mortgaged land sold in exoneration of her dower. Ruffin v. Cox, 71 N. Č. 253; Overton v. Hinton, 123 N. C. 1, 31 S. E. 285.

In Gwathmey v. Pearce, 74 N. C. 398, the wife having joined her husband in the execution of a mortgage upon land in which, under the act of 1868, she had an inchoate right of dower, which was sold under the power contained in the mortgage, she was permitted to prove, as a debt against the estate of her husband, and share in the general assets, the value of her dower-one-third the value of the mortgaged lands. The court regarded her right as the same as if she had mortgaged, for the security of her husband's debt, her separate real estate, making her, to the extent of the value of her dower, a surety of the husband. In that case the court treated the entire one-third of the price for which the land was sold under the mortgage as the measure of the value of her dower. The question as to the "present value" was not raised or referred to.

In Gore v. Townsend, 105 N. C. 228, 11 S. E. 160, 8 L. R. A. 443, it is held that the wife, who has joined her husband in the execution of a mortgage, was entitled, in exoneration of her dower, to have the personal estate of her husband applied to mortgage debt. In Southern Loan & Trust Co. v. Benbow, 135 N. C. 303, 47 S. E. 435, it is held that the inchoate right to dower, while not an estate in her husband's land which can be assigned or conveyed by the wife, is a valuable right; that its release, by way of mortgage, to secure her husband's debt, constitutes a valuable consideration, and will sustain a promise on his part to pay the value thereof. 10 A. & E. Enc. 143. It is held in this state that, until the death of her husband and the allotment of dower, the widow has no present estate or title to any part of her husband's lands. Fishel v. Browning, 145 N. C. 71, 58 S. E. 759.

Reference to the text-books does not aid in fixing the character of the wife's inchoate right to dower in her husband's lands. Scribner says:

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"It is difficult to state with precision the nature or qualities of inchoate dower interest, when considered as a part of the husband's property. A certain vagueness of expression uniformly characterizes the discussions on the subject, and these discussions are commonly attended with unsatisfactory results. Although, therefore, an inchoate right of dower cannot be properly denominated an estate in lands, nor a vested interest therein, and notwithstanding the difficulty of defining with accuracy the precise legal qualities of the interest, it may, nevertheless, be fairly deduced from the authorities that it is a substantial right, possessing, in contemplation of law, the attributes of property and to be estimated and valued as such." Dower, 5.

Mrs. Munford would have been entitled, for the protection of her inchoate right of dower, released by joining her husband in the execution of the mortgages, to redeem the land, and as against the heir and creditors of her husband the excess sold in exoneration of her dower. 10 A. & E. Enc. 166. She would have been entitled to a decree in a court of equity directing the sale of the several tracts of land in such manner as to exonerate her dower, but it is apparent that she would have derived no benefit from doing so. The several tracts were mortgaged to amounts approximating their full value. She therefore sustained no injury by permitting the mortgagees to sell free of

her dower right. It would seem that, upon the authority of Gwathmey v. Pearce, supra, she may have waived her claim to dower in the proceeds, and proven as a creditor her claim for the value of her inchoate dower right in the land. She would, however, encounter practical difficulty in ascertaining to what amount she would have been entitled.

Having elected to claim her dower in the proceeds, the question arises: What is the extent of her right and its present value?

She contends that, as against the trustees, she is entitled to the present worth of one-third of the entire proceeds of the land. The question presented by this contention has not been decided by the Supreme Court of this state. Reference to text-books and decisions of other courts, in which the wife is entitled to dower in the equitable estates of the husband, does not sustain her contention.

In 2 Jones on Mortgages, 1693, it is said:

"A widow, who has joined her husband in a mortgage of land of which he is seized, is in equity entitled to dower in the surplus money, arising from a foreclosure sale of the property, after satisfying the mortgage debt. To the extent of the debt secured by the mortgage, in which she released, her dower interest is extinguished, and she is dowable only in the surplus. The surplus stands in the place of the equity of redemption, and retains all the properties of realty, and does not become personalty for the purpose of distribution among the next of kin." Scribner, Dower, 697; Hall's Adm'r v. White, 114 Va. 562, 77 S. E. 474; Titus v. Neilson, 5 Johns. Ch. (N. Y.) 452; Denton v. Nanny, 8 Barb. (N. Y.) 618; Vartie v. Underwood, 18 Barb. (N. Y.) 562; Keith v. Trapier, Bailey Eq. (S. C.) (750) 63.

This is the general rule. 10 A. & E. Enc. 169.

