¶1(concurring in the decree, but dissenting, in part, to the opinion. :
¶2I concur in the reversal of the decree because of the error in ordering a sale of all the land, before settlement of the partnership and ascertainment of the’ amount of assets that testator’s estate will receive therefrom, and application thereof to the relief of the incumbered land. The widow’s dower and the inheritance of the heirs, in the equity of redemption, entitled them to that relief. I do not concur in that part of the opinion which holds that the widow is entitled to have the land incumbered by trust deed in which she joined her husband, sold subject to dower, and, in the event enough •money is thereby realized to pay the balance of the indebtedness, to have dower in kind, as if no such lien existed. That excludes the heirs whose equity in the incumbered land is of equal dignity with her own. She is only entitled to dower in the equity of redemption, or surplus, not in the land itself. True her right is superior to all creditors, except vendor’s lien creditors, and creditors whose liens existed before marriage or were created thereafter by mortgage or trust deed in which she joined, and is, of course, superior to the rights of *349the heir, so far as payment of debts of the estate is concerned. The inheritance is subject to the rights of all creditors, while dower is affected by a certain class of debts only. But, by uniting in a mortgage, the widow’s dower in the mortgaged land, under the doctrine of marshalling assets, becomes inferior to the right even of a general creditor. By uniting in the mortgage Mrs. Dudley released her contingent right of. dower, which is thereafter a mere equity, not a legal estate, and can never become such until redemption. She is entitled only to dower in the surplus remaining after payment of the debt secured by the trust deed in which she joined. She gets it by virtue of statute, for by the common law the widow was dowable in a legal estate only. The fault I find with the opinion is, that it in effect allows the widow dower as if she had never released it, notwithstanding it'is necessary to sell the greater portion of the incumbered land to pay off the incumbrance. She commuted her dower in all other lands of her husband’s estate, which were sold, and could have applied that money to the discharge, pro tanto, of the incumbrance on the home place. If she had done so she would have been subrogated, pro tanto, to the right of the trust deed creditor as against the heirs. On the other hand, the heirs had the right to discharge the lien and thereby be subrogated to the lienor’s rights as against the widow. The existence of this right is proof of their present equity in the incumbered land.
¶3The wife was not dowable.at common law in an equitable estate, and is now dowable therein only by virtue of statute. See. 17, Ch. 71, Code 1913; Rowton v. Rowton, 1 H. & M. 92; and Claiborne and wife v. Henderson, 3 H. & M. 322. Notwithstanding that statute, passed in Virginia in 1785, conferring right of curtesy and dower upon husband and wife, respectively, in trust lands, wherein they are the respective owners of a beneficial estate of inheritance, it was, nevertheless, thereafter held by the court of appeals of that state, that the widow was not dowable in the surplus remaining after satisfaction of a lien for the purchase money. Wilson v. Davisson, 2 Rob. 384. That decision was rendered by a divided court composed of three judges; and, in order to settle the question, the revisors of the code recommended to the legislature the passage of an act conforming the law to *350the majority opinion. Revisors Reports, p. 565. The legislature, however, refused to pass the act in the form as recommended, and amended it, endowing the wife in the surplus. That statute has come down to us without any material alteration. Sec. 3; Ch. 65, Code 1913. Notice that it was not the legislative purpose to endow the wife in the land, incumbered as therein described, but only in the surplus. The statute expressly says, “she shall have no right to be endowed in the said land. ’ ’ That is exactly what the court had decided the law was before the act was passed. If the statute is applicable only in case a sale of the incumbered land is made in the life time of the husband, it necessarily follows that the wife is not entitled to dower, even in so much as the surplus, in the case of a sale made after his death. But I think the statute was intended to apply whether the sale is made before or after the husband’s death. ITis death only consummates the contingent -dower created in the surplus by the statute, the only purpose of which was to endow the wife in the surplus. If it does not do that, in the ease of a sale made after her husband’s death, she has not dower in either land or surplus, because the common law only then applies. To limit the application of the statute to sales made in the husband’s lifetime would produce absurd results which the legislature certainly never intended. It would cause the husband’s death,, an event necessary to consummate dower, to defeat the contingent right of dower in the surplus, expressly created by the statute.
