th vol., 152, in 1823, and Bloxom vs. Hudson, 4th vol., 238, in 1823. The decision by Chancellor Ridgely must be received as expressing his matured judgment upon the question. For they are subsequent to his dictum in Robinson vs. Harris' lessee in 1818, reported in 3d Harrington, note, to the effect that in this State the widow of a cestui que trust is entitled to dower. This dictum being for many years the only published expression of opinion by the Chancellor, threw some doubt upon the question, which was not removed until the year 1848, when, in the argument of a case of dower of great interest at the time, the unpublished decisions of 1821 and 1823 were brought to light, and these being approved and followed in the later case, the question was finally put at rest. The case last referred to was that of John M. Darby’s widow, in the Orphans’ Court of Kent county in 1848. On a most thorough consideration of the whole subject, this construction of the statute was adhered to, and the widow’s application for dower refused out of lands in which her husband had held only an equitable estate, under alienation bonds. On appeal, this decision of the Orphans’ Court was affirmed.
But it is equally well settled in this State that a widow is dowable out of an equity of redemption, except as against the mortgagee and his assigns, and that, whether the mortgage have been ^iven prior to the marriage, or after the marriage, the wife joining in it. In the American Courts, mortgages, until foreclosure, though in form con-conveyances, are treated as securities for the payment of money, the mortgagee taking but a chattel interest, and the mortgagor remaining seized, legally, as well as equitably, with respect to all the world except the *417mortgagee and his assigns. His estate, until foreclosure, is subject to the incidents which attach to the legal estate, being inheritable, devisable, subject to execution for the mortgagor’s debts, and entitling the mortgagor to all the rights of afreeholder. This view of a mortgagor’s, estate, though originally held in courts of equity only, was gradually adopted by courts of law, even in England to a considerable extent, and it is remarked upon by Chancellor Kent as “one of the most splendid instances in the “history of our jurisprudence of the triumph of equitable “principles over technical rules, and of the homage which “thoseprinciples have received by their adoption in courts “of law.” 4 Kent Com., 158.
The English Courts,however, did not admit the equitable doctrine so far as to allow dower out of an equity of redemption. The inconsistency and injustice of denying dower out of the estate of a mortgagor and out of equitable estates generally, the same estates being held subject to curtesy and to other incidents of a legal estate, has beenfelt and acknowledged by English judges. But the decision in Dixon vs. Saville, 1 Bro. C. C. 326, in 1785, denying dower in an equity of redemption had become the accepted rule, and was so generally acted upon by purchasers that it was felt to be necessary for the security of titles to adhere to it, until the English Statute of 1833, which gave dower in equitable estates. — Lord Redesdale in D’Arcy vs. Blake, 2 S. and L., 388. The American Courts being free to carry the equitable view of mortgaged estates to its logical results, have, uniformly, allowed dower in equities of redemption, 4 Kent Com., 45. The leading cases are, Snow vs. Stevens, 15 Mass., 277 ; Hitchcock vs. Harrington, 6 Johns., 290; Collins vs. Torrey, 7 Johns., 277; Coles vs. Coles, 15 Johns., 319. It is not true, as was suggested in the argument, that this class of decisions is founded upon statutes of the several States. There are found, it is true, in the Revised Statutes of New York and of Massachusetts, clauses declaring the widow entitled to dower in *418an equity of redemption; but the decisions cited from those states were all prior to the enactment of their Revised Statutes, and the provisions referred to are merely declaratory of the rule, as one which had been already judicially established. In this State Cooch's lessee vs. Gerry 3 Harring., 280,adopts fully the doctrine that the mortgagor’s equity before foreclosure, and as against all persons not claiming under the mortgage, is to be treated as the legal estate, and the mortgagor, was in that case, permitted to recover in ejectment.
Dower has been uniformly allowed in our Orphans’ Courts out of the lands of mortgagors ; and under sales of lands by executors and administrators for the payment of debts of decedents where there has been outstanding mortgages, the practice, without exception, has been to secure to the widow, interest on one-third of the surplus proceeds of sale, after discharging the mortgage debts. Such being our law allowing dower out of the equity of redemption before foreclosure, it results that a court of equity will, after foreclosure and sale, secure to the widow a corresponding interest in the surplus proceeds of sale. That is but an application of a general principle of equity, that rights attaching to land shall be preserved as against the fund resulting from any judicial conversion of the land into money ; — so that dower being allowed at law out of the equity of redemption in the land, courts of equity, following the law, allow an equivalent for the dower out of the product'of the equity of redemption, which product is represented by the surplus proceeds after satisfying the mortgage. Titus vs. Neilson, 5 Johns., Ch. R., 453, is to this point. That was a bill for foreclosure filed in the husband’s lifetime, to which the husband and wife were made defendants, together with a second mortgagee under a mortgage of the husband’s equity. The wife had not joined in the second mortgage. After a decree for a foreclosure and sale of the premises, but before sale made, the husband died, whereupon the *419widow, being already a party to the suit, filed a petition for dower in one-third the surplus proceeds after paying the first mortgage. Her claim was contested by the second mortgagee, but upon full consideration, the dower was allowed. So in Tabele vs. Tabele, 1 Johns., Ch. R., 45 ; Smith vs. Jackson, 2 Edw., Ch. R., 28 ; Hawley vs. Bradford, 9 Paige, Ch. R., 200 ; Keith vs. Trapier, 1 Bailey's Ch. R., 63 ; Hartshorne vs. Hartshorne, 1 Green, Ch. R., 349.
