those which have been mentioned, and except Louisiana, where the rights of married women are regulated by the civil law, and except also, Georgia, where tenancy in dower is said to be abolished, the strict English rule on the subject of trust estates is presumed to prevail. (d) 2 3 Though the wife be dowable only of an equity of redemption, when the mortgage was given prior to her marriage, or when she joined with her husband in the mortgage, she is, after her husband's death, if she claims her dower, bound to contribute ratably towards the redemption of the mortgage. If the heir redeems, she contributes by paying, during life, to the heir, one third of the interest on the amount of the mortgage debt paid by him, or else a gross sum, amounting to the value of such an annuity. (e) 4 In England, the widow entitled to dower in an equity of redemption in a mortgage for years, has also, upon the same principles * 47 applicable to that analogous case, the right to redeem, * by paying her proportion of the mortgage debt, and to hold over until she is reimbursed. (a) As to the interest of a widow of a mortgagee, the case, and the principles applying to it, are different. A mortgage before foreclosure is regarded by the courts in this country, for most purposes, as a chattel interest; (b) and it is doubted whether the wife of the mortgagee, who dies before foreclosure or entry on the part of her husband, though after the technical forfeiture of the mortgage at law by non-payment at the day, be now, even at law, provided she would be entitled if the estate was a legal one. Laws of Alabama, 247 sec. 9. So, in Mississippi. R. C. of Mississippi, 1824. (d) In the case of Robinson v. Codman, 1 Sumner, 129, Judge Story held, at the Circuit Court in Maine, that an estate held by the husband in trust, was not liable to the dower of his wife. See also Cooper v. Whitney, 3 Hill, 101, S. P. (e) Swaine v. Perine, 5 Johns. Ch. 482. Gibson v. Crehore, 5 Pick. 146. Bell v. Mayor of New York, 10 Paige, 49. House v. House, Id. 159, vide infra, 75. (a) Palmes v. Danby, Prec. in Ch. 137. (b) Waters v. Stewart, 1 Caines Cases, 47. Jackson v. Willard, 4 Johns. 41. Huntington v. Smith, 4 Conn. 235. Eaton v. Whiting, 3 Pick. 484. Lenox v 2 In Georgia the wife has dower in lands of which the husband dies seised. Cobb's Digest, p. 171. A widow cannot be endowed of a trust estate in Arkansas. Notrebe, 1 Hemp. 251. 8 Denton v. Nanny, 8 Barb. (N. Y.) 618. 4 If the administrator redeems with the to her dower without contribution at his cost. Rossiter v. Cossit, 15 N. Hamp. 38. entitled to dower in the mortgaged estate. The better opinion I apprehend to be, that she would not be entitled as against the mortgagor. The New York Revised Statutes (c) have settled this question in New York, by declaring that a widow shall not be endowed of lands conveyed to her husband by way of mortgage, unless he acquired an absolute estate therein during the marriage. (d) * In what way dower will be defeated. * 48 Dower will be defeated upon the restoration of the seisin under the prior title in the case of defeasible estates, as in the case of reentry for a condition broken, which abolishes the intermediate. seisin. (a) A recovery by actual title against the husband, also defeats the wife's dower; but if he gave up the land by default, and collusively, the statute of Westm. 2, c. 4, preserved the wife's dower, unless the tenant could show affirmatively a good seisin out of the husband and in himself. This statute, according to Perkins, was an affirmance of the common law. (b) The principle is, that the wife shall have dower of lands of which her husband was (c) Vol. i. 741, sec. 7. (d) By the absolute estate, in the revised code, more was intended than the estate which is technically absolute at law on default of payment at the day. I presume the word absolute is here to be taken in the strongest sense. In Runyon v. Mersereau, 11 Johns. 