The opinion of the Court was delivered by
Wright, A. J.Even conceding all the propositions for which the appellant contends, it is enough to say that he is precluded from the benefit of which he now seeks to avail himself, by his own course, in regard to the return of the Commissioners. There is no doubt that the return is under the control of the Court.
It cannot, of itself, change the amount which it recommends as compensation in lieu of an allotment of a portion of the land, but it is in its power either to recommit the writ, that the return may be amended, or, if it is manifest that an assignment in land ivould be of prejudice to those invested with the fee, the Court may appoint a Referee, to enquire into, and report upon, the money-value of the dower.
The difficulty that the appellant has to .encounter arises from the fact that he made no exception to the return, which actually assessed “ the sum to be paid to the widow.”
The writ had issued conformably to the long established practice ^of the Courts of this State, and, if the appellant was not satisfied with the return, he should have made his objection known at the time.
“ The return of the Commissioners, if accepted, is the law between the parties.” — Butler vs. Farrow, Rich. Eq. Cases, 178.
The proceeding for the admeasurement of dower is not like that which attaches on a commission for the partition of real estate among heirs.
*370There the Commissioners, if they find that the land cannot be divided without manifest prejudice to some of the parties interested, may recommend a sale. In dower, however, they cannot advise a sale. Their duty is confined to the admeasurement of it by metes and bounds,, or to assess the money value of the right.
ITow was the Circuit Judge to know that the appellant objected to the assessment made by the return in reference to the amount which the Commissioners fixed as the fee simple value of the whole land? Having made no objection to it, how can an appeal be entertained from his order, which merely confirms the return as to the value of the dower in the land.
If the appellant is right in the proposition for which he now contends, that the “ wjfe’s right of dower can only be admeasured in accordance with the actual value of the land upon which it attaches,” and that this standard “is the amount realized at the sale,” he had two opportunities to make this question in the Court below, both of which he neglected:
First, he could have presented it on the order for the issuing of the writ; and, secondly, on the return of the writ.
In fact, to give full effect now to his objection, would practically destroy the right of the Court to order the writ, unless it was previously made certain that the dower could be given in hand, for if the value of the claim is to be regulated by the actual amount which the whole land would bring on sale, it would be entirely unnecessary for the Commissioners to assess a value upon such whole. The result would be this, that unless the dower is given in land the Court must necessarily order a sale before the value of the widow’s right in money could be ascertained.
This course would not only be at variance with the uniform practice in the State, but would make the value of this right (one, too, always favored by the Court) depend upon the chances and speculations of an auction sale; for anything that appears, or can be positively known, the land may sell for an amount beyond the sum affixed by the Commissioners as its value, and then the appellant would have no cause of complaint. The practice of the Court must be uniform and consistent, and not regulated by conjectures, or changed by circumstances which may arise after its judgment is pronounced without exception being made. When the return of the Commissioners was confirmed it stood as the judgment of the Court.
For the general principles on which our opinion rests, see Butler *371vs. Farrow, Rich. Eq. Cases, 178; Gibson vs. Marshal, 5 Rich. Eq., 254; Payne vs. Payne, Dudley, 124.
It is ordered and adjudged that the decretal order be affirmed ' and the motion dismissed.
Moses, C. J., and Willard, A. J., concurred.