[2] The next, and most difficult, question for solution is the method of securing the right to the wife, pending the life of her husband. Prior to the adoption of mortuary tables, which the courts accept as evidence upon which the expectancy of a person entitled to an estate for life in money may be ascertained, much doubt was expressed whether there was any basis upon which the present value of such interests could be ascertained. In Titus v. Neilson, 5 Johns. Ch. (N. Y.) 452, Chancellor Kent directed that one-third of the surplus proceeds from the sale of lands mortgaged by the husband and wife jointly, sold after his death, be invested in government stocks and the interest paid to the widow during her life. In Denton v. Nanny, supra, the Chancellor says:

"The widow does not ask to have this money put into her immediate possession. She would have no right to that. But she insists that the residuum of the subject mortgaged, not required to satisfy the mortgage debt, whether it exists in lands unsold, or in the proceeds of lands sold, shall be so appropriated as to secure her dower, should she survive her husband. This, I think, she is entitled to have done."

The same course was pursued in Vartie v. Underwood, supra. In Herbert v. Wren, 7 Cranch, 370, 3 L. Ed. 374, Judge Marshall directed that the fund representing the dower interest, the husband being dead, be invested and the interest paid to her during her life, unless both parties consented to the payment of a sum in gross in lieu of dower. It is held by some courts that, unless all parties in

interest consent, the present worth of the dower interest in funds derived from sale of the lands, in which she is entitled to dower, will not be paid to the widow. This appears to be the rule in Virginia. 10 Am. & Eng. Enc. 181 (note).

In several states statutes have been enacted empowering the court to ascertain the present value and pay it to the widow. Such statutes apply only when the husband is dead and the widow's dower 'right has vested. As said by Ruffin, C. J., in Atkins v. Kron, 43 N. C. 1, and other chancellors, it is difficult to adopt a satisfactory basis upon which to fix the expectancy of the widow and ascertain the present value of her dower. The mortuary tables are only evidence to be considered with other evidence relevant to the question. When, as in this case, the husband is living, with an expectancy of 17 years, the problem is burdened with uncertainty. There are so many contingencies involved that any result is speculative.

It is doubtful whether courts, under such conditions, should, without the assent of all persons interested, dispose of property rights. The legal statutory right of the parties is fixed, easily protected and enforced. The investment of the fund and payment of interest to the husband, or the assignee of his interest, until the dower right vests, secures to the widow her dower right, which may be enjoyed by receipt of the interest during her life, with the payment of the corpus, representing the reversion, to the heir or his representative. Is it not more in accord with that certainty, which is "the mother of quietness and repose," and the beneficent policy of the law which seeks to protect and secure an income to the widow when deprived of the support of her husband, to hold the fund for that purpose, than, by resorting to a speculation based upon a speculation, give her, 17 years before his death, a sum arrived at by a mere guess? As illustrative of the difficulty experienced in reaching a reasonably satisfactory basis for fixing the present value of Mrs. Munford's dower right, she, with much force, insists that, if she shall, as the court is asked to assume, survive her husband, she will, at his death, be 65 years of age, with an expectancy of 11 years.

In Brown v. Brown, 94 S. C. 492, 78 S. E. 447, the court approved the rule laid down by Chancellor Walworth in Jackson v. Edwards, 7 Paige (N. Y.) 386, which was followed by the special master for ascertaining the present value of the dower when the husband was living. The court in that case dealt with the question only incidentally. It was not the point in controversy.

In the absence of a statute empowering the court to ascertain and pay to Mrs. Munford what may, by speculation, be supposed to be the present value of her dower right, or the consent of all parties in interest to the payment of the amount fixed by the special master, a decree will be signed directing the trustees to invest one-third of the surplus of the proceeds of the sale of the lands mortgaged, in United States Liberty Bonds, and upon final settlement of the estate deliver them to the clerk of this court at Raleigh, to be held for the purposes indicated herein. A decree will then be signed, protecting the interest of the parties. As the trustees do not except to the find

ings of the special master, if Mrs. Munford shall elect to accept in lieu of her dower the amount, $912.73, found to be its present value, a decree may be drawn confirming the report in that respect.

The exceptions to allowance to attorneys will be disposed of separately.

[3] 1. The master recommends that an allowance of $1,250 be made to the attorneys for the petitioning creditors. The creditors insist that this amount is excessive. The authority for allowing counsel fees to attorneys for petitioning creditors in involuntary cases in bankruptcy is found in section 64 (3) of the act (Act July 1, 1898, c. 541, 30 Stat. 563 [Comp. St. § 9648]). Collier on Bankruptcy (11th Ed.) 985. The allowance is confined to—

"one reasonable attorney's fee for the professional services actually rendered, irrespective of the number of attorneys employed, to the petitioning creditors."

