purchaser, discharge or redeem the mortgage, he thereby acquires an equitable lien upon the estate, which he may hold against the widow till she contributes her proportion of the charge according to the value of her interest." In the first proposition above stated by the learned author he is clearly and explicitly sustained by the case of Eaton v. Simonds,2 referred to by him. But it is not so clear that he is supported by the cases of Wedge v. Moore,3 and Smith v. Stanley,* cited to the same point. In Wedge v. Moore, the payment was made without the knowledge or consent of the husband by a junior mortgagee who had gone into possession under his mortgage. The tenant in possession occupied under a conveyance from this mortgagee. In Smith v. Stanley, the mortgage in which the wife had joined was released by the mortgagee and new notes and a new mortgage were taken from a purchaser from the husband. The estate in this case was not relieved by any person claiming under the husband, but by the creditor himself; and in neither of these cases was stress laid on the fact that the transactions took place in the lifetime of the husband.

23. Eaton v. Simonds, in which it was held by the Supreme Court of Massachusetts that a widow is not bound to contribute where a mortgage is redeemed in the lifetime of her husband, was decided before the passage of the Revised Statutes of that State. The distinction here taken is expressly repudiated in the subsequent case of Newton v. Cook, determined after those statutes went into operation. In that case a husband, who, before his marriage, had mortgaged land to a guardian for the benefit of the wards of the latter, afterwards became insolvent, and his assignee sold the land. The purchaser executed a new mortgage to the wards to secure a like amount, and the guardian discharged the first mortgage upon the record, pursuant to an express agreement that the mortgage to the wards should be substituted for that to the guardian. The purchaser of the right of the husband afterwards sold the land, and his grantee redeemed the mortgage before the husband's death. Under these circumstances it was claimed that the widow of the first

11 Washb. Real Prop. 186, 21. See, also, p. 188, 23.

2 Eaton v. Simonds, 14 Pick. 98, 107; ante, % 15.

3 Wedge v. Moore, 6 Cush. 8; ante, 13.

4 Smith v. Stanley, 37 Maine, 11; post, 47.

Newton v. Cook, 4 Gray, 46.

5 In 23, p. 188.

mortgagor was entitled to dower as of an unincumbered estate, and Eaton v. Simonds was relied on in support of this claim. But the court held that she was dowable of the equity of redemption only. Eaton v. Simonds, they said, was decided before the passage of the statute then in force, and could not have been decided as it was under Rev. Sts. c. 60, § 2. This ruling was followed in Pynchon v. Lester,' where, as in Newton v. Cook, satisfaction of the mortgage was made in the husband's lifetime, and it was held that the widow took her dower in the land subject to the mortgage. The same doctrine was held in Maine in the case of Barbour v. Barbour. The mortgage was satisfied in that case by the grantee of the demandant's husband more than twenty years before the death of the latter. The court, while approving the reasoning in Wedge v. Moore, nevertheless held that, under their statute, which is substantially the same as that of Massachusetts, the widow must either contribute, or take dower in the land according to its value after deducting the amount of the mortgage debt.

24. If the provisions of the statutes of Massachusetts and Maine relating to the matter of contribution by the widow, are to be understood as merely embodying the general doctrine prevailing in courts of equity, and not as introducing a new or different rule, then the cases above referred to would seem to establish precisely the converse of the proposition stated by Mr. Washburn. Those cases, and that of Eaton v. Simonds, appear to be the only reported cases bearing directly upon the question. In Carll v. Butman, it is not distinctly stated when the mortgage was released, whether before or after the death of the husband, but from the facts as reported, it would seem to have been in the husband's lifetime. The widow, nevertheless, was required to contribute. And unless some technical rule should interfere to prevent it, it is difficult to perceive any sufficient reason why the principle requiring a dowress to contribute should not be applied as well where the incumbrance is redeemed in the lifetime of the husband, as where the redemption occurs after his death. The equity of the purchaser, upon which this principle is founded, appears to be as strong in the one case as in the other.5

Pynchon v. Lester, 6 Gray, 314.

8 Wedge v. Moore, 6 Cush. 8; ante,

13.

4 Carll v. Butman, 7 Greenl. 102; post, 32.

2 Barbour v. Barbour, 46 Maine, 9.

5 [See Ross v. Boardman, 22 IIun, 527; Atkinson v. Stewart, 46 Mo. 510; Ketchum

v. Shaw, 28 Ohio, 503.]

Principal or interest of the mortgage debt must be payable before contribution can be required.

2

25. It has already been shown that the mortgagee can not interfere with the endowment of the widow of the mortgagor, until he is entitled to demand a sale of the mortgaged premises; or in other words, until the mortgage debt, or some part of it, has matured. Upon the same principle, the heir, or other person deriving title under the husband, cannot insist upon contribution by the widow until the principal debt, or some part of it, or the interest accruing thereon, becomes payable; and then only to the extent of her proportion of the amount which has actually become due. If, therefore, no part of the debt-principal or interest-becomes payable during the lifetime of the widow, she will escape entirely all liability for contribution. In the case of Danforth v. Smith, Redfield, J., has the following observations upon this point: "The general rule of equity is, that all the estates concerned, whether defined by quantity of interest and duration, or by extent of territory, shall contribute according to their relative value at the time the contribution becomes obligatory, which is, when the debt falls due; for until that, there is no power to compel payment, or contribution. If this mortgage did not become due for thirty years, or the interest, it might be very unequal for the dowress to throw the whole burden upon the owner of the reversion or remainder; but I do not see how, upon general principles of equity, such a result could be avoided. The probate court might have some control over the matter, in making the assignment; but I do not see how it could be done in a court of equity before anything was due. The tenant for life must be allowed equity to enjoy the estate, I think. But when the debt becomes due, so that a right to have it apportioned accrues, the estates must bear the burden, according to their relative value at the time." But if the interest be payable during the time the principal debt has to run, or if the principal be due and the creditor do not desire to enforce payment, in either case the widow must contribute her part towards keeping down the accruing interest.3

