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HERBERT AND OTHERS v. WREN AND WIFE AND OTHERS.

February 15, 1813

HERBERT AND OTHERS
v.
WREN AND WIFE AND OTHERS.



Present. All the Judges except TODD, J.

ERROR t the Circuit Court for the district of Columbia, sitting at Alexandria, in a suit in Chancery brought by Richard Wren, and Susanna, his wife, who was the widow of Lewis Hipkins, deceased, and John and Westley Adams, her trustees, against W. Herbert, T. Swann, R. B. Lee, and W. B. Page, (trustees of Philip R. Fendall, deceased) and E. I. Lee, Jos. Deane and F. Green.

The case was stated by MARSHALL, Ch. J. (in delivering the opinion of the Court) as follows:

This suit was brought by Richard Wren, and Susanna, his wife, formerly the wife of Lewis Hipkins, praying that dower may be assigned her in a tract of land of which her former husband died seized, and which has since been sold and conveyed to the Defendant, Joseph Deane, or that a just equivalent in money may be decree her in lieu thereof.

The material circumstances of the case are these:

Lewis Hipkins being seized as tenant in common with Philip Richard Fendall of one third of a tract of land lying in the county of Fairfax by his deed executed by himself and wife, leased the same to Philip Richard Fendall for the term of thirteen years, to commence on the first of September, in the year 1794, at the annual rent of 140l.

In the year 1794 Lewis Hipkins departed this life, having first made his last will and testament in writing, in which he devised both real and personal estate to his wife: the real estate for her life, with remainder to his three daughters.

To his two sons he devised the premises in question, and added that if, during the minority of his sons, Philip R. Fendall should erect thereon another water mill or water mills, has desire was that his sons or the survivor of them should, at the expiration of the lease for years made to the said Philip pay one third part of the value of such mill or mills, and in default of payment that P. R. Fendall should be permitted to hold the same at the present rent until the value should be received.

He directed his two tracts of land in Loudon to be sold for the payment of his debts, and appropriated the annual rent accruing on the lands leased to P. R. Fendall to the education and maintenance of his children.

The testator then adds the following clause:

'If it should so happen that the remaining part of my estate not herein bequeathed should prove insufficient to pay all just demands against my estate, then my will and desire is that my executors shall sell as much of my real and personal estate as may be necessary to make up the deficiency, and that they shall sell such parts as will divide the loss among my representatives as nearly as may be in proportion to the property bequeathed to them and each of them.'

On the 13th day of December, in the year 1797, Susanna Hipkins, then the widow of Lewis Hipkins, conveyed her dower in the premises in question and also in the land devised to her for life by her deceased husband to the Plaintiffs, John Adams and Westley Adams, in trust for her use.

In the year 1803 P. R. Fendall and Walker Muse instituted a suit against the executors and children of Lewis Hipkins, deceased, and in the month of June in that year the cause came on to be heard by consent of parties, when the Court decreed that the whole estate of Lewis Hipkins be sold and the money brought into Court.

The report of the sale does not appear on the record, but an entry was made that the report was made and confirmed by the Court.

Under this decree the premises were sold and conveyed to the Defendant, E. I. Lee, who purchased in trust for P. R. Fendall, one of the executors of Lewis Hipkins. On the deed of conveyance is a memorandum stating that the property was sold subject to dower.

Lee conveyed the premises to the other Defendants, trustees of P. R. Fendall, for the purposes of a trust deed which had been previously executed conveying to them the other two thirds of the same estate on certain trusts in the deed recited.

The trustees sold and conveyed to the Defendant, Joseph Deane.

The bill states that the Defendant, Joseph Deane, had not paid the purchase money, and was willing, should the Court decree dower in the premises, to give an equivalent in money in lieu thereof.

Soon after the trust deed from Susanna Hipkins to John and Westley Adams she intermarried with the Plaintiff, Richard Wren.

Philip R. Fendall continued to pay the Plaintiff, Susanna, during her widowhood, and the Plaintiffs, Richard and Susanna, after their intermarriage, one third part of the rent accruing on the premises devised to him by Hipkins and wife until the year 1803: since which he has refused or neglected to pay the same.

The Defendants, the trustees of Philip Richard Fendall, he having departed this life previous to the institution of this suit, insist,1. That the remedy of the Plaintiffs, if they have any, is at law, and that a Court of equity can take no jurisdiction of the cause.

2. That the provision made by the will of Lewis Hipkins for the Plaintiff, Susanna, not having been renounced by her, bars her right of dower in his estate.

The Defendant, Joseph Deane, has put in no answer, and as against him the bill is taken as confessed.

The Circuit Court determined that the claim of the Plaintiff, Susanna, to dower was not barred, and decreed her a sum in gross as an equivalent therefor.

From this decree the trustees of Philip Richard Fendall have appealed. The Plaintiffs also object to so much of the decree as refuses them rent on the premises, and have ...


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