S^3 Cornell University Law Library from THE BENNO LOEWY LIBRARY RECEIVED BY CORNELL UNIVERSITY UNDER THE WILL OF MR. BENNO LOEWY KF 629.S43 rne " UnlVer " tyL,brary v.1 * )f f Jl'se on the law of dower. 3 1924 018 800 619 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31 92401 880061 9 TREATISE LAW OF DOWER BY CHARLES H. SCRIBNER. IN TWO VOLUMES, VOL. I. PHILADELPHIA: T. & J. W. JOHNSON & CO., No. 535 Chestnut Street. 1867. 13 i-m? Entered, according to Act of Congress, in the year 1864, by CHARLES H. SCRIBNER, In the Clerk's Office of the District Court of the Northern District of Ohio. TO THE EMORY OF MY FATHER % »rk IS DEDICATED. PREFACE. In" the volume now submitted to the public, I have endeavored to collect, and arrange in a convenient form, the various rules and principles of the law establishing and regulating the Right of Dower. This subject occupies a prominent and important place in the American Law of Real Property. The right of dower was established in England more than seven hundred years ago. For centuries it was regarded there as a favorite of the law. It is not strange, therefore, especially when we consider the humane purpose it was intended to subserve, that the custom was transplanted here by the colonists, nor that we should find in the early legislation of the country evidence of an intention on their part to make it one of the permanent institutions of the land. And it has become so. With two or three exceptions, the statutes of all the United States contain provisions securing to the widow her right of dower. In view of the general importance of the subject, and of the fact that it has necessarily given rise to many interest- ing legal questions, and numerous judicial decisions, in the several States, it is a matter of some surprise that, among all the legal publications issued from the press, no element- ary work has heretofore appeared, professing to treat, in an extended form, upon the American Law of Dower. The English treatise of Mr. Park, republished in this country nearly thirty years since, is the only work extant which (v) PREFACE. Vll The task thus imposed is exceedingly laborious, and, not unfrequently, unsatisfactory in its results. Having on several occasions labored under the difficul- ties, and experienced the inconveniences above suggested, it occurred to me that a compilation of the decisions of the American courts upon the law of dower might be of service to the profession. But when I set about the collection of the materials which have been wrought into the present volume, it was with no view to the preparation of an inde- pendent work. My purpose was to incorporate the Amer- ican decisions, in the form of notes, with the standard Eng- lish publication above referred to. It soon became apparent, however, that this plan was, in a measure, impracticable, and would but imperfectly accomplish the object had in view. It was abandoned, therefore; and, fully conscious of my inability properly to perform the task, and with many misgivings as to the result, I nevertheless ventured to enter upon the labor of preparing for the press a new work, on the Law of Dower. At the outset of this undertaking it was feared that dis- similar statutory regulations in the several States might render it exceedingly difficult to embody, in a systematic and acceptable form, the American law upon this subject. But upon a careful analysis and comparison of the different statutes, it was ascertained that the difficulty was not so formidable as at first apprehended. It was found that, as a general rule, the various changes introduced — especially those relating to and regulating the Right of Dower — were not peculiar to any one State, but were common to several States; and that the conflicting laws, and decisions made under them, might be so classified and arranged as to pre- sent no serious obstacle to a consecutive and intelligible treatment of the subject. In the plan adopted it has been thought expedient to ex- hibit, in convenient divisions, and under appropriate heads, the rules of the common law pertaining to the subject- Vlll PREFACE. matter of the work; and in proper order and connection, to point out in what particulars these rules have been changed by statute, or judicial decisions, in the different States. In many respects the common law is entirely un- changed, and in those particulars in which modifications have been introduced, especially by statute, we can not fully comprehend the force and object of the enactment making the change, without a clear conception of the rule as it stood before any attempt at its modification. It seemed advisable, therefore, to present fully the rules of the common law relating to dower, and the principles upon which they are founded. In doing this, reference has not unfrequently been made to principles and decisions con- tained in the ancient books of the law. It is true that much of the matter in these old volumes is now regarded as antiquated and obsolete, and it may be conceded that a portion of it is inapplicable to this country. But it should not be forgotten that these repositories of ancient legal lore are the fountains whence is drawn a large proportion of the law of the present day. Cases may differ materially in their circumstances, while the principles which gov- ern them remain the same. Ancient rules and decisions may not always be precisely applicable to cases arising in modern practice, yet they will generally aid us in arriving at correct conclusions, and not unfrequently furnish the principle by which a given question is to be determined. Hence, while some of the authorities referred to in the en- suing pages, and the principles established by them, may appear to have no special application to the United States, it is believed they will be found not entirely without value to the American lawyer. I can not conclude these observations without referring, in terms of grateful acknowledgment, to the generous aid received, on more than one occasion, from those friends whose encouraging counsel in the enterprise in which I have embarked has done much to stimulate and sustain me PREFACE. IX in its prosecution. I can only hope it may hereafter appear that these evidences of friendly regard and kindly interest were not unworthily bestowed. In a work in which it is attempted to embody the mate- rial provisions of the legislation of thirty-four different States on the subject of dower, and to collate the various judicial decisions relating to the same subject, it would be strange if errors did not exist. But having labored faith- fully to make it accurate and reliable, I venture the hope that the volume now submitted, notwithstanding its im- perfections, will be received with that generous indulgence which is so eminently characteristic of the profession. CHARLES H. SCRIBNER. Mount Vernon, Ohio, January, 1864. CONTENTS. CHAPTER I. PAGE Of the Origin and Nature op Dower .... 1-22 § 1 . Introductory. 2. Supposed antiquity of dower. 3. Dower not known to the ancient Britona. 4. Dos of the civil law. 5. Marriage custom of the ancient Germans. 6. Similar custom of other northern nations. 7-11. Probable origin of dower in England. 