1 Ante, ch. 23, 1.

2 Danforth v. Smith, 23 Verm. 247, 259. 3 Post, 27; Bell v. Mayor N. Y., 10 Paige, 49, 71.

Extent to which the widow must contribute.

26. The principle upon which a dowress must contribute to the redemption of a mortgage incumbrance upon lands in which dower is claimed, is thus stated by the chancellor, in Swaine v. Perrine: "How is the plaintiff to contribute rateably to discharge the mortgage debt? If she was to pay one-third of the debt and interest (exclusively of costs) paid by the defendant, together with interest on that one-third, from the time the defendant paid it, there could be no doubt that this would be, to the defendant, a satisfactory contribution. But the plaintiff has only a life interest in the dower, and payment of the entire one-third of that debt would be unjust. It would be making her pay for a life estate, equally as if it was an estate in fee. The more accurate rule would appear to be that she should 'keep down' one-third of the interest of the mortgage debt, by paying, during her life, to the defendant, the interest of onethird part of the aggregate amount of the principal and interest of the mortgage debt paid by the defendant, to be computed from the date of such payment. But as it would be inconvenient and embarrassing to charge her with such an annuity, then let the value of such annuity from the plaintiff (her age and health considered) be ascertained by one of the masters of the court, and be deducted from the amount of the rents and profits so coming to her; and if that value should exceed the amount of the rents and profits so coming to her, that then the residue of such value be deducted from the dower to be assigned to her, out of the house and land mentioned in the bill. The question is, if an estate in fee, in one equal third part of the premises, ought to pay the one equal third part of the mortgage debt and interest paid by the defendant, then what proportion ought the plaintiff's life estate, in that one-third part, to pay? I apprehend the value of such an annuity would be that result." 27. The following, from the opinion of Chancellor Walworth in Bell v. The Mayor of New York, is upon the same subject:

1 Swaine v. Perine, 5 John. Ch. 482.

2 Swaine v. Perine, 5 John. Ch. 482, 493; accord. Evartson v. Tappen, Ibid. 497, 513; approved in Gibson v. Crehore, 5 Pick. 146, 152; Cass v. Martin, 6 N. II. 25, 26; Rossiter v. Cossit, 15 N. H. 38, 43; Clough v. Elliott, 3 Foster, 182, 188; Woods v. Wallace, 10 Foster, 384, 388; Hartshorne v. Hartshorne, 1 Green's Ch. 349, 359. 3 Bell v. The Mayor of New York, 10 Paige, 49, 71.

"Where the widow is entitled to dower in an equity of redemption, and the mortgagee does not wish to enforce payment of the principal of his debt, the rule is, that as between her and the heir, or other owner of the equity of redemption, she must contribute sufficient to keep down one-third of the interest on the amount due." It will be perceived that the mode of apportionment here suggested relates to a case where the mortgage is not redeemed, but is still outstanding; and where, by reason of forbearance of the mortgagee, payment of the accruing interest, only, of the mortgage debt is to be provided for. In House v. House, the rule in such case was stated in similar terms: "It is stated in the bill, and admitted in the answer, that the two mortgages upon the grist-mill were given to secure the payment of the purchase-money. In relation to that portion of the property she takes her dower subject to the mortgages. She must, therefore, keep down one-third of the interest from the time of her husband's death, upon the amount of principal and interest then unpaid, until the mortgages are required to be paid off; and then she must contribute towards such payment, a sum which will be equal to the then value of an annuity the amount of one-third of the interest upon the sum unpaid at her husband's death, for the residue of her life."

28. In a case that arose in Vermont, the following points were determined. 1. In Vermont, probate courts have exclusive jurisdiction of the assignment of dower; and if the dowress claim a special rule of apportionment, the probate court can alone establish such rule in her favor. But if that court assign dower generally, in an equity of redemption, without determining the proportion the widow shall contribute, it is equivalent to saying that it shall be in proportion to her estate. A court of chancery, upon a bill brought by the dowress to redeem, bas jurisdiction to determine the proportion she should contribute, upon the general rule of equity in such cases, except so far as the parties may have varied that rule, by an agreement executed at the time. 2. The mere fact that the estate has been purchased subject to the incumbrance and to dower, is not sufficient to raise any special rule of apportionment, varying from the ordinary rule in equity. 3. The general rule of equity is, that all the estates concerned, whether defined by quantity of interest

1 House v. House, 10 Paige, 158, 164. [Scc Bank of Commerce v. Owens, 31 Md. 320; Ross v. Boardman, 22 Hun, 527; Greenbaum v. Austrian, 70 Ill. 591.]