8 D.C. 163 (D.C.D.C. 1873), 3048, Wm. Davison & Co. v. Whittlesey

Docket NºIN EQUITY.— 3048.
Citation8 D.C. 163
Opinion JudgeMr. Justice WYLIE
Party NameWM. DAVISON & CO. v. VIRGINIA WHITTLESEY ET AL.
AttorneyLeigh Robinson and Reginald Fendall for complainants: Wm. John Miller for defendants.
CourtSupreme Court of District of Columbia

Page 163

8 D.C. 163 (D.C.D.C. 1873)

WM. DAVISON & CO.

v.

VIRGINIA WHITTLESEY ET AL.

IN EQUITY.— No. 3048.

Supreme Court, District of Columbia.

September Term, 1873

I. The dower-right of a widow, which has not been assigned to her, may be subjected, in equity, to the payment of her own debts contracted since the death of her husband.

II. When it is manifest that an assignment of dower by metes and bounds is not practicable, a receiver will be appointed to take charge of and rent out the property until the widow's share of the rents and profits shall be sufficient to satisfy the judgment and costs.

STATEMENT OF THE CASE.

The bill was filed by a judgment-creditor, setting forth the judgment at law against the defendant, Virginia Whittlesey, for the sum of $1,545.58, and that execution thereon had been returned unsatisfied. The bill also alleges that one Comfort S. Whittlesey, husband of the said Virginia, departed this life intestate in 1864, seized in fee-simple of a lot of ground in said District which is described; and that his widow, the said Virginia, is entitled to her dower-estate therein, and complainants ask that such interest may be subjected to the payment of their judgment. The other defendants are heirs of the intestate, and the answers admit the material averments of the bill.

Leigh Robinson and Reginald Fendall for complainants:

Possible and contingent interests, far more vague and indeterminable than a right of dower, which may at any moment be ascertained and assigned, are susceptible of equitable transfer. However incapable of assignment at law, a chose in action, if it be in substance a right of property, is treated in equity as of that character, and may be transferred by an assignment or agreement to assign. A widow's right of dower is no exception to this rule. " The want of formal assignment of dower," said Lord Cowper, " is nothing in equity, since the widow's right in conscience is the same as if it had been made." Hamilton vs. Mohun , 1 P. W., 122. In this forum, therefore, a wife's right of dower is practically susceptible of sale. Baldwin vs. Banister , 3 P. W., 251. This species of equitable transfer has been repeatedly enforced in the courts of the States of this Union.

Wm. John Miller for defendants.

OPINION

Mr. Justice WYLIE

The only question to be decided in this case is, whether the dower-right of a widow, which has not been assigned to her, may be subjected in equity...

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