1830. IN FORCE FROM ITS PASSAGE. AN ACT to furnish certain officers with the Digest of the Statutes: Approved SEC. 1. Be it enacted by the General Assembly of the Commonwealth of Kentucky, That it shall be the duty of the county and circuit courts of the several counties in this Commonwealth, to cause an order to be made upon their respective order books, certifying to the Secretary of State, what officers in their respective courts, have not been furnished with copies of the Digest and Kentucky Reports, to which, by law, they are entitled, and in case particular volumes only have not been furnished, then to say what volumes; and upon the receipt, by the Secretary of State, of a copy such order, it shall be his duty to send to those counties, when he next sends the acts and journals of the Legislature, the copies so required: Provided, however, That nothing herein shall be so construed as to require the Secretary to expend more in procuring any of the said books, than the price which the same originally cost the State. County and circuit courts to certify to secretary of state what officers have not receiv ed the Digest and Kentucky Reports, and the secretary to send the copies required. TITLE 63. DOWER. Writ of ad measurement of dower grant ed to guardian. Widow shall be endowed of one-third part of 1285. Admeasurement of Dower for the guardian and the heir, and the process therein. 1705. AN ACT for the distribution of intestate's estates, declaring widows' rights to their deceased husbands' estates; and for securing orphans' estates.-3 Hening's Statutes at Large, 374. SEC. 8. The widow of any person dying intestate, shall be enhusband's dowed of one full and equal third part of all her deceased huslands, tenements, & other band's lands, tenements and other real estate, (a) in manner as is real estate as directed and prescribed by the laws and constitution of the kingdom by the laws of England. of England. execution of the contract. (a) Whenever the husband has been bene- his vendee, claims and is entitled to a specific ficially seized of land, his wife is entitled to dower. This right cannot be barred by any equity against the husband. As to the wife's right to be endowed of an inchoate estate, not reduced to a legal one during coverture, but existing only in equity, the court gave no opinion. -Winn, &c. v. Elliott's Widow, &c. Har. 482. 2. It is now held, however, that where the husband had an equity in an estate in fee, which would authorize the chancellor to convey the legal title to him, his wife is entitled to dower.Baily & Wife v. Duncan's Rep's. &c. 4 Mon. 262; Graham's Heirs v. Graham, Mon. 562; Stevens, &c. v. Smith, 4 J. J. Mar. 65; Dean's Heirs v. Mitchell's Heirs, 4 J. J. Mar. 451; Hamilton, &c. v. Hughes, 6 J. J. Mar. 582. See also note (b) p. 444, title CONVEYANCES, ante. 3. If a husband holds the legal estate, but has given a bond for the conveyance of it before marriage, his wife is not entitled to dower, provided When the vendee elects and receives damages in lieu of the title, the beneficial interest in the land would be revested in the husband, and then his wife would be entitled to dower.-Dean's Heirs v. Mitchell's Heirs, 4 J. J. Mar. 451. 4. Dower shall be assigned by parcels out of each tract, and not one entire tract allotted for dower in all the estate.-Wood et ux, v. Lee, 5 Mon. 55. 5. On the assignment of dower, the doweress becomes entitled to back rents.-Ib. 57. 6. A deed executed by a husband, on the day of his marriage, conveying his land to another, will not deprive the widow of her dower therein. The law will not cut days in pieces for the purpose of inquiring whether the deed was executed by the husband before or after the ceremony of marriage.-Stewart's Lessee v. Stewart, 3 J. J. Mar. 48. 1796. IN FORCE FROM FIRST DAY OF JANUARY 1797. AN ACT concerning the dower and jointure of widows: Approved Dec. 19, 1796. 1 Litt. 516. SEC. 1. Be it enacted by the General Assembly, That a widow, after the death of her husband, shall tarry in the mansion-house of her husband, and the plantation thereto belonging rent free, until her dower shall be assigned her; (b) and if she be thereof in the mean time deforced, she shall have a vicontiel writ in the nature of a writ de quarentina habenda directed to the sheriff, whereupon such proceedings and speed shall be used as hath or might have been used on the said writ of quarentina. SEC. 2. Whosoever shall deforce widows of their dowers of the lands whereof their husbands died seized, or of such mansion-house or plantation, if the same widows shall after recover by plea, they that be convicted of such wrongful deforcement, shall yield damages to the same widow, that is to say, the value of the whole dower to 7. A woman shall not be endowed, both of the land given in exchange, and of that taken in exchange. Stevens, &c. v. Smith, 4 J. J. Mar. 64. 8. A woman may be endowed where the husband is seized in law, as well as where the seizin is in deed; but the husband cannot be tenant by the courtesy, unless the wife be seized in deed.