Magruder v. Magruder (141 F.2d 537, 1944)

MILLER, Associate Justice.

Appellants are the seven children of William M. Magruder, deceased. Under his will, they became owners in fee, as tenants in common, of certain real estate in Washington, D. C., being Lot 61, Square 4063, improved by a brick dwelling, numbered 1238 Neale Street, N. E.; subject to the dower right of appellee, their mother. On this appeal the facts are undisputed and the parties have submitted the following issue as being determinative of the case: “Did the Court below have the power to decree partition between the owners, as tenants in common, of the indivisible piece of real estate involved in this proceeding, and a sale thereof, free from the dower interest of the appellee, and a division of the proceeds thereof among the parties hereto according to their respective rights, without the consent of the appellee thereto?” This question the trial court answered in the negative. However, the court granted appellee’s motion for judgment on .the pleadings and assigned dower, as she requested, for one-third of the net rents, issues and profits arising out of the property.

The answer to the stipulated issue depends upon the proper interpretation of Section 1305, Title 16, of the District of Columbia Code, which reads as follows: "Whenever a decree is rendered for the sale of land, in the whole of which a widow is entitled to dower, if she will not consent to