OHILDS VS. SMITH. 487

Upon examining the return of the commissioners, it is by no
means apparent, that the partition among the heirs, preceded
the assignment of dower to the widow ? and seeing that by the
27th section of the act of 1820, ch. 191, the dower is to be
ascertained and laid off, before the division among the heirs is
made, it may be very fairly inferred, that though the lines of
the several lots may have been previously run out and laid
down; yet still the dower was ascertained, and laid off, before
an actual allotment and partition among the heirs. But at all
events, be this as it may, the act of the commissioners, in
laying down and assigning the dower, and making partition
among the heirs, was not consummated and binding, until
their return was ratified by the court, and, therefore, their whole
proceedings in assigning dower, and making partition, may be
regarded as taking effect at the same time.

I do not, however, regard this question, as at all material
to the rights of the widow in her dower lands. Whether the
assignment of her dower proceeded, or followed the partition
among the heirs, in the order of time, can, in my judgment,
have no influence in determining the extent to which she may
use her lands. Her interest is a continuation of the seizin of
her husband; the seizin of the heir being defeated, ab initio,
the moment the certainty of the estate to be held by the widow
is ascertained by the assignment. 1 Roper on Husband and
Wife, 427; 4 .Kent's Com., 69.

So soon, then, in this case, as the particular lands which the
widow was to hold for her dower, were ascertained by the
assignment of the commissioners, the right of the heirs was
defeated, whether the partition among them had been made,
or not, and the dowress was in, in legal intendment, of the
seizin of her husband.

The Chancellor cannot subscribe to the doctrine, that the
widow was bound to use each parcel of her dower land, as
if her husband had died seized only of the one lot, to
which such parcel belonged. The inconvenience of such a
rule would be so severely felt, that nothing but the most con-
trolling authority would induce me to follow it.