To such allowance the petitioning creditors, or their attorneys, are entitled, as a matter of right. The sole question, open for the action of the court, relates to its amount. The amount must, of course, be reasonable, and be determined upon the evidence of the service performed and its value.

"The amount to be allowed rests in legal judgment and judicial discretion, but not in unrestrained discretion." In re Williams (D. C.) 240 Fed. 788.

In exercising legal or judicial discretion, the court should endeavor to ascertain the rule or principle by which other courts in like cases have been governed, taking into account such modifying conditions or circumstances as may be found in the instant case.

The principles upon which, in view of the language of the statute and the purpose of the Congress in its enactment, allowances to attorneys for petitioning creditors, in involuntary cases, should be made, was carefully considered by Judge Brawley, and his conclusions stated with his usual clearness, in Re Goldville Mfg. Co. (D. C.) 123 Fed. 579. In that case he dealt with almost every phase of the question relating to allowance of attorneys in involuntary proceedings in bankruptcy. The learned judge said:

"That discretion should be exercised to carry out and effectuate the legis lative will, and the courts cannot honestly disregard the manifest policy of the law, which looks to great economy of administration. 串 That discretion must be in accordance with, and not in conflict with, the policy of the law."

It is uniformly held, and is in accordance with the plan provided by the act for dealing with such cases, that the allowance is to be confined to "services actually rendered" in filing the petition and prosecuting it to the adjudication of the bankrupt. When this is accomplished, the estate passes under the jurisdiction and control of the court and its officers; the interest of the petitioning creditors, usually a small minority in number and amount of the general creditors, is merged into that of all of the creditors. The purpose of the act, the seizure and administration of the property of the bankrupt for the benefit of all the creditors, is accomplished. There is neither necessity nor opportunity for the attorney of the petitioning creditors to 255 F.-8

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render "actual service" to the estate. The suggestion, therefore, that the attorneys in this case "have been diligent and faithful for nearly two years, and largely through their efforts the amount in the hands of the trustees is as large as it is," while true, cannot be taken into consideration in fixing the allowance.

In rendering service after the adjudication and election of the trustee, counsel were serving their clients, whose claims they held for collection. Other creditors had employed other counsel, and the estate is charged with counsel fees of an attorney for the trustees. I find that, of the 116 creditors who have proven debts, counsel for petitioning creditors represent 43 in number; the amount, however, is more than one-half of the whole. The bankrupt had, within four months of his adjudication, executed a deed of assignment of his stock of merchandise. This was the principal and sufficient act of bankruptcy upon which he was adjudged a bankrupt. He had, more than four months prior thereto, executed mortgages or deeds of trust on real estate. There was no complication in regard to either of these transactions. He admitted insolvency and offered a composition, to which the requisite number of his creditors did not assent, and it was not confirmed. The attorneys for petitioning creditors appeared before the court and objected to the confirmation. There was no litigation in connection with the proceeding.

It is true, as found by the special master, that the attorneys successfully resisted the acceptance of the offer of a 10 per cent. composition, and that the creditors will, in this proceeding, receive approximately 40 per cent. This should be taken into consideration in fixing the amount of the allowance. The lands were sold by the mortgagees or trustees to whom they were conveyed, and the debts, in regard to which there was no controversy, paid; the excess, constituting a large portion of the assets for distribution, paid to the trustees. The stock of goods was sold by the trustees. From these sources the bulk of the assets for distribution were derived. An examination of such cases as I find in the Federal Reporter brings me to the conclusion that an allowance of $750 to the attorneys will be ample. For such services. as they shall have rendered in securing the enlargement of the volume of the assets for distribution, in which their clients share, they will, as they are entitled, receive compensation from them.

In fixing the allowance, I am not inadvertent to the zeal and skill displayed by counsel in the prosecution of this proceeding, nor to the personal and professional courage manifested; but much of this service relates to the administration of the estate, causing the stock of goods and the lands to bring more than they otherwise would have done. It is not included, either by the language or the general scope of the act, in services for which an allowance may be made to be paid by the trustees. In Re Harrison Mercantile Co. (D. C.) 95 Fed. 123, in response to a claim for such services, Philips, J., said:

"It is further claimed by these attorneys, as a basis of their compensation, that they induced several bidders to attend the sale of the property of the bankrupt. Presumptively, and naturally enough, interested creditors in the estate would either attend in person, or be represented at such sale, to see that the property be not sacrificed, as they are the especial bene