York and Illinois, if she resides out of the state, the simple execution of the deed by her will be sufficient to bar her dower, as to the lands in the state so conveyed, equally as if she were a feme sole. (a)1

*IV. The manner of assigning dower.

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To give greater facility to the attainment of the right of dower, (and which Lord Coke informs us was one of the three principal favorites of the common law,) (a) it was provided by Magna Charta, (b) that the widow should give nothing for her dower, and that she should tarry in the chief house of her husband for forty days, (and which are called the widow's quarantine,) after the death of her husband, within which time her dower should be assigned her; and that, in the mean time, she should have reasonable estovers, or maintenance, out of the estate. The provision that the widow should pay nothing for dower, was made with the generous intention of taking away the uncourtly and oppressive claim of the feudal lord, for a fine, upon allowing the widow to bo endowed. This declaration of Magna Charta is, probably, the law in all the United States. In New York the provision is reenacted, and with the addition that she shall not be liable for any rent during the forty days, though the allowance of maintenance neces sarily implied that she was to live free of rent. (c) The widow cannot enter for her dower until it be assigned her, nor can she

(a) New York Revised Statutes, vol. i. 785, sec. 11. Revised Laws of Illinois, 1833. In Georgia a conveyance by the husband alone during coverture, bars a wife's right of dower, except as lands whereof he became possessed by his marriage with her. Hotchkiss's Code, &c. 429. So a conveyance of land by sale or execution in the lifetime of the execution, bars the right of dower. Id.

(a) Co. Litt. 124, b.

(6) C. 7.

It is also the law in Massa-
In the first Act of the legis-

(c) New York Revised Statutes, vol. i. 742, sec. 17. chusetts. Revised Statutes of 1836, part 2, tit. 1, c. 60. lature of the province of New York, under the Duke of York, in 1683, it was, among other things, declared that the widow should have her dower, consisting of one third part of all the lands of her husband during coverture, and that she might tarry in the chief house of her husband forty days after his death, within which time her dower was to be assigned.

1 But an infant feme covert cannot bind herself by deed so as to bar her right of dower Cunningham v. Knight, 1 Barb. (N. Y.) 399.

alien it so as to enable the grantee to sue for it in his own name. It is a mere chose or right in action, and cannot be sold on execution at law, though in New York it may be reached by process in chancery for the benefit of creditors. (d)1 She has no estate in the lands until assignment; and after the expiration of her quarantine, the heir may put her out of possession, and drive her to her suit for her dower. She has no right to tarry in her husband's house beyond the forty days; and it is not until her dower * 62 has been duly assigned, that the widow acquires a vested estate for life, which will enable her to sustain her ejectment. (a) It was decided in New Jersey, that though the widow could not enter upon the land until dower was assigned, yet, being in possession, she could not be ousted by the owner of the fee in ejectment, unless her dower was assigned her. (b) This decision is against the decided weight of English and American authority, but it was correctly decided, according to the very reasonable statutelaw of New Jersey, which gives to the widow the right to hold and enjoy the mansion-house, and the messuage and plantation thereto belonging, free of rent, until dower be assigned; and she has, therefore, a freehold for life, unless sooner defeated by the act of

(d) New York Revised Statutes, vol. ii. 214, sec. 39.

(a) Litt. sec. 43. Co. Litt. 32, b. 37, a. Doe v. Nutt, 2 Carr. & Pa. 430. Jackson v. O'Donaghy, 7 Johns. 247. Jackson v. Aspell, 20 Ibid. 411. Jackson v. Vanderleyden, 17 Ibid. 167. Chapman v. Armistead, 4 Munf. 382. Moore v. Gilliam, 5 Ibid. 346. Johnson v. Morse, 2 N. Hamp. 49. Sheafe v. O'Neil, 9 Mass. 13. Siglar v. Van Riper, 10 Wendell, 414. McCully v. Smith, 2 Bailey (S. C.) 103.

(b) Den v. Dodd, 1 Halst. 367.

1 In New York, until assignment, the wife's interest is a chose in action or claim, which is extinguished by a sale under a surrogate's order. Lawrence v. Miller, 2 Comst. 245. Stewart v. McMartin, 5 Barb. (N. Y.) 438. She has no estate in the land before assignment, and cannot assign or convey her right, though she may release it. Green v. Putnam, 1 Barb. (N. Y.) 500. 3 Id. 319. See also Hoots v. Graham, 23 Ill. 81. And the claimant of a right of dower need not be a party to an action for the partition of lands in which she claims it. Hoxsie v. Ellis, 4 R. I. 123. The release is to a party in possession, or in privity of estate. Johnson v. Shields, 32 Maine, 424. See also Kain v. Fisher, 2 Selden, 597; Summers v. Babb, 13 Ill. 483; Wallace v. Hall, 19 Ala. 367. Where a widow released her dower for a consideration, and afterwards procured an assignment of dower, under which she entered and leased, it was held, that the assignment simply designated what she had sold. Matlock v. Lec, 9 Ind. 208. But even before assignment she can make a contract concerning her dower, which equity will enforce. Potter v. Everitt, 7 Ired. Eq. 152. The wife has no vested right of any kind to dower before the decease of her husband, and until then her right may be modified or abolished by the legislature. Barber v. Barbour, 46 Maine, 9.