12, 13. Provision for dower in the charter of Henry I. 14, 15. In Magna Carta of King John. 16. In the first charter of Henry III. 17, 18. In the second charter of Henry III. 19. Additional privileges secured to the widow by these charters. 20. Dower ad ostium ecclesise. 21, 22. Extent to which the wife might be endowed. 23. Power of the husband over his wife's contingent dower. 24. Effect of assignment of dower ad ostium ecclesise. 25. Statutes of Merton and Gloucester. 26. Dower by the common law. 27. Dower by the custom. 28. Dower ex assensu patris. 29. Dower de lapluis beale. 30. Abolition of do wer ad ostium ecclesise, ex assensu patris, and de la pluis beale. 31. Controversy as to the origin of dower in lands. 32, 33. Object of the provision : a favorite of the law. 34. Concluding observations. CHAPTER II. Dower in tee United States 23-57 \ 1. Introductory. 2-5. Dower in Virginia. (Xi) Xll 1 CONTENTS, 6-7. Dower in Massachusetts. 8. Connecticut. 9. New Jersey. 10. New York. 11, 12. Delaware. 13, 14. South Carolina. 15. North Carolina. 16. Tennessee. 17. Georgia. 18. Mississippi. 19. Alabama. 20. Khode Island. 21. Maryland. 22. Vermont. 23. Kentucky. 24. New Hampshire. 25. Pennsylvania. 26. Ohio. 27, 28. Indiana. 29. Illinois. 30. Michigan. 31. Missouri. 32. Arkansas. 33. Maine. 34. Florida. 35. Wisconsin. 36. Iowa. 37. Minnesota. 38. Oregon. 39. Kansas. 40. Texas. 41. California. 42. Louisiana. CHAPTER III. Of Marriage as a Requisite of Dower . . 58-68 g 1. Valid marriage essential to dower. 2. The English marriage acts. 8. The regular and the irregular marriage. 4—19. Marriage per verba deprsesenti at common law. CONTENTS. XU1 CHAPTER IV. Of Marriage per Verba de PrjEsenti in the United States 69-93 \ 1, 2. Views of American commentators. 3-8. The doctrine in New York. 9. Maryland. 10. New Jersey. 11. Pennsylvania. 12. California. 13. Ohio. 14. Louisiana. 15,16. Kentucky. 17. Alabama. 18. Texas. 19, 20. Massachusetts. 21-24. Maine. 25-27. New Hampshire. 28. Tennessee. 29,30. Vermont. 31. Mississippi. 32. North Carolina. 33, 34. Rule as held in the Supreme Court of the United States. CHAPTER V. Op Marriage per Verba de Ftjturo cum Copula . . 94-99 \ 1, 2. Distinction between marriage per verba de prsesenti and per verba de futuro cum copula. 3-6. The doctrine in the United States. 7. Concluding observations. CHAPTER VI. Whether the Irregular Marriage confers a Right of Dower 100-107 § 1. Introductory. 2-4. Doctrine of the ancient text-books. 5, 6. Tendency of the modern English authorities. 7. Views of American text writers. 8. Analysis of the authorities. 9, 10. Incidents of the irregular marriage in England. 11, 12. Inapplicability of the English doctrine in the United States. XIV CONTENTS. CHAPTER VII. Op Marriages Void in Law 108-128 1 1, 2. Marriage de facto and marriage dejure. 3, 4. Matters which render a marriage void. 5-15. Prior marriage undetermined. 16, 17. Idiocy. 18-20. Lunacy. 21. Duress. 22-27. Fraud. 28. Error. 29. Marriage induced by duress, fraud, or through error, at the option of the injured party, treated as voidable on'y. 30. Statutes requiring a decree of nullity. 31. Marriage 'within the prohibited degrees. 32-34. Marriage between whites and negroes. 35, 36. Failure to observe statutory regulations. CHAPTER VIII. Or Marriages Voidable in Law ... . 129-142 (S 1. Introductory. 2-10. Marriage within the age of consent. 11-17. When marriage within the age of consent confers dower. 18. Impotence. 19. EfFect of decree of nullity. 20-23. Rule as to foreign marriages. CHAPTER IX. Alienage of the Husband or Wife as affecting the Right of Dower 143-185 1 1. Introductory. 2, 3. Alienage at common law. 4. Naturalization and denization at common law. 5, 6. Alienage in the United States. 7-50. In the several States. 51. In the District of Columbia. 52. American statutory modifications of the common law considered. 53. Naturalization in the United States. 54-58. Naturalization in the United States prospective only. 59-61. What persons can not become citizens. CONTENTS. XV CHAPTER X. Or the Nature and Qualities of the Property subject to Dower 186-214 $1. Introductory. 2. Lauds and tenements. 3. Hereditaments real. 4-10. Mines and quarries. 11-24. Wild lands. 25-39. Shares in corporations. 40. Water granted for hydraulic purposes. 41,42. Slaves. CHAPTER XI. Of the Nature and Qualities of the Estate subject to Dower 215-236 \ 1. Introductory. 2, 3. The estate must be one that the issue of the wife might inherit. 4. Not necessary that the wife should have issue. 5. It must confer a right to the immediate freehold. 6, 7. Incorporeal hereditaments governed by the same rule. 8, 9. The husband must be vested with the freehold and inheritance simul et semel. 10. There must be no intervening freehold estate. 11, 12. Intervening chattel interest no impediment to dower. 13-15. Determination of the intermediate estate during the coverture gives dower. 16-34. Effect of intervening contingent freehold remainder. 35. The vesting of such remainder defeats dower. 36, 37. Effect of intervening possibility. CHAPTER XII. Of Seizin as a Requisite of Dower .... 237-267 \ 1. The general doctrine. 2-5. Nature and incidents of seizin. 6-11. Seizin in the United States. 12-15. Mere right- of entry insufficient to give dower at common law. 16. Judgment alone against disseizor inoperative to confer seizin. 17. Execution served by the heir insufficient to give dower. 18. Necessity of actual entry abrogated by statute in England. 19-21. The doctrine in the United States. XVI CONTENTS. 22, 23. Effect of death of bargainee before enrollment. 24—26. Seizin in law sufficient to give dower. 27. Conveyances under the statute of uses. 28. Shifting uses. 29. Doctrine of uses in the United States. 30. Seizin of incorporeal hereditaments. 81, 32. Tortious seizin. 83. Joint seizin. 34, 35. When rendered sole by relation. 36-38. Transitory seizin. 39-46. Conveyance, and simultaneous reconveyance by mortgage. 47, 48. Requisites of the rule making such seizin transitory. 49. Instantaneous seizin. CHAPTER XIII. Dower in Estates in Pee Simple, Fee Tail, and Es- tates ACQUIRED BY EXCHANGE .... 268-275 § 1. Dower in estates in fee simple. 2-6. In estates in fee tail. 7—11. In estates acquired by exchange. 12-14. Effect of the determination of estates by natural limitation. CHAPTER XIV. Dower in Determinable Estates 276-307 1 1. The maxim cessante statu primilivo cessat derivativus. 2. Dower in defeasible estates. 3-5. In estates upon condition. 6-8. In base and qualified fees. 9-12. In estates determinable under power of appointment. 13, 14. In estates determinable under collateral limitations. 15-38. In estates determinable under conditional limitations, or by executory devise. CHAPTER XV. Dower in Estates in Remainder and Reversion . . 308-320 § 1-6. The general doctrine. 7, 8. Lands subject to prior right of dower. 9-18. Rule where the estate comes by descent. 19. Rule where the estate is acquired by devise. 20. Illustration of the doctrine. 21,22. Release or extinguishment of the elder right. 23-26. Rule where the estate is acquired by purchase. CONTENTS. XV11 CHAPTER XVI. Dower in Estates in Joint Tenancy, Coparcenary and Common 321-342 \ 1-5. The rule at common law as to estates in joint tenancy. 