But conceding to the widow equitable dower in the surplus, another question raised by the bill respects the extent of her right. The proceeds of sale were $10,500. The amount due on the mortgage $8,785.09, leaving a surplus of $1,714.99, less than one-third of the whole. The widow claims that this whole surplus be invested for her benefit, on the ground that, except as against the mortgagee, she is entitled, before sale, to dower in the whole estate, and, consequently, that after a sale, her dower attaches to one-third of the whole proceeds, except so far as the mortgage debt may exceed the two-thirds ; that as against the representatives and creditors of the mortgagor, who are the present defendants, her rights are as if the mortgage had never existed ; that a stranger to the mortgage cannot set it up.
This argument wholly overlooks the effect of a foreclosure and sale. The rule' that a stranger to an outstanding mortgage cannot set it up against the widow, applies only to a mortgage not as yet foreclosed. Before foreclosure, the widow’s relinquishment of dower, by her joining in the mortgage,remains contingent upon its being foreclosed. As yet, the mortgage money may be paid by the husband, or out of his personal estate after his decease ; or, the widow has, herself, the right, in equity, to redeem the mortgage ; and thus the equity of redemption to which her dower attaches, may become again the absolute estate. But by foreclosure and sale, the equity *420of redemption is extinguished, and thereby her relinquishment of dower, which before was contingent, has become absolute. The case then, comes within that provision of the Statute which bars dower in lands if the wife “shall “have relinquished her right of dower therein by her own “voluntary act, according to the existing laws of the “State.” Under that Statute the effect of a mortgage foreclosed upon dower in the mortgaged premises is the same as of an absolute conveyance in which the wife has joined. If there remain other lands of the husband, she takes her dower at law in them. If there remain, of the proceeds of the mortgaged lands, a surplus, as to this she has no right at law, of dower, properly speaking. But equity treats the surplus proceeds after sale, as representing the equity of redemption in the land before sale; and as the widow had dower in one-third of the equity of redemption, this Court allows her, as an equivalent, the interest on one-third of the surplus proceeds. This was the whole extent to. which the Court went in Titus vs. Neilson,* and it is in accordance with the uniform practice of our Orphans’ Court in applying the proceeds of lands which have been sold to pay the debts of a decedent, where there are mortgages paramount to dower to be paid out of the proceeds. First, the mortgages are satisfied, then one-third the surplus is secured by bond and mortgage for the benefit of the widow, the residue is ordered to the executor or administrator, and the principal of the one-third is also secured to the executor or administor, payable at the widow’s decease.
*421In the case of Fennimore’s real estate in Kent, March T., 1847, the practice on this point came under review. Fennimore’s administrator applied for an order to sell decedent’s real estate subject to dower, the widow having declined to waive her dower by metes and bounds. The debts, consisted of a mortgage and several judgments, amounting in the whole, to more than the value of the real estate. The question was, whether the Court would allow a sale of all the lands subject to dower, and then give the widow dower out of the whole, and throw the judgment créditors on the residue, or whether it would so direct the sale as to pay the mortgage debt first and give the widow dower in the residue. The Court said, “The “widow is entitled to dower in all the lands of her hus- “ band unless she shall have voluntarily relinquished her “ right of dower,which she does by joining in a mortgage to “the extent of the mortgage,andinfavorof the mortgagee. “ Our order sells the lands absolutely, and discharges both “mortgages and judgment. It is, therefore, in effect, a “sale for satisfaction and in execution of the mortgage as “well as the judgments. Flow then, are the proceeds to “be applied? Just as the parties’ rights noware. The “ mortgagor is paramount to the dower. It must be paid “first. The dower is preferred to the judgments. Dower, “ therefore, must be allowed out of the residue, in preference to the judgment creditors, as a sale on their liens “ would be subject to the dower.” The Court refused the order for sale subject to dower, inasmuch as it would result in giving the widow dower out of the whole instead of one-third of the surplus. Thereupon, the widow waived her dower by metes and bounds. A sale clear of dower was ordered, and the widow took her interest only in the surplus proceeds after payment of the mortgage.
In this case, the surplus is $1,714.91. A decree will be made that one-third of it, to wit: the sum of $571.64 be so invested that the income thereof may be paid semiannually to the widow, and the principal remain subject *422to the future order of the Court, and that the remaining two-thirds, after deducting two-thirds of the costs of this suit, be repaid to the Sheriff, to be applied by him according to law. One-third of the costs will be paid by the widow. This apportionment of the costs is in accordance with the general rule prescribed by the statute upon the assignment of dower in the Orphans’ Court.
In Hawley vs. Bradford, 9 Paige, Ch. R., 200. The widow of a mortgagor under circumstances similar to those of the present case, claimed interest on one-third of the whole proceeds of the mortgaged premises on the ground that she was equitably entitled, as a surety, to a preference over other incumbrances than the mortgagee. But the Court ■ held that the principle of suretyship did not apply.