the heir. (e) There is the same reasonable statute provision in Kentucky, Indiana, Illinois, Alabama, Mississippi, and Virginia ;1 the rule in Connecticut and Missouri is the same, and, upon the death of her husband, the widow is by law deemed in possession as a tenant in common with the heirs, to the extent of her right of dower; and her right of entry does not depend upon the assignment of dower, which is a mere severance of the common estate. (d) Though in point of tenure she holds of the heir or reversioner, yet the widow claims paramount to the heir. Her estate is a continuation of that of her husband, and upon assignment she is in by relation from her husband's death. (e) 3

In North Carolina, the law provides for the widow's support for one year, and it is suggested that the time of her quarantine may be thereby enlarged. But though she be an occupant, the legal title before the assignment of dower is exclusively in the heirs, and they are occupants also. (f)

*The assignment of dower may be made in pais by parol, *63 by the party who hath the freehold ; but if the dower be not

.

(c) 3 Halst. 129.

(d) Stedman v. Fortune, 5 Conn. 462. Griffith's Reg. tit. Kentucky. Taylor v. M'Crackin, 2 Blackf. (Ind.) 261. Revised Laws of Illinois, edit. 1833, and of Indiana, 1838, p. 239. Alabama Dig. 258. 1 Revised Code of Virginia, c. 107, secs. 1, 2, p. 403. Stokes v. McAllister, 2 Missou. 163. In Tennessee, by statute, the widow is entitled to a support for herself and her family, for one year, out of the assets. (e) Norwood v. Marrow, 4 Dev. & Bat. (N. C.) 448.

(f) Branson v. Yancy, 1 Dev. Eq. 77. If it be the case, that in North Carolina the quarantine is enlarged for a year, it is a revival of the ancient law of England; and this enlarged quarantine, Lord Coke says, was certainly the law of England before the conquest. Co. Litt. 32, b. In Ohio, the widow is to remain in the mansion-house of her husband, free of charge, for one year after his death, if her dower be not sooner assigned her. Statutes of Ohio, 1824.

1 For similar provisions, see also Rhode Island Revised Statutes, 1857, ch. 202, § 6; Hartley's Texas Digest, 1850, art. 867; Arkansas Digest, ch. 59, §§ 17, 18. As to the widow's right in this case to the rents before assignment, see Burk v. Osborne, 9 B. Mon. 579; Inge v. Murphy, 14 Ala. 289. The widow's right of occupancy is not forfeited by a subsequent marriage, and the owner of the fee must procure the assignment. Shelton v. Carroll, 16 Ala. 148. See also" McReynolds v. Counts, 9 Gratt. 242; Pharis v. Leachman, 20 Ala. 662. She can defend in ejectment against her husband's alienee. Cook v. Webb, 18 Ala. 810.

2 And see Gorham v. Daniels, 23 Vermont, 600.

8 Lawrence v. Brown, 1 Selden, 394. Fowler v. Griffin, 3 Sandf. (N. Y.) 385. And her freehold is subject to the same charges and services as the principal estate. Whyte v. Mayor, &c. of Nashville, 2 Swan (Tenn.) 364.

1 It may be made by the guardian of a minor heir. Young v. Tarbell, 37 Maine, 509. And

assigned within the forty days, by the heir or devisee, or other persons seised of the lands subject to dower, the wide w has her action at law by writ of dower, unde nihil habet, or by writ of right of dower against the tenant of the freehold.2 The former is to be preferred, because the widow, in that case, recovers damages for non-assignment of her dower, which she would not in a writ of right; and the damages by the statute of Merton were one third of the annual profits of the estate from the death of the husband. The writ lies, in every case, excepting only where the widow has received part of her dower of the same person who is sued, and out of lands in the same town. (a) The writ of right of dower is of rare occurrence, if not entirely unknown in this country; and the learned author of the Treatise on the Pleadings and Practice in Real Actions, says, (b) that he had never known any such action in Massachusetts. On recovery at law, the sheriff, under the writ of seisin, delivers to the demandant possession of her dower by metes and bounds, if the subjects be properly divisible, and the lands be held in severalty. (c) If the dower arises from rent, or other incorporeal hereditament, as commons or piscary, of which the husband was seised in fee, the third part of the profits is appropriated to the widow. (d) If the property be not divisible, as a mill,

(a) Co. Litt. 32, b. 2 Inst. 262.