6-12 Statutory modifications in the United States. 13-17. Dower in estates in coparcenary and common. 18-33. Effect of sale in partition. CHAPTER XVII. Dower in Estates not op Inheritance .... 343-356 \ 1-5. Rule at common law as to estates for life. 6-9. Rule in the United States. 10-18. Dower in estates for years. 19. In estates at will. 20, 21. In wrongful estates. CHAPTER XVIII. Dower in Rents and Annuities 351-365 \ 1-8. Dower in rents. 9-12. The doctrine as to annuities. CHAPTER XIX. Dower in Trust Estates 366-394 § 1, 2. At common law estate of cestui que use not subject to dower. 3. The Statute of Uses. 4^17. Dower in estate of cestui que trust. 18. Statute 3 & 4 Will. IV. chap. 105. 19-25. Rule in the United States. 26. Reversionary estate of cestui que trust. 27, 28. Disseizin of cestui que trust. 29-35. Estate of trustee. VOL. I. B XV111 CONTENTS. CHAPTER XX. Dower in Equitable Estates acquired under Execu- tory Contracts oe Purchase . . . 395-428 \ 1-3. Introductory. 4-10. In what States seizin of the legal estate is required. 11-36. In what States dower may be had of equitable estates. 37-44. Whether the equity must be complete. 45-49. The rule requiring the husband to be possessed of the equity at his death. 50-52. The rule where the husband receives the legal title after transferring his equitable estate. CHAPTER XXI. Dower under the Doctrine op Equitable Conversion 429-441 \ 1. The doctrine of equitable conversion. 2-11. Dower in money directed to be converted into land. 12. Dower in land ordered to be turned into money. 13-15. The right and effect of election. CHAPTER XXII. Dower in Mortgaged Estates 442-456 g 1-7. Dower in equities of redemption at common law. 8-20. The rule in the United States. 21. Dower in equities of redemption of mortgages for years. 22, 23. Dower in the estate of the mortgagee. CHAPTER XXIII. Dower in Equities of Redemption as against a Mort- gagee 45Y-494 2 1, 2. Dower before the mortgage becomes absolute. 3-9. Eight of the widow to redeem. 10. Extent to which she must redeem. 11 12. Rule where the husband is grantee of part, only, of the mortgaged premises. 13-21. Rule where the mortgagee has acquired the equity of redemption. CONTENTS. XIX 22. Redemption by the widow a condition precedent to dower. 23. Bight of a widow who has redeemed, to be reimbursed. 24, 25. Foreclosure' and sale after the husband's death. 26-30. Foreclosure and sale during the husband's lifetime. 31-34. Whether the wife must be made a party to such proceeding. 35. Terms upon which she may redeem where Bhe was not made a party. 36. Foreclosure by entry. 37-51. Whether the widow may have the mortgage satisfied from her husband's estate. CHAPTER XXIV. doweb as against the heir of the mortgagor, or the Purchaser of the Equity of Redemption . . 495-529 $ 1-21. Where the holder of the equity has redeemed, the widow must contribute. 22-24. Whether she must contribute where the mortgage is redeemed in the husband's lifetime. 25. Principal or interest of the mortgage debt must be payable before contri- bution can be required. 26-28. Extent to which the widow must contribute. 29-36. Rule where the holder of the equity has procured an assignment of the mortgage. 37. Election to contribute, or have the mortgage debt deducted from the value • of the land. 38. As against a holder who has failed to redeem, the widow may have dower as of an unincumbered estate. 39-41. Dower where there are successive mortgages. 42-51. When the mortgage will be treated as satisfied. CHAPTER XXV. Dower as against the Vendor's Lien for "Unpaid Pur- chase Monet 530-535 CHAPTER XXVI. Dower in Lands acquired for Partnership Uses . . 536-549 CHAPTER XXVII. Dower in Lands appropriated to Public Uses . 550-555 XX CONTENTS. CHAPTER XXVIII. Dower as affected by Acts of the Husband prior to the Marriage 556—515 \ 1. Alienation before marriage defeats dower. 2-5. Rule where the alienation does not become fully operative until after marriage. 6. Alienation on the day of marriage. 7, 8. Void and voidable conveyances. 9-14. Conveyances fraudulent as to the wife. 15-21. Contracts of sale before marriage. 22, 23. Charges created before marriage. 24, 25. Mortgages executed before marriage. 26-28. Husband's release of equity of redemption of mortgage executed before marriage. 29-33. Judgments recovered before marriage. 34. Leases for life made before marriage. CHAPTER XXIX. Dowffit as affected by Acts of the Husband during the Coverture 516—609 (S 1-3. At common law, dower can not be defeated by the husband after it has once attached. 4, 5. Exceptions to this general rule. 6, 7. Instances in which the wife is concluded from avoiding the acts of the husband. 8-15. Wife may avoid collusive recovery against the husband. 16, 17. Stat. 3 & 4 Will. IV. ch. 105. 18. Statutory changes in the United States rendering the concurrence of the wife unnecessary to divest dower. 19, 20. The rule in Connecticut. 21, 22. Vermont. 23-26. North Carolina. 27-31. Tennessee. 32, 33. Georgia. 34. Mississippi. 35. New Hampshire. 36-40. Pennsylvania. 41. States in which the.common law rule is retained. 42. Execution of contract of sale made prior to the marriage. 43. Husband's release of equity of redemption of mortgage executed during the coverture. CONTENTS. XXI 44. Sale of equity of redemption on execution against the husband 45. Mechanics' lien. 46-54. Forfeiture by reason of the husband's crime. CHAPTER XXX. Dower where the Wife has joined in a Conveyance Fraudulent as to Creditors .... 610-617 CHAPTER XXXI. Consummation of the Right of Dower .... 618-622 1 1-4. By the death of the husband. 5-7. By sentence of divorce. Appendix ... 623-624 Index 625-664 INDEX TO CASES CITED. A. PAOE PAGE Aughtie v. Aughtie , 140 Aaron v. Bayne 383, 396, 596 Averill v. Loucks 546 Adams v. Chaplin 270 Aymar v. Raff 136 v. Hill 261, 265, 454, 463, 508 v. Beekman 303, 306 Adkins v. Holmes 109, 125 ,392 , 564, 566 B. Ainslie v. Martin 143, 146, 182 Albany v. Derby 173 Bachman v. Chrisman 409 Aldrich v. Manton 167 Bailey v. Duncan 264 405 418, 424 Alexander v. Cunningham 347 v. Fiske 183 Allan v. Young 122 Baker v. Chase 561, 562 Allen v. McCoy 201 Ballentine v. Poyner 202 v. Holton 324 Bambaugh v. Bambaugh 325 v. Allen 384, 413 Bank of Ogdensburgh v. Arnold 457, 485 Allison v. Wilson 440 Bank of Waltham v. Waltham 210 Alsberry v. Hawkins 152 Banks v. Sutton 21, 367, 369, 370, 371, Ambrose v. Ambrose 372 372, 373, 374, 375, 377, 379, 400, Ancott v. Catherick 260 442, 455, 459 465 476, 560 Anderson v. Millikin 184 Banks v. Walker 167, 182 Anonymous 119, 182, 280 Barbour v. Barbour 453, 508, 510, 518, Anstice v. Brown 167 520, 521 Apple v. Apple 218, 308, 309, 312 Barford v. Street 283 Appleton v. Boyd 324 Barker v. Barker 297, 306 Archer's case 223, 226 v. Parker 449 526, 603 Arnett v. Arnett 213 Barkshire v. The State 127 Arnold v. Arnold 218, 308 Barnes v. Wyethe 121 v. Ruggles 210 v. Gay 416, 421, 422, 423, v. Earle 130 532, 534 Arrant v. Robertson 267, 602 v. Mawson 190 Arrington v. Arrington 592 Barr v. Galloway 241 Arundel's case . 