delivered the opinion of the Court. *
The act of Assembly which declares, that until dower shall be assigned to a widow, “it shall be lawful for her to remain and continue in the mansion-house, and the messuage or plantation thereto belonging, without being chargeable to pay the heir any rent for the same,” is highly beneficial to her; but, it was not intended to operate injuriously to the heir. It was intended not to restrain, but to stimulate, the heir; not to diminish any of his powers, but to urge him to their just and speedy exercise. He had the power, at common law, to assign dower without resorting to any Court whatever; and that power is not impaired by the act of Assembly aforesaid. The widow is bound to accept the assignment made by him, provided it be a, full and just assignment; and, in that event, if she persist in holding any more of the lands than *422those thus assigned, she ought to be chargeable therefor. 'pjjg assignment of dower by an adult heir, in behalf of himself and his co-heirs, who are infants, is as binding on them as it is on him, provided the assignment be not excessive.
It is no objection, that the assignment in this case was made by commissioners under an order of the County Court. That, order was made at the instance of the heir, and the assignment by them was his assignment. Even the widow herself has never objected to it as not being full and fair; and, as to her misapprehension of the law, in sup- • posing it not to be obligatory, it would be unreasonable in the extreme, that she should avail herself of it, to hold the. whole estate rent free.
The decree is affirmed,.
Judge Carr, who had been appointed on the death of Judge Fleming, sat in this cause. Judge Green, absent.