¶4To sell land subject to dower, to satisfy a trust deed lien in which the wife had joined, is equivalent to assigning dower in the whole of the land, as if it had not been released. By joining in a mortgage or trust deed on her husband’s land, the wife releases dower in all but the equity of redemption. The value of that equity is the surplus remaining after satisfying the lien. If a sale is not made in the husband’s life time, the equity of redemption, being an established inheritance, passes to the heirs, subject of course to dower, and entitles the heirs to redeem. In case they do so, equity requires the widow to contribute ratably before she can have dower in the land. 4 Kent’s Com., p. 39; Gibson v. Crehore, 5 Pick. 146; Swain v. Perine, 5 John’s Chan. (N. Y.) 482; *351Russell v. Austin, 1 Paige, (N. Y.), 192; Mills v. Van Voorhis, 23 Barb. 125; Bell v. The Mayor, 10 Paige 49; Adams v. Hill, 29 N. H. 202; 1 Jones on Mortgages, Sec. 666; 1 Washburn Real Property, Sec. 396; 1 Schribner on Dower, (2nd ed.), pp. 530 and 531; Williams on Real Property, (17th ed.), pp. 378 and 379. Where the wife has joined in the mortgage or trust deed, she can not claim dower in the incumbered land, if the effect is to defeat the husband’s general creditors. 1 Washburn on Real Property, Sec. 396; Creecy v. Pearce, Admr., 69 N. C. 67; and Rossiter v. Cossit, 15 N. H. 38. Quoting from Judge Coalter’s opinion in Heth v. Cooke, 1 Rand. 344: “If she parts with her dower by joining in a mortgage after marriage, leaving' only an equity in her husband, which enures to her under the act, it cannot be said that it enures to her as a legal estate, which- she is entitled to assert without redeeming; otherwise, her joining in the mortgage would pass nothing. Surely in such ease, she only has a right to redeem.” And in 1 Lomax Dig. 103, the rule is thus stated.- “If the heirs redeem, or the widow brings her writ of dower, she is let in for her dower on her contributing her portion of the mortgage debt. ” In a comparatively recent decision the supreme court of Virginia has reiterated the rule. Hoy v. Varner, 100 Va. 600, 42 S. E. 690. The court there decides: “Where there was no sale of the land in the lifetime of the husband, as in the case at bar, the equity of re- ' demption descends to the heir, subject to the widow’s dower; but before she can be endowed in the whole land she must pay an equitable proportion of the liens or incumbrances on the land paramount to her dower. ’ ’
¶5Approving Heth v. Cook, supra, this court, in Martin v. Smith, 25 W. Va. 579, held that: “A widow is not entitled to dower in real estate subject'to a vendor’s lien except as to the residue after satisfying such lien. ’ ’ So far as they affect dower, a vendor’s lien and a mortgage or trust deed in which the wife has joined, stand on the same footing. In Barbour v. Thompkins, 31 W. Va. 410, a case in which land of the husband was sold to satisfy a trust deed in which the wife had joined, and also other liens not affecting her dower, some of which were prior, and some subsequent, to the trust deed, this court held that: “the wife has no contingent right to *352doAver except in the surplus, after tbe trust lien is paid in full. ’ ’ Having contingent dower in the surplus only, hoAV is it logically possible for her to acquire dower consummate in any more than the surplus, unless she redeems? In Sinnett v. Cralle’s Admr., 4 W. Va. 600, it was expressly held to be error to decree a sale of land subject to dower, to satisfy a vendor’s lien. In that case, as in this; the sale had been decreed after the husband’s death, in a suit to settle his estate; and this court reversed the decree for the error committed in decreeing the sale to be made subject to doAver. I am clearly of the opinion that the only proper way to sell the Dudley home place is to sell it free of dower, and let Mrs. Dudley be endowed in the surplus, if any, after payment of all her husband’s debts. The surplus, unquestionably, should go to the heirs, subject to dower. Mrs. Dudley is entitled to dower in the surplus of sales of the whole of the home place, that part heretofore sold as well as the part to be hereafter sold.