274 Bartholomew v. Belfield 606 Ashby v. Palmer 441 Bartlett v. Gouge 392 Atkins v. Kron 168 v. Van Zandt 341 Atkinson v. Baker 345 Barzizas v. Hopkins 173 Attorney-General v. Scott 377 378, 381 Bashaw v. The State 89, 128 Atwood v. Atwood 253, 318 Bateman v. Bateman 394 Aubin v. Daly 365 Bates v. Bates 218, 221 ( xxiii ) XXIV INDEX TO CASES CITED. Beamish v. Beamish 68 Bear v. Snyder 308, 315 Beard v. Knox 57 Beardslee v. Beardslee 220, 244, 278, 279, 308 Beek v. MoGillis 167 Bedford's case 274, 275, 359 Bedon v. Bedon 270 Beekman v. Hudson 312, 317 Beer v. Ward 64 Belknap's ease 619 Bell v. Mayor of New York 261, 451, 461, 462, 464, 475, 476, 478, 482, 485, 508, 512, 513 Bell v. Phyn " 545 Ex parte 379, 560 Bennett v. Smith 133 Benson v. Scot 576, 579 Benton v. Benton 121 Bergen v. Bennett 440 Berkshire v. Vanlore 255, 277, 354 Berrien v. Berrien 438 Bevant v. Pope 392, 455 Billings v. Taylor 194 Binney's case 208 Bird v. Gardner 447, 460, 489, 498 Bishop v. Boyle 603 Bishop's Appeal 410 Bisland v. Hewett 532, 572 Blain v. Harrison 453 Blair ». Thompson 264, 384, 402, 530 Blakeney v. Ferguson 396 Bligh v. Brent 204, 206 Blitheman v. Blitheman 559 Blood v. Blood 218, 251, 253, 308 Blow v. Maynard 218, 308 Blydenburgh v. Northrop 463 Bodmin v. Vandebendy 459 Bogie v. Rutledge 261, 263 Bolton t). Ballard 448, 460, 501, 525 Bonham v. Badgley 109 Boothby v. Vernon 226 Borland v. Marshall 241, 242, 247, 253 v. Nichols 409, 410, 600 Bottomley v. Fairfax 372, 560 Bourne v. Simpson 138 Bowen v. Collins 253, 383, 396, 402 Bowie v. Berry 384, 392, 403, 423, 427, 564, 601 Bowles' case Bowles v. Poore Boyd v. Talbert v. Thompson Bradley v. Holdsworth Bragg's case Bratton v. Mitchell Braxton v. Lee Brewer v. Connell v. Van Arsdale 227, 235 343 352 411 206 188 410 564 595 213, 384, 402, 406, 418, 454 Brightwell v. Mallory 210 Brinckloe v. Brinckloe 601 Brockett v. Leighton 187 Brook v. Brook 142 Brooks v. Clay 153 v. Harwood 520 Broughton v. Randall 266 Brown v. Duncan 454, 478 v. Lapham 464, 475, 506, 507, 525 v. Shilling 175, 182 v. Williams 572, 573 v. Wood 242, 243, 253 Browning v. Beane 118, 119 Brownlee, Matter of 182 Brunswick v. Litchfield 86, 128 Brury's case 109 Buchan v. Sumner 536, 546, 548 Buchanon v. Deshon 155 Buckeridge v. Ingram 187, 204, 365 Buckingham v. Reeve 213, 352 Buckitt v. Spofford 248 Buckley v. Buckley 546 Buckworth v. Thirkell 289, 306 Bullard v. Bowers 261, 454, 458, 463, 522, 526 v. Briggs 615 Buller v. Cheverton 345 Bunting v. Lepingwell 60, 105 Burgess v. Wheate 379 Burke v. Barron 416 Burnside v. Merrick 541, 548 Burr v. Sim 441 Burris v. Page 270, 347 Burtis v. Burtis 106 Bush b. Bradley 242, 247 Bushby v. Dixon 244, 253 Bustard's case 319 Butler and Baker's case 258, 271 INDEX TO CASES CITED. XXV c. Calais v. Marshfield 146 Calder v. Bull 383, 396, 590 Calloway v. Bryan 116,117 Calvin's oase 142, 143, 144, 158 Cambridge v. Lexington 117, 141 Campbell v. Hall 142 v. Clark 383, 396 v. Murphy 415, 454, 461, 494, 527 v. Knights 453, 461, 465, 471 v. Gordon 182 Appellant 201 Cape Sable Company's case 208 Cardigan v. Armitage 190 Cardwell v. Sprigg 248 Carhampton v. Carhampton 253 Carll v. Butman 453, 461, 465, 476, 508, 511,516,518,568 Carmiehael v. The State 79, 106, 128 Carr v. Ellison 441 v. Porter 270 Carter, Ex parte 465 Carter v. Goodin 453, 502, 522, 525 Casborn v. English 392 Casborne v. Soarfe 369 Case of Phipps 146 of Fines 279 Cass v. Martin 454, 461, 475, 508, 513 v. Thompson 272 Catherwood v. Caslon 66 Catterall v. Catterall 67 v. Sweetman 68 Cave v. Holford 282 Chalmer v. Bradley 439 Chalmers v. Stewart 184 Chambers v. Dickson 77 Chaplin v. Chaplin 359, 365, 367, 369, 375, 377, 381 Chapman v. Schroeder 201, 383, 396 Charles v. Monson Man. Co. 182 Chase's case 263, 359, 365, 452 Cheek v. Waldrum 454 Chelton v. Henderson 269 Cheney v. Arnold 74, 96, 98, 107 Cheseldine v. Brewer 74 Chester v. Greer 241, 251, 595 v. Willes 500 Chew v. Corn's of Southwark 242, 247 Chew v. Chew 271 v. Farmers' Bank 452 568 Chiles v. Jones 248 Chinnnbbee v. Nicks 282 Chirac v. Chirac 175 Choteau v. Thompson 603 Church v. Church 384, 402, 408, 421, 422, 452 Chudleigh's case 369 Claiborne v. Henderson 384, 385, 402, 403, 404, 418. Clark ». Munroe 261, 262, 462 v. Field 122 v. Clark 88 Clay v. White- 241 Clayton v. Wardell 73, 107 Clement v, Mattison 120 Clendenning v. Clendenning 113 Clifton v. Haig 171 Clough v. Elliott 454, 508, 513 Clowes v. Clowes 123 Coates v. Cheever 194, 261, 267, 451, 497, 522 Cooke v. Phillips 308 Coleman's case 131 Coles v. Coles 451, 522 Colgan v. McKeon 168 Collingwood v. Pace 144 Collins v. Torry 406, 451, 497, 521 v. Kincaid 607 v. Carlisle's Heirs 283 v. Jessot 61 Colson v. Colson 236 Colt v. Nettervill 207 v. Colt 370 Combs v. Young 2, 202, 593, 595 Comly v. Strader 622 Commonwealth v. Hunt 117, 140 Compton v. Bearcroft 140 v. Oxenden 500 Comyn v. Kyneto 189 Cong. Church v. Morris 148 Conner v. Shepherd 195 Connolly v. Smith 164 Conway v. Beazley 141 Cook v. Cook 213 Cooper v. Whitney 392, 452, 456 Copeland v. Sauls 168 Copp v. Hersey 454, 508 Corbet's case 358 XXVI INDEX TO CASES CITED. Cordal's case 218, 228, 231 Corfield v. Coryell 174 Cornwall v. Hoyt 607 Coster v. Clarke 384, 392, 393, 438, 549 Cotteivv. Westcott 619 Countess of Berkshire v. Vanlore 255, 277, 354 Covert v. Hertzog 410, 600 Cowley v. Anderson 257, 321, 322 Cowman v. Hall 392, 565 ■Cox v. Chamberlain 282 v. Combs 116 Cozens v. Long 607 Crabb v. Pratt 384, 402, 413, 420, 532 Crabtree v. Bramble 380, 431 Crafts v. Crafts ■ 261, 267 Craig v. Leslie 429 Cram v. Burnham 86, 91 Crane v. Palmer 385, 402, 413, 421, 422 Cranson v. Cranson 561, 562 Cregier, Matter of 312, 315, 316, 319 Crittenden v. Johnson 51, 392, 396, 456, 601 v. Woodruff 396, 601 Crocker v. Fox 590 Cromwell's case 259 Cropsey v. McKinney 109, 112 Cropsy v. Ogden 116 Crouch v. Puryear 194 Crow v. Powers 214 Crump v. Morgan 118 v. Norwood 226, 228 Cryer v. Andrews 172 Culverhouse v. Beach 181 Cumberland v. Graves 167 Cunningham v. Burdell 74 v. Cunningham 97, 622 v. Knight 261, 262, 452, 463, 568, 569 v. Moody 369, 431, 432, 435 Currin v. Finn 166 Curtis v. Curtis 379, 380 v. Hobart 622 D. Dalrymple v. Dalrymple 59, 60, 63, 94, 102, 141 Damon's case 87 Danby's case 444 Danforth v. Smith 453, 458, 461, 475, 511, 514 Daniel v. Leitch 423, 454, 461, 492 D'Arcy v. Blake 811, 369, 380, 381, 433, 443 Davenport v. Farrar 385, 402, 412 v. Sovil 453 Davidson v. Graves 893, 454, 568 v. Frew 592, 593 Davis v. Davis 51, 601 v. O'Ferrall 54, 416 v. Hall 171 v. Logan 326, 327 v. Mason 240, 242 Davol v. Howland 621 Dawson v. Godfrey 143 Dean v. Mitchell 384, 392, 393, 402, 564, 567 Dearborn v. Dearborn 458 Deeth v. Hale 439 Deforest's Appeal 383, 396 Delmonico v. Guillaume 546 Deloney v. Hutcheson 325 Den v. Hardenbergh 325 v. Johnson 611 Dennis v. Eiernan 384 Denton v. Nanny 452, 461, 479, 480, 482 v. Livingston 210 Derush v. Brown 392, 402 Dexter v. Harris 468 Dickson v. Dickson 117, 141 Dimmock's case 249 Dimond v. Billingslea 565 Divine v. Mitchum 543 Dixon v. Saville 379, 442 Dobson v. Taylor 385 Dodson v. Hay 431 Doe v. Robinson 345 v. Bernard 557 v. Breakey 68 ii. Lazerly 151 v. Hornibleu 168 v. Scudamore 226 v. Hutton 292 v. Frost 297 Dole v. Irish 183 Dolf v. Basset 327 Dolin v. Coltman 445 INDEX TO CASES CITED. XXV11 Donnelly i>. Donnelly 82, 103, 110, 112, 113 Dormer v. Parkhurst 236 Douglass v. Diokson 267 Dow v. Dow 187 v. Stock 239 Draper v. Baker 460, 522 Dred Scott v. Sandford 