534, it was held, that the freehold was in the mortgagor before foreclosure or entry. If the mortgagee enters without foreclosure, the freehold may then be shifted in contemplation of law; but still the mortgagee has not an absolute estate, so long as the equity of redemption hangs over that estate and qualifies it. According to the English law, the wife of the mortgagee would be entitled to her dower, in such a case, from the heir of the mortgagee, who died in possession, though the estate in dower would be defeasible, like her husband's estate, by redemption, on the part of the mortgagor. The words of the new revised statutes were probably intended to stand for an estate with the equity of redemption finally fore-closed and absolutely barred. Upon that construction the restriction has been carried beyond the English rule, and, I apprehend, beyond the necessity or reason of the case. (a) Perkins, secs. 311, 312, 317. (b) Perkins, sec. 376. It was, however, reenacted in totidem verbis, in New York. 1787. Laws of New York, sess. 10, c. 4, sec. 4. And it is in substance adopted and enlarged by the New York Revised Statutes, vol. i. 742, sec. 16, which declare, that no judgment or decree confessed by or recovered against the husband; and no laches, default, covin, or crime of the husband, shall prejudice the right or his wife to her dower or jointure, or preclude her from the recovery thereof, if otherwise entitled thereto." See also to S. P. Statute of Ohio, 1824. Chase's Statutes, vol. ii. 1315. of right seised of an estate of inheritance, and not otherwise. If, therefore, a disseisor die seised, and his wife be endowed, or bring her writ of dower, she will be defeated of her dower on recovery of the lands, or upon entry by the disseisee. (c)2 And the sound principle of making the title to dower rest upon the husband's right, is carried so far as to allow the wife to falsify even a recovery against her husband, upon trial, provided the recovery was upon some other point than the abstract question of right. (d) But under the complicated modifications of seisin, contemplated in the ancient law, and which are collected and digested by Perkins, in his excellent repository of the black-letter learning of the Year Books, the seisin of the husband was sometimes defeated s as to bar dower, though the right remained in him; and 49 in other cases the dower would be preserved, though the seisin was defeated, by reason of some prior distinct seisin which had attached in the husband. (a)1 If the husband be seised during coverture of an estate subject to dower, the title will not be defeated by the determination of the estate by its natural limitation; for dower is an incident annexed to the limitation itself, so as to form an incidental part of the estate limited. It is a subsisting interest implied in the limitation of the estate. Thus, if the tenant in fee dies without heirs, by which means the land escheats; or if the tenant in tail dies without heirs, whereby the inheritance reverts to the donor; 2 or if the grantee of a rent in fee dies without heirs; yet, in all these cases, the widow's dower is preserved. (b) By the rules of the common law, dower will determine, or be defeated, with the determination of the estate, or avoidance of the title of the husband by entry as for a condition broken, or by reason of a defective (c) Litt. sec. 393. Co. Lit. 240, b. Barkshire v. Vanlore, Winch, 77. (d) Perkins, sec. 381. (a) Perkins, secs. 379, 380. Park on Dower, 148. (b) Bro. tit. Tenures, pl. 33, tit. Dower, pl. 86. Paine's case, 8 Co. 34. Jenk. Cent. 1, case 6, p. 5. 2 The result is the same if one holding adversely conveys to the rightful owner before the end of the period of limitation. Poor v. Horton, 15 Barb. (N.Y.) 485. 1 So dower will be defeated by a sale of real estate after the marriage, under an execu tion, upon a judgment recovered against the husband before the marriage. Queen Anne's County v. Pratt, 11 Md. 5. 2 Smith s Appeal, 23 Penn. St. 9. title. So, dower will be defeated by the operation of collateral limitations, as in the case of an estate to a man and his heirs so long as a tree shall stand; or in the case of a grant of land or rent to A. and his heirs till the building of St. Paul's church is finished, and the contingency happens. (c) Whether dower will be defeated by a conditional limitation, created by way of shifting use or executory devise, is hitherto an unsettled and vexed question, largely discussed in the books. (d) The estate of the husband is, in a more emphatical degree, overreached and defeated 告 by the taking effect of the limitation over, on these condi- *50 tional limitations, than in the case of collateral limitations; and the ablest writers on property law are evidently against