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been assigned to her. It is held by text-writers, and is so decided generally, that the maxim dos de dote peti non debet does not apply when there has not been an actual assignment to the first widow. This is upon the principle that the husband of the second widow may be considered as seised in his lifetime of the estate charged with the right of dower of his mother, as against all others but her. A stranger cannot avail himself of the contingency that the first widow may never enforce her right. When she does enforce it, then an assignment already made to the second widow becomes wholly defeated or diminished thereby : Dunham v. Osborn, 1 Paige 624; Reynolds v. Reynolds, 5 Id. 161; Safford v. Safford, 7 Id. 259. To the same effect are the cases cited supra. See also Young v. Tarbell, 37 Maine 509. But the answer to this position is, that the rule does not apply to this case. The tenant is not a stranger. She is in possession, claiming her estate of dower. Her condition is the same essentially as if a special assignment had been made to her. There is no need of a separation of her estate in dower, from her estate of inheritance, for any practical purposes. She does elect to enforce her claim, by a resistance to the claim of the second widow. If the demandant should recover according to her claim, the tenant might perhaps have an action against her to recover a part of it back again. We think the legal rights of the parties can be as well settled in the present action as in any
Then it may be argued that the tenant's right of dower has been lost by consolidation with the fee conveyed to her by her son. In Leavitt v. Lumprey, 13 Pick. 382, it was decided that a second widow was not entitled to dower in the whole of an estate against the tenant to whom the senior widow had conveyed her right after she had recovered judgment for dower therein, but before it was set off to her. While in Atwood v. Atwood, 22 Pick. 283, it was held that a prior right of dower which had been released to the tenant before any suit to enforce the same, could not be set up to diminish the claim of a second widow who claimed dower in the whole estate. But we have already expressed the opinion that in the case at bar the senior widow is in the same condition and bears the same relation with all parties interested as she would if her dower had in point of fact been set out to her. She is entitled to a life-estate of one-third. She is in actual possession of it as well as of the reversion, and she is defending her possession. In this
state the doctrine of merger is not favored in law or equity. It is clear enough that if this was a proceeding in equity a merger could not be regarded as taking effect. It is manifestly for the interest of the tenant to keep her two titles distinct, in order that the demandant may recover no greater amount of dower than she would have been entitled to if they had continued to be held by different persons. The tendency in the courts has been to admit the application of the same principle, in proceedings at law in cases where the forms of the transfers are such that it can reasonably be effectual. The tenant having all of the estate, including her right of dower therein, may certainly be regarded as having her estate of dower as effectually as if she had recovered judgment therefor. She cannot sue herself to obtain it. She has it. Having the whole estate, she has all the parts : Campbell v. Knights, 24 Maine 332; Holden v. Pike, Id. 427; Simonton v. Gray, 34 Id. 50; Strong v. Converse, 7 Allen 557 ; Savage v. Hall, 12 Gray 365.
The point, however, upon which the demandant places the greatest reliance and stress, is that the tenant is barred from her claim of dower, upon the technical ground of estoppel. It is contended that, by accepting from her son a deed of the premises with the usual covenants of warranty, she admitted that he was fully seised of all the premises as of fee, and the argument is that she is now estopped to show the contrary. In support of this view, Lewis v. Meserve, 61 Maine 374, is cited for authority. The tenant admitting Lewis v. Meserve to be correctly decided, denies that it can apply to a case like the one at bar. We think the distinction is well taken. That case was decided with exact correctness, having reference to the actual question then before the court for their determination. There it appeared that the tenant who resisted the claim of dower, obtained all his title from the husband of demandant, and there was no pretence that he had any kind or claim of title from anybody else. He merely set up that some one else might have a title paramount to his. But he had no relation with it, if it was so. The court were clearly of the opinion that he was estopped to deny the seisin of his own grantor, who was the husband of the demandant in that suit. All the cases are in accord as far as that case goes. The point is there briefly alluded to, the decision of it not being really necessary to the result of the case. But the present case is a different one. Here the tenant does claim a title of dower outside of and superior to the right and title of her grantor. She had no occasion to purchase what already belonged to her, nor is it to be supposed that there was any design by her to do so. Her grantor had already acknow. ledged and submitted to her superior claim. The reasonable presumption is that she paid for the premises, deducting from the price for the entire premises the value of what was already her own. It would seem hard and inequitable that the mere form of the instrument of conveyance should have the effect to deprive her of a valuable interest and right which she already possessed. Such a result was undoubtedly never dreamed of by the parties concerned when the conveyance was made. Nor does the law require it to be so. We are aware that there have been contrary decisions upon the point presented. Nor is there a satisfactory consistency upon it in the decisions of our own state. But we regard the opinion in the leading and important case of Foster v. Dwinel, 49 Maine 44, as a settlement of the question so far as the rights of this tenant are concerned. That case has been much commended by several text-writers since it was promulgated, and believing that the arguments and conclusions of the court therein are based upon sound logic and good sense, we see no good reason why it should not be adhered to in a state of facts like those presented in the present case : Bigelow on Estoppel 71; 2 Scribner on Dower 227.