182 Drenkle's Estate 600 Drummond v. Drummond 601 Drury v. Drury 560 Drybutter v. Bartholomew 203 Dubs v. Dubs 384, 402, 411, 454 Dudley v. Grayson 152, 153 Duhring v. Duhring 543 Duke of Hamilton v. Mohun 459 Duke of Richmond v. Miln 154 Dumaresly v. Fishly 80, 95, 106, 109, 128 Dunbarton v. Franklin 88, 128 Duncan v. Duncan 96 Duncomb v. Duncomb 227, 235 Duncuft v. Albrecht 207 Dunham v. Osborn 218, 221, 308, 309, 312, 314, 316, 319 Dupre v. Boulard 125 Durando v. Durando 308, 312, 316, 317, 319 Durham v. Angier 199, 310 Dyer v. Clark 540, 548 E. Earl of Cardigan v. Armitage 190 Earl of Portsmouth v. Bunn 205 Earl of Bedford's case 274, 275, 359, 567 Earl of Arundel's case 274 Earl of Stafford v. Buckley 365 Eaton v. Simonds 450, 460, 464, 487, 503, 505, 506, 509, 526 Eberle v. Fisher 598, 599 Edmondson v. Montague 384, 402, 413, 420, 423 v. Welsh 392 Eldon v. Doe 151 Eldredge v. Forrestal 218, 221, 253, 308, 309, 312, 317 Elle v. Young 440 Ellicott v. Pearl 248 Ellioott v. Welch 530 Elliott v. Gurr 109 129, 139 Elwood v, Klock 314, 318 Elwys v. Thompson 465 Emerson v. Harris 242 Ennas v. Franklin 171 Escheator v. Smith 171 Eslava v. Lepretre 261, 454 Etheridge v. Malempre 148 Evans v. Evans 301 402 411, 420 Evertson v. Tappen 451, 491, 508, 513, 519 Ewings v. Ennolls 601 Ex parte Bell 379, 560 Carter 465 Hall 141 Marianne Pio 175 Newman 182 Overington 182 Paul 182 Smith 182 Exton v. St. John 343, 379 F. Fairfax v. Hunter 144 Farmers' Loan and Trust Co. v. The People 167 Farnshill v. Murray 118, 140 Farrell v. Enright 149 Fenton v. Reed 71, 82, 86, 98, 112 Ferlat v. Gogin 120, 122 Finch v. Squire 205 Findlay v. Smith 194, 200 Fines, The case of 279 Firestone ». Firestone 392, 422, 562, 563, 564, 565, 567 Fish v. Fish 454 Fisher v. Grimes 316, 347 v. Johnson 530 Fisk v. Eastman 218, 221, 308 Fitch v. Cotheal 452 Flanders v. Lamphear 458 Flavill v. Ventrice 287 Fleeson v. Nicholson 403, 597 Fletcher v. Ashburner 429, 431, 432, 439 v. Robinson 370, 376 Forbes v. Moffatt 500 Forgey «. Sutliff 160 XXV111 INDEX TO CASES CITED. Foss v. Crisp 154, 175 Golden v. Prince 175 Foster v. Means 118, 119 Gold v. Ryan 453 601 v. Dwinel 456 Gomez v. Tradesmen's Bank 392 Fowler i>. Smith 142 Goodburn v. Stevens 544 548 ■u. Griffin 273 Goodell v. Jackson 167 183 v. Thayer 324 Goodenough v. Goodenough 288 Fox v. Southack 144, 154 Goodright ». Mead 558 559 v. Husman 171 Goodwin v. Thompson 128 132 137 Frantz v. Harrow 48, 49 d. Hubbard 241 Frazer v. Fulcher 620 v. Richardson 324 Freeman v. Freeman 383, 396 Gorham v. Daniels 347 383 396, 591 Frost u. Etheridge 592, 593 Gove v. Cather 603 v. Peacock 451, 479 Governeur v. Robertson 144 Fry v. Merch. Ins. Co. 454, 461, 568, Governor v. Rector 130 569 Graham v. Bennett 77 113 v. Noble 588 v. Sam 213 v. Smith 152 Graff v. Smith 597 Furman v. Clark 452, 461 Granstein's case 182 Grant v. Dodge 261 265, 453, 463 Graves v. Graves 121 G. Gray v. The State 184 Greene v. Greene 537 539, 544 Gage v. Ward 265, 453, 461, 465, Green v. Causey 383 396, 573, 596 476, 527 v. Putnam 221, 308 Gaines v. Relf 110 v. Liter 238 248, 253 v. Gaines 392, 562 ,563 , 564, 567 v. Chelsea 242, 243, 253 Galbraith v. Greene 256 Greenwood v. Curtis 141 v. Gedge 542 546, 548 Gregory v. Baugh 183 Gammon v. Freeman 261, 262, 265, 453, 463 Greer v. Chester Griffin v. Reece 594 601 Ganer v. Lanesborough 112 Griggs v. Smith 261, 267 Gardner v. Wood 146 Grisham v. The State 90, 128 v. Greene 308, 309 Gully v. Ray 261, 264, 384, 402, 406, Garton's Heirs v. Bates 261 419, 426, 564 Gathings v. Williams 109 Gulston v. Gulston 379 Gates v. Wiseman 605 Gwynne v. Cincinnati 552 Gawen v. Eamtes 362 Geer v. Hamblin 312 314 317, 319 H. Germond v. Jones 392, 393 Gest v. Flock 440 Hale v. Plummer 542, 548 Gibson v. Crehore 450, 460, 464, 465, v. Munn 397 475, 476, 487, 489, 513, 515, 516, 518, 526 Haleyhuton v. Kershaw Hall v. Ashby 171 241 Giles v. Gullion 48, 49, 555 Ex parte 141 Gillespie v. Somerville 384 402, 420 Hallett v. Collins 80, 93 Gilliam v. Moore 261, 262 Hamaker v. Hamaker 118 Gillis v. Brown 346 Hamblin v. Bank, &c. 322, 326 Gilpin v. Howell 209 Hamilton v. Hughes 384, 389, 402, 406, Given v. Marr 622 423, 424 Godwin v. Winsmore 378 v. Mohun 459 INDEX TO CASES CITED. XXIX Hamlin v. Hamlin Hantz v. Sealy Harding o. Alden Hardy v. De Leon Hargreaves v. Parsons Hargroves v. Thompson Harrison v. Eldridge Harrow v. Johnson Hart v. McCollum 383, 396, 401 76 621, 622 172 207 128 528, 603 454, 461, 477, 493, 603 38, 383, 396, 454, 596 Hartshorns v. Hartshorne 452, 477, 513, 518, 568 Hartshorn v. Hubbard 458 Hartwell v. Jackson 113 Hastings v. Farmer 183 v. Crunckleton 201 v. Stevens 454, 461, 465, 475, 490, 508, 522, 526 Hawkins v. Page 405 Hawley v. James 283, 384, 402, 406, 407, 408, 421, 423, 451, 557 ■v. Bradford 451, 477, 490, 491 Haydon v. Gould 105 Hearle v. Greenbank 369, 431 Heart v. State Bank 210 Hebron v. Colchester 147 Heed v. Ford 384, 402, 406, 423, 425, 426, 564 Heffer v. Heffer 123 Heffner v. Heffner 112 Heigham v. Bedenfield 559 Helenstine v. Garrard 241 Helffenstein v. Thomas 128 Helfrich v. Obermyer 598 Hemming v. Price 109 Henegan v. Harllee 454, 461, 493 Henry's case 450, 520, 522 Henry v. Felder 270 Herbert v. Wren " 361 Herron v. Williamson 392, 404, 418 Heseltine v. Siggers 207 Heth v. Cocke 454, 461, 465, 481, 485, 568 Heyns v. Villars 288 Heywood v. Smith 280 Hickman v. Irvine 201 Hicks v. Cochran 74 Higginbotham v. Cornwell 602 Higgins v. Breen 110, 112 Hildreth v. Jones 526 Hill v. Adams 459, 560 v. Mitchell 2, 187, 213 Hinchman v. Stiles 452, 477, 492, 522, .523, 525 Hinnershits v. Bernhard 410, 600 Hinton v. Hinton 392, 455 Hiram v. Pierce 128, 140 Hitchcock v. Harrington 256, 451, 495, 508, 521 Hitchens v. Hitchens 218, 313, 317, 459 Hoogland v. Watt 451 Hobbs v. Harvey 261, 453, 527 Hoby v. Hoby 191 Hodges v. McCabe 592, 593 Hogle v. Stewart 607 Holbrook v. Finney 261, 267, 324, 326; 462 Holdernesse v. Carmarthen 365 Holland v. Cruft 269 Holmes v. Holmes 79, 491 Holt v. Hemphill 241 v. Clarencieux 132 Hooker v. Hooker 228, 230 Hoots v. Graham 201 Hopkins v. Frey 384, 403, 452 Hornsey v. Casey 601 House v. House 451, 462, 491, 508, 514 Howard v. Priest 542, 548 v. Bartlet 140 v. Cavendish 188 Howe v. Starkweather 210 Howse v. Chapman 205 Hubbard v. Goodwin 173 Hubbell v. Inkstein 113 Huckler v. Cobel 403 Hughes v. Shaw 595 Hull v. Rawls 116 Humble v. Mitchell 207 Hunt v. Warnicke 152 Hurst v. Meason 208 Hutchins v. State Bank 210 I. Iaege v. Bossieux 603 Ilderlon v. Ilderton 141 Inglis u. Trustees Sailor's Snug Harbor 146 XXX INDEX TO CASES CITED. Ingram v. Morris Innes v. Jackson In re Drenkle's estate In the Matter of Taylor Isham v. Ben Iron Co. 558, 562. 