As I cannot accept the conclusion reached by the majority of the court upon the main question involved in this case, I propose to indicate as briefly as practicable some of my difficulties.
It seems to me that there was no room for the question of fact upon which the decision is made to turn. There is no doubt that the land in question, or, rather, the larger portion of it, was assigned to the widow as her dower; and, according to my under*362standing, there is but one way by which this can be done — that is, by the assignment of one-third in value of the land, in which the right of dower exists^ for the life of the widow. It is true that our statute provides that in certain contingencies a sum of money may be assessed to the widow in lieu of dower; but, properly speaking, that is not an assignment of dower, but by the express terms of the act is compensation in lieu of dower. Whenever, therefore, thefact is ascertained that dower has been assigned to the widow, then the law steps in and fixes absolutely the nature of the interest so assigned. In this case, the fact that dower was assigned is conceded, and those portions of the record which have been preserved demonstrate that the fact is as it is conceded to be, and, hence, it does not seem to me that there ivas any room for further inquiry as to the facts.
But, more than this, the record shows that there was an order of the court, directing “that a writ for the admeasurement of the widow’s dower do issue,” directed to certain persons named, requiring them “to admeasure the widow’s dower,” and another order in these words: “On hearing the bill and answer, together with the return of the cause [no doubt a misprint for commissioners] to the writ to admeasure dower in this cause, on the motion of Mr. Clark, complainant’s solicitor, and with the consent of Messrs. Abney & Wright, defendant’s solicitors, ordered, that the said return be confirmed.” The writ for the admeasurement of dower and the return of the commissioners were, however, lost. Now, it seems to me that, upon well settled principles, we are bound to assume, from this order confirming the return of the commissioners, which was in effect the final judgment as to the matter of dower, that all the previous and intermediate proceedings — the writ and return — were regular and proper; and if so, then the conclusion is inevitable, that the land assigned to the widow as her dower was only assigned to her for life, and not in fee.
As to the other points involved, I concur with the majority of the court.
Judgment affirmed.