the authority of the case of Buckworth v. Thirkell, and against the right of the dowress when the fee of the husband is determined by executory devise or shifting use. (a) As a general principle, it may be observed, that the wife's dower is liable to be defeated by every subsisting claim or incumbrance in law or equity, existing before the inception of the title, and which would have defeated the husband's seisin. An agreement by the husband to convey before dower attaches, will, if enforced in equity, extinguish the claim to dower.2 In equity, lands agreed to be turned into money, or money into lands, are considered as that species of property into which they were agreed to be con (c) Jenk. Cent. supra. Preston on Abstracts of Title, vol. iii. 373. Butler's note, 170, to Co. Lit. 241, a. (d) The cases of Sammes v. Payne, 1 Leon, 167. Gouldsb. 81. Flavill v. Ven⚫ trice, Viner's Abr. vol. ix. 217, F. pl. 1. Sumner v. Partridge, 2 Atk. 47, and Buckworth v. Thirkell, 3 Bos. & Pull. 652, n, are ably reviewed by Mr. Park; and the latter case, though decided by the K. B. in the time of Lord Mansfield, after two successive arguments, is strongly condemned, as being repugnant to settle distinctions on this abstruse branch of law. (a) Butler's note, 170, to Co. Lit. 241, a. Sugden on Powers, 333. Preston on Abstracts of Title, vol. iii. 372. Park on Dower, 168-186. 8 Beardslee v. Beardslee, 5 Barb. (N. Y.) 324. 1 Brown v. Williams, 31 Maine, 403. Clough v. Eliott, 3 Foster, 182. Harris, 12 B. Mon. 261. Stribling v. Ross, 16 Ill. 122. M'Clure v. 2 Rawlings v. Adams, 7 Md. 26. Firestone v. Firestone, 2 Ohio St. 415. Bowie v. Berry, 3 Md. Ch. Dec. 359. And so of a conveyance before marriage, although in fraud of creditors. Whithed v. Mallony, 4 Cush. 138. But a conveyance by the husband, just before marriage, to his sons, without consideration, and kept secret until after the marriage was held not to bar dower. Cranson v. Cranson, 4 Mich. 230. verted; and the right of dower is regulated in equity by the nature of the property in the equity view of it. (b) III. How dower may be barred. Dower is a title inchoate, and not consummate till the death of the husband; but it is an interest which attaches on the land as soon as there is the concurrence of marriage and seisin.3 It may be extinguished in various ways, though the husband alone, according to the common law, cannot defeat it by any act in the nature of alienation or charge, without the assent of his wife, given and proved according to law; and this is now the *51 declared statute law of New York. (c) If the husband and wife levy a fine, or suffer a common recovery, the wife is barred of her dower. (a) This was until lately the only regular way, in the English law, of barring dower, after it has duly attached; but now, by the statute of 3 and 4 Wm. IV. c. 105, power is given to the husband in various ways, in his discretion, to bar his wife's right of dower, as by conveyance in his lifetime, by devise, or by his declaration by will that his lands shall be exempt from her dower. (b) A devise in fee, by will, to a wife, with a power of disposition of the estate, would not enable her to convey, without a fine, for the power would be void, as being inconsistent with the fee. (c) But other ingenious devices have been resorted to, in order to avoid the troublesome lien of dower. If an estate be conveyed to such uses as the purchaser by deed or will should appoint, and in default of appointment to the pur (b) Greene v. Greene, 1 Ham. Ohio, 249. In that case the subject is ably discussed; and the whole volume is evidence of a very correct and enlightened administration of justice, in equity as well as in law. Coster v. Clarke, 3 Edw. Ch. 437. (c) New York Revised Statutes, vol. i. 742, sec. 16. (a) Lampet's case, 10 Co. 49, b. Eare v. Snow, Plowd. 504. (b) See ante, p. 44, note. (c) Goodill v. Brigham, 1 Bos. & Pull, 192. 3 This inchoate right, being a mere contingency and not a part of the marriage contract, 18 wholly divested when land is taken by a municipal corporation, upon payment of the value to the owner, according to law. Moore v. Mayor of New York, 4 Seld. 110. Melizst's Appeal, 17 Penn. St. 449. Weaver v. Gregg, 6 Ohio St. 547. 4 As to deeds fraudulently made to defeat dower, Rowland v. Rowlard, 2 Sneed, 543 Also see Jenny v. Jenny, 24 Vermont, 324. |