573 446 600 73 210 Jackson v. Claw v. Winne u. Burns v. White ■a. Lunn v. Etz v. Adams v. Sanders ■u. Wood v. Brownson v. Sellick v. Howe v. Dewitt v. Kip v. Edwards v. Schauber ■u. Burr v. Parker Jacques v. The Public Admr. 71, 103, 115 71 143 146 167 167 167 173 183 201 201, 242 243 261, 451, 462, 569, 571 279, 281 327, 329, 330, 334 440 440 444 James v. Rowan v. Morey Janes v. Janes Jeffries v. Ankeny Jenkins v. Bisbee v. Jenkins Jennison v. Hapgood Jenny v. Jenny Jewell v. Jewell Jinkins v. Noel Johns v. Johns Johnson v. Kincade v. Thomas v. Perley Jones v. McMasters v. Patterson 74, 119, 124 326, 384, 392, 403 500, 519 112 184 74 118, 119 450, 477, 526 383, 396, 591 92 148 204, 210 119 384, 402, 406 200 172 384, 402, 411 Junk v. Canon 384, 402, 411, 423, 425 K. Kay v. Webb Keckley v. Keckley 168 454, 493 Keenan v. Keenan Keith v. Trapier Keller v. Michael Kelly v. Harrison v. Mahan Kemble v. Church Kenley v. Kenley Kennerly v. Misso. Ins. Co. Kenn's case Kent v. BurgeBS v. Harpool Keyes v. Keyes Khun v. Kaler Kidder v. Blaisdell Kilham v. Ward Killinger v. Beidenhauer King, The, v. Fielding v. Dunsford v. Bates Kingman v. Sparrow Kinsolving v. Pierce Kintner v. McRae Kirby v. Dalton Kirk v. Dean Kittle v. Van Dyck Klutts v. Klutts Knight v. Barber v. Frampton Knox v. Jenks Kreider v. Kreider Kurtz's Appeal 171, 182 454, 475, 478 598 143, 147, 157 384, 402, 410 119 112 555, 601 105, 140 141, 142 228 89, 118 199 383, 396 146 600 62 194 205 212 248 392, 564, 565, 567 414, 422 •598 261, 262, 451 384, 403, 415, 421, 454, 532 207 393 241, 248 598 410 Labatut v. Scmidt Lacon v. Higgins Ladd v. Ladd 388 Lamar v. Scott Lambert's Lessee v. Paine Lane v. Baker v. Gover Lanfair v. Lanfair Latour v. Teesdale Laurens v. Jenney Lawrence v. Brown v. Beverleigh v. Miller Lawson v. Morton 384, 171 , 182 140 , 396 , 590 187 143 184 568 527 63 171 273 431 452 392, 406, 423, 424 INDEX TO CASES CITED. XXXI Leavitt i>. Lamprey 812, 316, 318 Lee v. Smith 113 v. Salinas 172 v. Lee 213 ■v. Lindell 328, 336 Leefe, Matter of 167 Leigh and Hanmer's case 135 Leinaweaver v. Stoever 409, 410, 600 Lenox v. Notrebe 392 Letters v. Cady 78 Lewis Bowles' case 227, 235 Lewis v. James 416, 453 v. Moorman 413, 420, 532 Ligonia v. Buxton 86, 128 Lillingston's case 578 Lincecum v. Lincecum 113 Lindell v. McNair 50 Lindsey v. Stevens 384, 402, 406, 418 Link v. Edmondson 283, 557 Little's case 182 Littlefield v. Crocker 453 Littleton v. Littleton 561, 562, 592, 593, 596 Little Miami R. R. Co. v. Jones 554, 555 Lloyd v. Conoyer 328, 529, 602 v. Petitjean 142 Lobdell v. Hayes 399, 423 London v. London 595 Londonderry v. Chester 87, 107, 128 Lord Fairfax's case 144 Lord Sandys v. Sibthorpe 204 Lord Stafford v. Buckley 204 Lord Cromwell's case 259 Lord Windsor's case 345 Lord Clancurry's case 142 Lord Abergavenny's case 578 Loring v. Melendy 350 Loubat v. Nourse 543, 548 Low v. Burron 343, 345 Lund v. Woods 450, 460, 464, 471, 487, 571, 603 Lynch v. Clarke 167 M. Macauley v. Dismal Swamp Land Co. 201, 602 Machell v. Clarke 279, 280, 558, 559 Mahoney v. Young 273 Majury v. Putnam 446, 498 Malin v. Coult 385, 402, 413, 421, 422 Mangue v. Mangue 84, 107, 109 Manhattan Co. v. Evertson 610, 617 Mann v. Edson 220, 253, 383, 396 Manning's case 218 Manning v. Laboree 319, 453, 52*2 Mantz v. Buchanan 452, 461, 464, 465, 477, 493, 508, 568 Marianne Pic, Ex parte 175 Markham v. Merrett 546 Marsh v. Hutchinson 618, 619 Marshall v. Loveless 168 v. Conrad 173 Martin v. Martin 112 v. Woods 143, 147 v. Dryden 242 Mathewson v. Smith 454, 461, 465, 494, 522, 527 Matlock v. Matlock 542, 548 Matraver's case 619 Matter of Windle 167 of Leefe 167 of Brownlee 182 of Cregier 312, 314, 315, 316, 319 Matthews v. Matthews 329, 330 Maundrell v. Maundrell 282, 459 May v. Specht 383, 396, 401 v. Rumney 50, 383, 396, 601 Mayburry v. Brien 261, 262, 263, 322, 326, 452 Maynye's case 605, 606 McAdam v. Walker 64 McAlpin v. Woodruff 352 McArthur v. Porter 423, 529, 530, 533, 534 McCabe v. Bellows 460, 464, 470, 508 McCafferty v. McCafferty 622 McCans v. Board 213 McCartee v. Teller 384 McCarthy v. Marsh 167 McCauley v. Grimes 261, 263, 452 McCaw v. Galbraith 171 McClenaghan v. McClenaghan 171 McClure v. Harris 264, 267, 422, 453, 530 McCreery v. Allender 155 v. Somerville 155 McCulloch v. McCulloch 141 XXX11 INDEX TO CASES CITED. MoDaniel v. Richards 171, 175, 182 McDonald v. Aten 385, 402, 412, 421 McDougal v. Hepburn 210 McElroy's case 119 McGaughey v. Henry 283 McGee t>. McGee 592, 593 McGregor v. Comstock 167 Mcllvaine v. Coxe 146 Mcintosh v. Ladd 596 Mclver v. Cherry 452, 591, .594 McKee v. Pfout 241 McKinney v. Clarke 121 McLardy v. Flaherty 239 McLean, Assignee, u. Hockey 351 McMahan v. Kimball 326, 385, 402, 413, 453, 465, 476, 478, 568, 572, 601 MoNish v. Pope 392, 394 Medway v. Needham 141 Meeks v. Richbourg 171 Meigs v. Dimock 530, 531 Melizet's Appeal 555 Menifee v. Menifee 214, 396 Menvil's case 135, 145, 146, 606 Merle v. Andrews 172 Merrill v. Rumsey 233 Messiter v. Wright 450, 460, 464 Mick v. Mick 161, 164 Middleborough v. Rochester 119 Middleton v. Shelly 568 Mildmay's case 274 Mildred v. Neil 601 Miles v. Fisher 326 Milford v. Worcester 85, 128 Milledge v. Lamar 302 Miller v. Miller 324 v. Stump 384, 403, 421, 422, 428, 452 v. Wilson 385, 402, 411, 423, 614 Milner v. Lord Harewood 345 Mills v. Van Voorhis 261, 452, 461, 463, 464, 465, 477, 484, 508, 571 Mole v. Smith 459 Mongin v. Baker 607 Montgomery v. Bruere 386, 387, 411, 452, 568 v. Dorion 144, 168 Moody v. King 297 Mooers v. White 167 Moore v. Esty 218, 221, 227, 264, 279, 308, 454 Moore v. Tisdale 153 v. Rollins 194, 195, 261, 262, 453, 508, 518, 522 v. Gilliam 262 v. City of New York 552, 553 Morgan v. McGhee 140 Morrill v. Menifee 213 Morris v. Ford 241, 415 Morrison v. Gemme 51 Mosher v. Mosher 199, 272, 327 Moss v. Moss 122 Mount Holly v. Andover 122 Mrs. Danby's case 444 Murdock v. Ratcliff 350 Murrell v. Matthews 270 Mussey v. Pierre 155, 170 N. Nash v. Baltwood 195 v. Preston 260, 392, 455 Nason v. Allen 309, 453 Naylor v. Baldwin 444 Naz. Lit. Inst. v. Lowe 422, 530, 532, 603 Neimcewicz v. Gahn 490 Newbury v. Brunswick 91, 128 Newman, Ex parte 182 New River Co. v. Graves 203 Newton v. Cook 450, 508, 510, 568 Niles o. Nye 450, 507, 508 Noel v. Ewing 48, 49, 555 v. Bewley 225 v. Jevon 392, 455 Noreross, case against 85 Northeutt v. Whipp 213, 218, 221, 273, 302, 308 Northern Bank Ky. v. Roosa 350, 352 Northfield v. Plymouth 91 Norwood v. Marrow 250, 592 Nottingham v. Calvert 261, 453, 461, 462, 465, 478, 568 O. Oakes v. Marcy 248 O'Ferrall v. Simplot 54, 416 Oldham v. Sale 392, 402, 564, 566 Orr v. Hodgson 144 INDEX TO CASES CITED. xxxm Otis v. Parshley 218, 308, 309, 310 Otway v. Hudson 371, 376, 431 Overington, Ex parte 182 Overton v. Perkins 595 Owen v. Robbins 385, 402, 412, 420, 423, 425 v. Hyde 202 Owings v. Norwood 155 Page's case Page v. Page Paine's case Palmer v. Horton Palmes v. Danby 455, Parish v. Ward Paris's case Park v. Barron Parks v. Brooks Parker v. Parker v. Bleeke Parkins v. Coxe Parnell v. Parnell Parsons v. Perns u. Boyd Partington's case Partridge v. Partridge Part on v. Hervey Patterson v. Gaines Patton v. Philadelphia Paul v. Ward Ex parte Peabody v. Patten Pearson v. Howey Peay v. Peay Pense v. Hixon People v . Hovey v. Folsom v. Irvin v. Gillis Perine v. Dunn Perkins v. Little Perrin v. Perrin Perry v. Perry 106. Peter v. Beverly Pettitt v. Pettitt VOL. I. 144 213 61, 270, 273, 287, 359 607 459, 465, 476 167 320 117, 118, 128 384, 402, 413 119 557, 579 202 119 239 325 255 659 128, 130, 133, 138 140 79, 113 168 182 450, 460 75, 106, 128 283, 383, 396 54, 416 117 144, 149 167 345 561 187 121 , 120, 122, 140 429 120 Petty v. Petty 561, 562 Phelps v, Jepson 326 Phillips v. Gregg 93, 140 v. Rogers 154 Philly v. Sanders 428 Phipps, case of 146 Pickering v. Appleby 207 Pidge v. Tyler 