Judgment for demandant for her dower in two-thirds of the premises described in the writ.
APPLETON, C. J., WALTON, BARROWS, DANFORTH and VIRGIN, JJ., concurred.
Circuit Court of the City of Richmond, Virginia. W. B. DUNCAN AND P. C. CALHOUN, Trustees, v. CHESAPEAKE &
OMIO RAILROAD CO. ET ALS. Employees of a defaulting railroad company are not to be considered as creditors at large of the company in regard to their claims for wages in arrears at the time of the appointment of a receiver for the company.
When mortgagees come into a court of equity seeking satisfaction of their claims against a railroad company by suit for foreclosure, they should be required to satisfy all arrearages of pay due employees out of the trust property or its futuro earnings,
Tuis was a cause in equity, which came up on motion and was heard at the February Term 1876 of the Circuit Court of the City
of Richmond, on the report of the Hon. W. C. Wickham, receiver, asking the instructions of the court as to the disposition of the surplus earnings of the railroad, and requesting to be allowed to discharge the arrears of pay due employees prior to his appointment as receiver.
W. J. Robertson, H. T. Wickham and W. H. Hogeman, for receiver, in support of the motion.
James Lyons and J. A. Jones, contrà.
Shipman and Barlow, Larocque f MacFarland, of New York, for complainants, assented to the motion.
WELLFORD, Circuit Judge. -Under orders heretofore entered in this cause, the court, in the interest of the creditors, has assumed control and administration through its receiver of all the franchises and property of the Chesapeake and Ohio Railroad Company. That company was successor to the Virginia Central Railroad Company, and in succeeding to all its franchises and rights of property, assumed all of its outstanding obligations.
It is admitted that these franchises and property thus acquired cum onere, are abundantly safficient to satisfy the creditors of the Virginia Central Railroad Company, and their claims are conceded to be paramount to those of any claimants under obligations of the Chesapeake and Ohio Railroad Company.
There appears to be no doubt that their claims will be paid to the full extent of principal and interest out of the property now under the control of the court.
These creditors have patiently forborne to press their rights, and being now entitled to payment of arrears of several instalments of interest, and some of them to payment of principal, may properly expect every reasonable consideration in the disbursement of any funds subject to the order of the court, as far as may be practicable, towards the satisfaction of their claims. But, unhappily for all parties to this cause, the immediate satisfaction of the most meritorious claims is altogether impracticable. My province is simply to determine how far it is practicable under the circumstances, and so far, to order that it shall be made.
The creditors of the Virginia Central Railroad Company, as well as all the creditors of the Chesapeake and Ohio Railroad Com
pany, who are practically interested just now in any orders of this court, claim under obligations of those companies secured by several deeds of trust executed by the respective companies, conveying in very comprehensive terms all corporate franchises and rights of property. These deeds were frequently in common parlance and are sometimes in these proceedings styled mortgages, and I shall accept the phraseology, notwithstanding its inaccuracy.
It was a substantial part of all these mortgages that the custody, control and administration of the trust property should be left undisturbed in the hands of the railroad company, not merely until default in the terms of their covenants, but thereafter, until, in the intelligent discretion of the trustees, or upon the command of large fractional representation of the bondholders, or in the judg. ment of a court of competent jurisdiction, such custody should be changed.
The character of the security offered for the investments asked by the corporation in placing its bonds upon the market, made tbis provision of the mortgages a most essential element of the contract. Each mortgage contemplated an indefinite number of cestuis que trust, varying in amount of interest and subject as to persons and amount to all the fluctuations of the money market. The security tendered was not to be measured in its value by the probable result of any every-day sale under the hammer of the auctioneer. The great value of the security consisted in the importance of the franchise and the providence with which the money contributed for its development should be appropriated to the construction of a great inter-state highway, the accumulation of all necessary material for transportation of persons and property, and an economical and energetic prosecution of the work. The corporation was engaged in a great experiment, and upon the success of that experiment necessarily depended, to a great extent, the value of all its obligations. But it was a corporation based upon solid and substantial investments, to which millions of money had been contributed by the Commonwealth and several of the counties of Virginia and many individual citizens of Virginia and her sister states.
The value of all this investment of capital was at stake, and made subordinate by the mortgages to the value of the bonds. The guarantee of the intelligent and watchful self-interest of the stockholders, to ensure the success of the experiment, was therefore no inconsiderable element in the security of the bondholder.