-1b. 65. 9. Slaves assigned the widow for dower in her first husband's estate, and reduced to possession by her second husband, do not survive to her on his death, but pass to his executor.-Hawkins' Adm'r. v. Craig et ux. 6 Mon. 254; Hykes & Wife v. White's Adm'r. 7 J. J. Mar. 134. 10. When slaves are sold by agreement of the widow, heirs, administrators, &c. the widow should have a decree absolutely for the value of her life estate in one-third part of the money for which they sold. The value is to be ascertained by a jury.-Smiley v. Smiley's Admr's. &c. 1 Dana, 96. 11. The right of dower is not embraced in the statute of limitations: but in chancery this must be acted on "within twenty years at the utmost." Circumstances which would form exceptions to the statute in limitations, will constitute exceptions to this rule.-Ralls v. Hughes and Hedges, 1 Dana, 407. 12. Cases are to be found where courts of equity have decreed an account of the rents and profits of land, of which a widow was dowable, Widow may remain in the mansion house assigned her. until dower is May have an action against those who de force her of her fully. though her right to dower was not established in her lifetime; but in no case has the decree been in favor of the heir of the widow.-The personal representative, if any can, must sue,--Coons, &c. v. Nall's Heirs, 4 Litt. 264. 13. A woman holding land in right of dower, cannot by purchasing a title adverse and paramount to that of the reversioners, and under which she acquired possession, defeat the reversionary right, or prevent a restitution of possession to the reversioners, by alienation of her right to another by deed, for a valuable consideration. Quere: Whether after the purchaser in such case, restores the possession to the reversioners, he can succeed on the title acquired, in a new action?-Kirk v. Nichols' Heirs, 2 J. J. Mar. 470. (b) The widow is entitled to the mansionhouse and the whole plantation free from rent, until her dower is assigned her.-Chaplin, &c. v. Simmons' Heirs, 7 Mon. 338. 2. And this is the case, whether she resides there or not; but this right does not extend to any enlargement of the farm.-White, &c. v. Clarke, 7 Mon. 642. 3. A town lot, including the mansion-house, should go to the widow, as a plantation would in the country, until the assignment of dower. The alienee of the husband cannot recover in ejectment two-thirds of a lot, before the widow's dower is assigned her.-Stewart's Lessee v. Stewart, 3 J. J. Mar. 48. habet. them belonging from the time of the death of their husbands, unto the day that the said widows by judgment have recovered seisin of Unde nihil their dower in a writ of dower, called unde nihil habet: (c) the writ shall not abate by the exception of the tenants, because the demandant hath recovered her dower of another man by her writ purchased, unless he can show that the dower so received was in satisfaction of her right of dower in the lands whereof she demands dower. Where judgment was ob SEC. 3. In case where the husband being impleaded for land by tained against default, the woman, after his death, demanding her dower shall be (c) Widow's claim to dower depends on whether the seizin of the husband was beneficial, or only in trust; and not on the time the title remained in him.-Tevis v. Steele, 4 Mon. 341. 2 A widow was not entitled to damages for the detention of dower by the common law; and by the above statute, taken from the statute of Merton, damages are not now recoverable either in equity or at law for the detention of dower in lands aliened by the husband in his lifetime.— Kendall v. Honey, 5 Mon. 283. 3 If the alienee of the husband acquired his right to, and possession of land from the deed of the husband, he cannot, when sued by the widow for dower, deny the seizin of the husband.-Dashiel v. Collier, 4 J. J. Mar. 602. 4. In England, the judgment for dower and the judgment for damages, were deemed distinct and independent. At common law, the suit for dower was considered as ended by the judgment for seizin, and the damages were added by the statute of Merton only when the husband died seized. Hence, though personal notice was not necessary in order to obtain a judgment for dower, an inquisition of damages was illegal, unless the tenant had personal notice of the time of executing the writ of inquiry.-Waters v. Gooch, 6 J. J. Mar. 588. 5. The statutes of 1810 and 1811, pages 333, and 339, ante, regulating civil proceedings in all suits at common law, apply to writs of dower, not only as regards the service and return of process, but also as to the pleadings and trial.-In this state, a count on writs of dower is necessary, whether the tenant appear or not.-Waters v. Gooch, 6J.J. Mar. 588. 6. Writs of dower under our acts stand for trial, like other common law suits, at the first term after personal service of the writ.-Waters v. Gooch, 6 J. J. Mar. 589. 7 Form of judgment for dower, together with that for damages when the husband has died seized, should be the same in this state as the form of such judgment prescribed in 2d Saunders' Rep. 331-2.