241 Pierce v. Trigg 548 Pifer v. Ward 603 Pinkham v. Gear 454 Piper v. Richardson , 154 Pitt v. Jackson 369 Planters' Bank v. Merchants' Bank 210 Platner v. Sherwood 618, 619 Plunkett v. Holmes 226 Polly Gray v. The State 184 Pool v. Pratt 130 Poor v. Horton 354 Popkin v. Bumstead 446, 498 Portsmouth v. Portsmouth 119 v. Bunn 205 Potter v. Burchsted 312 v. Wheeler 327 v. Titcomb 155 Potts v. Cogdell 437 Powdrell v. Jones 396 Powell v. Powell 120 u. Mons. & Brimf. Man . Co. 392 Power v. Power 410 Pratt v. Taliaferro 441 Prevost, Succession of 80 Price v. Price's Heirs 209 v. Sykes 415 Priddy v. Rose 365 Priest v. Cummings 162, 164, 175, 176, 179 Pringle v. Gaw 410 Pritts v. Ritchey 384, 402, 409, 410, 411, 419, 422 423 425, 600 Proprietors, &c. v. Permit 241 Pugh v. Bell 384 402 405, 418 Pullen v. Shillito 340 Purdy v. Purdy 325, 384, 403, 423, 428, 465 Purefoy v. Rogers 224 226 227, 228 Putnam v. Putnam 117, 141 Putney v. Dresser 324 Pynchon v. Lester 450, 466, 508, 510, 520 XXXIV INDEX TO CASES CITED. Q. Quarles v. Lacy 615 Quarrington v. Arthur 194 Queen Anne's Co. v. Pratt 572, 573 Queen, The, v. Millis 64, 65, 94, 97 Badnor v. Rotheram 371 Ramires v. Kent 149 Randall v. Phillips 325 Randolph v. Doss 256, 267 Rands v. Kendall 261, 385, 402, 423, 453, 569 Rank v. Hanna 327, 601 Rankins v. Rankins 606 Rawdon v. Rawdon 118, 119 Rawlings v. Adams 392, 564 Ray v. Pung 282, 379 Reautne v. Chambers 50 Reddick v. Walsh 50 Redpath v. Rich 167 Reed v. Passer 63 v. Morrison 261, 263, 384, 402, 411, 454, 461, 477, 493, 523, 568, 597, 598 v. Kennedy 326 v. Whitney 397 v. Shepley 456 Reese v. Waters 170 Reeves v. Reeves 121 Reid v. Campbell 594, 595 v. Laing 94 Remington's case 109 Bennington v. Whithipole 140 Respublica v. Chapman 146 Rex v. Brampton 62, 142 v. Birmingham 121 v. Burton-upon-Trent 123 v. Gordon 130 v. Lady Portington 618 Reynolds v. Reynolds 308, 309, 312, 313, 315 t>. Com. Stark Co. 350 Richards v. McDaniel 171, 182 Richardson v. Wyatt 537 v. Skolfield 556 Riddlesberger v. Mentzer 409, 600 Riddlesden v. Wogan HO Ripley v. Waterworth 345 Ritchie v. Putnam 182 Robbins v. Robbins 572, 573, 574 Roberts v. Dixwell 369 Robertson v. Miller 173 v. Cowdrey 122 Robins v. Crutchley 105 Robinson v. Bland 141 v. Bates 612 i>. Miller 314, 317, 384, 402, 406 v. Townshend 365 v. Leavitt 454, 508 Robison v. Codman 308, 392, 393 Bodebaugh v. Sauks 77, 1 28 Rogers v. Rawlings 420 Rose v. Clark 73, 107 Rossiter v. Cossit 454, 461, 465, 475, 490, 508, 513, 522, 526 Rouche v. Williamson 168 Rowland v. Rowland 561 Rowton v. Rowton 384, 386, 402, 403, 418 Ruding v. Smith 142 Runyan v. Stewart 452, 505, 528 Russell v. Temple 209 v. Austin 451, 508, 519 Rutherford v. Munce 453, 477 v. Read 595 Sabell's case 109 Safford v. Safford 308, 312, 313 315 Salter v. Butler 345 Sammes v. Payne 285 287 Sandford v. McLean 491, 572, 573 574 Sandys v. Sibthorpe 204 Saville v. Saville 465 Scanlan v. Wright 154 Schall's Appeal 410 Schauber v. Jackson 440 Schnebly v. Schnebly 201 Schroeder v. Chapman 38 596 Scott v. Shufeldt 122 124 v. Cohen 171 v. Sandford 182 v. Crosdale 597 INDEX TO CASES CITED. XXXV Scott ». Hancock Scroggins ». Scroggins Seaman v. Vawdrey Sebben v. Trezevant 488, 489, 526 121 190 171 Secrest v. McKenna 253, 383, 396, 401 Seeley v. Jago 434, 439 Sellars v. Davis 112 Sergeant v. Steinberger 326 Sewall v. Lee 154, 607 Seymor's case 279, 280, 281 Shaeffer v. Weed 603 Shafher v. The State 133, 138 Shattuck v. Gregg 198 Shaupe v. Shaupe 409, 410 Shaw v. Thompson 353 Sheafe ». O'Neil 154, 443 Shelley's case 245 Shepherd v. Shepherd 377 Sherwood v. Vandenburgh 261, 402, 408 Shields v. Lyon 384, 402, 413 Shoemaker v. Walker 308, 309, 811, 384, 387, 390, 402, 410, 454, 579 Siemmessen v. Bofer 149 Sim v. Miles 98 Simonton v. Gray 453, 461, 508, 517, 518, 603 Simpson v. Gutteridge 459 Sir Anthony Mildmay's case 274 Sire v. City of St. Louis 336 Sisk v. Smith 151, 385, 402, 412, 453, 601 Sistare v. Sistare 149 Slater v. Nason 154 Slaymaker v. Gettysburg 209 Small v. Procter 248, 392 Smart v. Whaley 110, 112 Smiley v. Smiley 213 v. Wright 385, 402, 421, 423 Smith v. Adams 381, 396 v. Addleman 385, 402, 413, 421 v. Claxton 439 v. Jackson 451, 477, 544 v. Eustis 453, 461, 463, 522, 568 o. Kelley 465 v. Handy 477 v. Smith 110, 112, 113, 117, 547, 621 v. Zaner 148 v. Stanley 261, 262, 453, 463, 509, 528 Smith v. Turner d. Spencer Ex parte Smith's Appeal Sneed v. Ewing Sneyd v. Sneyd 175 801 182 274 139 260 Snow v. Stevens 449, 460, 522, 526 Snowhill v. Snowhill 440 Snyder v. Snyder 453, 461, 474 Southcoat v. Manory 445 Spangler v. Stanler 215, 348, 384, 403, 414 Spaulding v. Warren 248 Speight v. Meigs 383, 396 Spencer v. Scurr 194 Spratt v. Spratt 182 Sprint v. Hicks 364 Squire v. Compton 459 Stafford v. Buckley 204 Stanwood t>. Dunning 266, 267, 392 Starke v. Chesapeake Ins. Co. 182 Starks v. Traynor 172 Starr v. Peck 73, 95, 107 State v. Murphy 82, 124 v. Hodgskins 87, 128 v. Rood 91 v. Samuel 92, 106 v. Moore 112 v. Walters 126 v . Robbins 128 v. Patterson 140 v. Primrose 148 v. Rogers 149 e. Black mo 151 v. Boston C. & M. R. R. Co. 173 v. Penney 182 v. Ross 183 v. Managers of Elections 183 v. Hayes 183 v. Davis 183 o. Clairborne 184 v. Cantey 183 v. Franklin Bank 211 Steadman v. Palling 369 Stedman v. Fortune 383, 396, 589 Stelle «. Carroll 384, 417, 452, 453 Stemple v. Herminghouser 152 Stephens v. Swann 173 Steuart v. Beard 384, 403, 421, 422, 601 Stevens v. Stevens 189 XXXVI INDEX TO CASES CITED. Stevens i>. Smith 273, 384, 392, 402, 406, 418 v. Owen 199 Stevenson v. Dunlap 152 v. McReary 92 Stewart v. Menzies 94 v. Southard 184 ». Stewart 383, 396, 558, 562, 573, 589, 590 Stimpson v. Batterman 324 Stinson v. Sumner 601 Stokes v. Fallon 51, 156 Stone v. Stone 601 Stoppelbein v. Shulte 454, 461, 521 Stoughton v. Leigh 187, 189, 191, 361, 567, 577 Stow v. Tifft 260, 261, 451, 462, 571 Streeter v. Burbage's Heir 25 Stribling v. Ross 241, 242, 615 Strong v. Clem 48, 49, 555 Strudwick v. Shaw 247 Succession of Prevost 80 Sullivan v. Sullivan 121 Summers v. Babb 615 Sumner v. Partridge 288, 306 v. HampBon 539 Sutliff v. Forgey 159,162,170 Sutton v. Rolfe 257, 322, 326 v. Warren 140, 141 Swaine v. Perine 451, 455, 476, 499, 508, 512, 513, 519, 561, 602 Swannook v. Lyford 459, 560 Swayne v. Fawkener 204 Sweetapple v. Bindon 369, 376, 430 Swift v. Kelly 140 Tabele v. Tabele 451, 477, 491 Tabler v. Wiseman 326 Talbott v. Armstrong 48, 49, 242, 530 Tate v. Tate 241, 415, 562, 589 Taylor v. Parsley 37, 414, 591, 592 v. Diplack 266 v. McCrackin 385, 402, 413, 453 v. Fowler 453, 529 In the Matter of 73 Taylor's case 256, 353 Tempest v. Kilner 207 Terry v. Buffington 120 Tevis v. Steele 264, 266, 267, 454 Thacker v. Hawk 184 Thayer v. Thayer 383, 396, 590 The Governor v. Rector 130 The King v. Dunsford 194 v. Bates 205 The Queen v. Millis 64, 65, 94, 97 The Manhattan Co. v. Evertson 610, 617 Thomas v. Thomas 241, 250, 414 v. Simpson 410 Thompson v. Leach 225 v. Thompson 244, 384, 390, 403, 421, 454, 532, 534 v. Vance 282, 283, 347 v. Murray 392 v. Cochran 416, 421, 422, 423, 530, 532 v. Boyd 452, 466, 468, 474, 475, 515 Thorndike v. Spear 383, 396 Thoroughgood's case 239 Thornton v. Dixon 537 Thurlow v. Massachusetts 175 Thynn v. Thynn 188, 190 Tippets v. Walker 209 Tipton v. Davis 