(b) P. 307. The Massachusetts Revised Statutes of 1836, authorize the judge of probate of the county where the lands lie, to assign dower, if the husband dies seised, and the right be not disputed by the heir, by his warrant to three commissioners; and if not so assigned, nor set out by the heir or other tenant of the freehold, she recovers the same by writ of dower in the courts of common law.

(c) Litt. sec. 36. In North Carolina, Alabama, and Illinois, the husband's mansionhouse is to be included in the one third, unless manifestly unjust to the children, to include the whole mansion-house and offices, and she is then only to have a reasonable portion thereof. Her dower is estimated by one third in value, and not merely in quantity of acres. McDaniel v. McDaniel, 3 Iredell (N. C.), 61. Griffith's Register. Revised Laws of Illinois, 1833. Stiner v. Cawthorn, 4 Dev. & Batt. 501.

(d) Co. Litt. 144, b. Popham, 87. Chase's Statutes of Ohio, vol. ii. 1316, sec. 14. Dunseth v. Bank of the United States, 6 Ohio, 76.

a parol assignment by a guardian is good. Curtis v. Hobart, 41 Maine, 230. Or the infant himself, with the right to a writ of admeasurement, if the assignment is excessive. McCormick v. Taylor, 2 Carter (Ind.) 336. An assignment may be by parol. See Boyers v Newbanks, 2 Carter (Ind.) 388; Meserve v. Meserve, 19 N. Hamp. 240.

2 Ellicott v. Mosier, 3 Selden, 201. Jones v. Patterson, 12 Penn. St. 149. Kennedy v. M'Aliley, 9 Rich. Law, 395.

8 There can be no decree for a specific sum in lieu of dower with out 'he assent of all con

she is dowable in a special manner, and has either one third of the toll, or the entire mill for every third month. (e) The assignment of a dower of a mine should be by metes and bounds, if practicable; and if not, then by a proportion of the profits, or separate

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alternate enjoyment of the whole for short proportionate periods. (a) The widow may also consent to take her dower of the undivided third part of the estate, without having it set off by metes and bounds. (b) Of lands held in common, the wife has a third part of the share of her husband assigned to her, to be held by her in common with the other tenants. (c)1 A case may occur in which there may be two or more widows to be endowed out of the same messuage. Lord Coke alludes to such a case, (d) and the point was proved and learnedly illustrated in Geer v. Hamblin. (e) If A. be seised, and has a wife, and sells to B. who has a wife, and the husbands then die, leaving their wives surviving, the wife of B. will be dowable of one third of two thirds in the first instance, and of the one third of the remaining one third on the death of the widow of A., who, having the elder title in dower, is to be first sat

(e) Co. Litt. 32, a. Perkins, secs. 342, 415. Park on Dower, 112, 252. In the case of a mill, or of other tenement which cannot be divided without damage, the dower, by the Massachusetts Revised Statutes of 1836, is to be assigned out of the rents and profits. The case of Stevens v. Stevens, 3 Dana (Ken.), 373, says, that where the husband died seised of a ferry, the widow was to be endowed of one third of the profits, or to have the use of it one third of the time alternately. The Act of New York, of April 28th, 1840, ch. 177, provides for the better security of the inchoate, contingent or vested right of dower in lands divided or sold under judgment or decree in partition.

(a) Stoughton v. Leigh, 1 Taunt. 402.

(b) 5 Bos. & Pull. 33. In Woods v. Clute, V. Ch. in 2 N. Y. Legal Observer, 407, it was declared, that a widow having a right of dower in land, is not a tenant in common with the owner in fee, so as to be made a party to a suit in partition.

(c) Litt. sec. 44. Co. Litt. 32, b.

(d) Co. Litt. 31, a.

(e) Decided in the Supreme Court of New Hampshire, in 1808. 1 Greenl. 54, note.

cerned. Blair v. Thompson, 11 Gratt. 441. Commissioners cannot assign in fee a portion of the lands equal in value to dower in the whole. Wilhelm v. Wilhelm, 4 Md. Ch. Dec. 330. An assignment giving the widow the houses and all the improved lands of the estate is good against a purchaser from the executor. Gibson v. Marshali, 6 Rich. Eq. 210. A void assignment may become obligatory upon ratification by the parties. Fowler v. Griffin, 6 Candf. (N. Y.) 385.

1 Her dower is not confined to the share set off to her husband if, for a valuable consideration, an unequal partition has been made. Mosher v. Mosher, 32 Maine, 412. But see Lloyd Conover, 1 Dutch. (N. J.) 47.