Reiff v. Horst

Irving, J., delivered the opinion of the Court. The motion to dismiss this appeal cannot prevail. By section 22 of Article 5 of the Code of Public General Laws, it is provided, that “ on an appeal from a final order all previous orders which may have passed in the cause shall he open for revision in the Court of Appeals, unless an ⁴⁶ appeal under the next preceding section may have been previously taken to such order.” In the 21st section, which is “ the next preceding section ” referred to, one of the things from which an appeal may be taken and for which that section provides, is “ an order determining a question of right between the parties, and directing an account to be stated on the principle of such determination.” The prayer for appeal in this case is not only from the order of ratification of the auditor’s account stated July 10th, 1880, under the order of the Court, passed June Yth, 1880, but also “from all action had herein respecting the said account and the distributions therein made, and all proceedings subsequent to the remanding of the cause by the Court of Appeals of Maryland.” This prayer of appeal therefore by its express terms is sufficient to embrace an appeal from the order of the Court, whereby the exceptions to the former audit were passed upon, and the audit stated in accordance with the instructions of the appellant’s counsel was set aside, and the opinion of the Court establishing the principles by which the audit was to be controlled and the question of right between the parties was settled. All these were proceedings had in the cause after the same was remanded from this Court on the former appeal.

In disposing of the questions raised on the other audits, the Court determined the question adverse to the view of the appellant, and by its order directed an account to be stated, in accordance with the principle so fixed by the Court. Under such circumstances therefore it was not indispensable to the consideration of the objection now made to this audit, which has been finally ratified, that a formal exception should have been made thereto. The audit appears to have been made in pursuance of an order' directing its mode of statement, which order was the determination of a question already before the Court, and was the subject of appeal, and is, by the prayer of appeal, appealed from. In our opinion ⁴⁷ therefore there is no ground for dismissing the appeal.

The only question made and relied on by the appellant is, that in the order directing the account to he stated, and in the account accordingly stated, Mrs. Horst has been allowed a sum in lieu of her inchoate right of dower in the property sold and being distributed, which was not warranted by the principles established hv this Court on the former appeal, and which was directed by the opinion remanding the cause to he observed in the statement of the account. The interest of the wife in her husband’s real estate is inchoate only during his life, it requires the husband’s death to occur before it becomes a vested right. As this Court defines it in Buchanan vs. Deshon, 1 H. & Gill, 280, “ she has no vested right, it is altogether contingent, depending upon her surviving her husband.” In Hawley vs. Bradford, 9 Paige, 201 , the Chancellor says: “ Strictly speaking, the wife has no interest or estate in the lands of her husband during his life, which is capable of being mortgaged or pledged for the payment of his debt. Her joining in a mortgage therefore merely operates by way of release or extinguishment of her future dower as against the mortgagor, if she survives her husband, hut without impairing her contingent right of dower in the equity of redemption.

If the mortgage he foreclosed in the life-time of the husband, she has no claim on the surplus proceeds of sale; hut if her husband he dead when foreclosure takes place her dower right in the equity of redemption having then become consummate, she would he endowed of the surplus proceeds.” 1 Scribner on Dower, 478; 5 Johnson’s Ch. Rep., 452. In the last cited case, Chancellor Kent says, it is very clear this is the law. It results from these authorities that the wife’s inchoate right is not such a right as may he bargained and sold.

Her deed does not pass any title. It operates only by way of estoppel or release. And any words of release would he as effectual as words of grant. ⁴⁸ She cannot convey it to a stranger. It is only released to the owner of the fee. 1 Washburn on Real Estate, 247 and 301, and the authorities there cited.

The decision of this case on the former appeal, was not intended to conflict with these well established principles; nor, as the opinion in that case was intended to he understood, does it establish for the settlement of the equities in this case any rule not in harmony with those principles. This Court decided that having