-Waters v. Gooch, 6 J. J. Mar. 591. 8. In writs of dower there should be no inquiry of damages by default, unless the count allege, in effect, that the husband died seized. And to entitle a demandant to dower, the count must aver, in substance, that she was the wife, and that the husband was, during the coverture, seized of a freehold interest, at least.—Waters v. Gooch, 6 J.J. Mar. 589. 9. In a proceeding by writ of dower, no other process for warning the tenant is necessary, than a writ in nature of the præcipe, the form of which is given, in outline, by an act of 1796, p. 103, ante.-Waters v. Gooch, 6 J. J. Mar. 591. 10. If the husband has alienated the land in his lifetime, seizin should be given to the wife of a third in value, according to the condition of the land at the date of the alienation.-Ib. 11. A plea that the husband did not die seized of the land, is immaterial, and no bar to the ac tion.-Taylor v. Brodrick, 1 Dana, 347. 12. Several parcels of land in possession of the same tenant, and in the same town, may be included in one suit at law for dower.-Ibid. 13. If the defendant was a purchaser of the husband, and has added to the value of the land by improvements, those facts may be pleaded, and will be available to curtail the allotment of dower.-Ibid. 14. A judgment for dower, according to the value of the land at the time when it was conveyed by the husband, is erroneous. It should be for the one third part as it is, unless the alienee have made valuable improvements, and then she must be endowed of so much only as will be equal to the one third part independent of the improvements; and if there be no improvements, then the widow should have judgment for one third of each parcel,-lbid, 348. heard, and if it be alleged against her that her husband lost the land whereof the dower is demanded by judgment, whereby she ought not to have dower, and then it be inquired by what judgments; and if it be found that it was by fault whereupon the tenant must answer, then it behoveth the tenant to answer further, and to show that he had right, and hath in the aforesaid lands according to the form of the writ, that the tenant before purchased against the husband; and if he can show that the husband of such wife had no right in the lands, nor any other but he that holdeth them, the tenant shall go quit, and the wife shall recover nothing of her dower, which thing if he cannot show, the wife shall recover her dower. Where a wi dow is endowed by collusion the heir may contest, and how. SEC. 4. And whereas sometime it chanceth that a woman not having a right to demand dower, the heir being within age, doth purchase a writ of dower against a guardian, and the guardian endoweth the woman by favor, or maketh a default, or by collusion defendeth the plea so faintly, whereby the woman is awarded her dower in prejudice of the heir, it is provided, that the heir, when he cometh to full age, shall have an action to demand the seisin of his ancestor against such a woman, like as he should have against any other deforcer; yet so that the woman shall have her exception saved against the demandant, to show that she had right to her dower, which if she can show she shall go quit, and retain her dower; and if not, the heir shall recover his demand. In like manner, the woman shall be aided if the heir or any other do implead her for her dower. If she lose her dower by a default, in which case the default shall not be so prejudicial to her, but that she shall recover her dower if she hath right thereto, and she shall have this writ, "Command A. that justly, &c. he render to B. who was the wife of F. so much land, with the appurtenances in C. which she claims to be her reasonable dower (or of her reasonable dower) and that the aforesaid A. deforceth her, &c." and to this writ the tenant shall have his exception to show that she had no right to be endowed, thereto. which, if he can verify, he shall go quit, if not, the woman shall recover the land, whereof she was endowed before. Also, widows may bequeath the crop of their ground as well of their dower as of their lands and tenements. The default of widows not to them of bar dower. The form of a writ of dower. What a tenant may plead Widows may bequeath the crop growing on dower lands. Wife living with adulterer to be barred of SEC. 5. But if a wife willingly leave her husband, and go away and continue with her adulterer, she shall be barred forever of her action to demand her dower that she ought to have of her husband's dower. lands, if she be convict thereupon; except that her husband, willingly and without coercion, reconcile her and suffer her to dwell with him; in which case she shall be restored to her action. SEC. 6. Also, if any estate be conveyed by deed or will, either Jointure a bar expressly or by averment for the jointure of the wife in lieu of her to dower. dower, to take effect in her own possession immediately on the death of her husband, and to continue during her life at least determinable |