414, 415 Tisdale v. Harris 210 Titus v. Neilson 451, 478, 485, 491, 522 Tolar v. Tolar 241, 415 Took v. Glascock 280 Tooker's case 261 Torrence v. Snider 403, 417, 422 Totten v. Stuyvesant 327 Towles' case 182 Townsend v. Ash 204 Townson v. Tickell 258 Trevelyan v. Trevelyan 221 Triggs v. Daniel 213 Troup v. Wood 619 True v. Ranney 118, 142 Trustees v. Gray 153 Turner v. Meyers 118, 119 . v. Turner 365 v. Street 441 Turpin v. The Public Admr. 74 Tyson v. Tyson 242, 414, 415 v. Harrington 247, 414, 415 INDEX TO CASES CITED. XXXV11 u. Webb v. Townsend Webster v. Vandeventer 197 324 Union Bank v. The State 210 Wedge v. Moore 503, 509 510 523, 526 United States v. Rogers 182 Weekley v. Weekley 206 v. Villato 175 Weir v. Humphries 218 221 361, 362 University v. Miller 144 168 v. Tate Welch v. Buckins ■ v. Cole 308 309, 326 262 213 V. Weld v. Chamberlaine 61 Valleau v. Valleau 112 Welker v. Israel 428 Van Duyne v. Thayre 451, 461, 464, Weller v. Weller 305 468, 475 499 571 603 Welles v. Cowles 207, 208 Van Gelder v. Post 335 Wells v. Martin 607 Van Rennselaer v. Kearney 269 West v. West 182 Van Vronker v. Eastman 450, 460, 470, Westfaling v. Westfaling 345 475 603 Wheatley v. Calhoun 261, 263, 384, 402, Van i>. Barnett 441 425, 454, 461, 465 466 508, 546 Vartie v. Underwood 452 480 490 Wheatley v. Best 361, 567 Vaughan v. Holdes 239 Wheeldale v. Partridge 429 v. Atkins 249 250 Wheeler t>. Alderson 119 Vaux v. Nesbit 171 182 v. Morris 451, 461, 462, 464, Verree v. Verree 454 483 508 522, 571 Vint v. The Heirs of King 440 Wheelock v. Moulton 210 Voelckner v. Hudson 348 Whithed v. Mallory White v. Sabariego v. White 153 561, 563 172 175, 182 W. v. Willis ■v. Cutler 198 198 Wadsworth v. Wadsworth 167 v. Sayre 326 Walker v. Schuyler 201 Whitehead v. Middleton 261 453, 522 v. Denne 434 439 v. Cummins 489 572, 574 ■u. Griswold 450 460 523 527 Whiting v. Whiting 270, 279 Wall v. Williamson 140 v. Stevens 149 Walls v. Coppedge 213 Whitsell v. Mills 621 Ward v. Duloney 118 120 Whittington v. Andrews 190 v. Fuller 241 243 Wickham v. Enfeild 109 Wardrup v. Jones 172 Wightman v. Wightman 119, 141 Ware v. Washington 253 348 v. Laborde 175, 182 Warner v. Van Alstyne 408, 422, 530, 532 Wigmore's case Wilcox v. Randall 62, 95 273 Warrender v. Warrender 142 Wilde v. Fort 282 Warren v. Twilley 336 Wilkins v. French 453, 461, 463, 476, Watkins v. Thornton 308 508 517, 522 Watson v. Donnelly 167 Wilkinson v. Parish 327, 334 v. Spratley 207 Willett v, Beatty 422, 423, 454, 530, v. Clendenin 453, 461, 465, 532, 533 475 508 Williams v. Oatea 117, 141 Watts v. Ball 369 373 v. Wilson 172 Wayland's case 619 v. School Directors 184 Weaver v. Gregg 337 554 v. Jekyl 345 XXXV111 INDEX TO CASES CITED. Williams v. Wray v. Cox v. Armory v. Lambe v. Dawson v. Woods Williamson v. Parisien v. Gordon Wilson v. Davisson 422, v. Smith Windle, Matter of Windham v. Portland Windsor's case Wintiington's case Winn v. Elliott Winslow v. Chiffelle Winship v. Lamberton Winstead v. Winstead Wiscot's case Wiswall v. Hall Witham v. Lewis Woodhull v. Longstreet v. Reid Wood v. Simmons Woods v. Woods v. Wallace 454, 475, 476, 508, 362 361 308, 309 379, 443 695 530, 532 112 459 482, 530, 532, 535, 572 202 167 312 345 243 404, 426 537 613 592, 593 226, 233 617 245 328 411, 452, 466 622 115 468, 472, 474, 513, 515, 518 Woodworth v. -Paige 614, 615 Wooldridge v. Lucas 620 v. Wilkins 453, 546 Wooley v. Magie 402, 412, 420, 423, 426 Wright v. Jennings 1 v. Lore 118 v. Trustees, &c. 167 v. Saddler 167 v. Thayer 269 v. Rose 478 v. Wright 619 Wynn v. Williams 459 Yates ». Houston 84, 113, 115 Yeo v. Mercereau 167, 384, 387, 391, 402, 411, 420, 452, 602 Young v. Tarbell 261, 453, 463, 490, 522, 526 v. Gregory 621 v. Naylor 112 Z. Zeigler's Appeal Zule ).'. Zule 410 112 THE LAW OF DOWER THE LAW OF DOWER. CHAPTER I. OF THE ORIGIN AND NATURE OF DOWER. $ 1. Introductory. 2. Supposed antiquity of dower. 3. Dower not known to the ancient Britons. 4. Dos of the civil law. 5. Marriage custom of the ancient Germans. * 6. Similar custom of other northern nations. 7-11. Probable origin of dower in England. 12, 13. Provision for dower in the charter of Henry I. 14,15. In Magna Carta of King John. 16. In the first charter of Henry III. 17, 18. In the second charter of Henry III. 19. Additional privileges secured to the widow by these charters. 20. Dower ad ostium ecclesise. I 21, 22. Extent to which the wife might be endowed. 23. Power of the husband over his wife's contingent dower. 24. Effect of assignment of dower ad ostium ecclesise. 25. Statutes of Merton and Gloucester. 26. Dower by the common law. 27. Dower by the custom. 28. Dower ex assensu patris. 29. Dower de la pluis beale. 30. Abolition of dower ad ostium ec- clesise, ex assensu patris, and de la pluis beale. 31. Controversy as to the origin of dower in lands. 32. 33. Object of the provision: a fa- vorite of the law. 34. Concluding observations. 1. The origin of the custom conferring upon the widow a right to enjoy, for the term of her natural life, a certain portion of the lands and tenements whereof her husband was seized during the coverture, (when consummate, known in legal parlance as an estate in dower,) is involved in so much doubt and obscurity, that an attempt to investigate its source, and trace its history with any great degree of accuracy, would be attended with but little success. 1 The most 1 "The introduction of dower into England is of such antiquity that its origin can not be traced with any degree of certainty." Per Nott, J., in Wright v. Jennings, VOL. I. 1 2 THE LAW OF DOWER. [CH. I. learned among those who have devoted time and attention to the consideration of this subject, and favored us with the result of their researches, differ widely in their conclusions as to the real source from which the custom is derived. When we consider, in connection with this fact, that the solution of this question is of but little prac- tical importance, inasmuch as the right of dower has long been recognized, and firmly established in the law, and the general rules, and principles defining; regulating, and enforcing it, are, in a meas- ure, well understood in practice, an effort to present, in an extended form, the conflicting views of the different authors who have dis- cussed the question as to its origin and early history, might justly be deemed an unprofitable consumption of time. A brief notice of the subject, however, with an occasional reference to some of the writers — ancient and modern — who have treated it more at length, may be regarded as not wholly inappropriate by way of introduction to the more practical and important objects and purposes of our work. 2. The terms of entreaty in which Shechem solicited Jacob 1 for his daughter Dinah in marriage are sometimes referred to as fur- nishing evidence of the great antiquity of dower : " Ask me never so much dowry and gift, and I will give according as ye shall say unto me ; but give me the damsel to wife." 1 But the "dowry" here referred to bore no resemblance to the dower of the common law, nor the dowry of the civil law, 2 but was a gift made by the suitor to the father, or other near relative of the intended bride. 3 A similar custom was observed among the Grecians, until by a refinement of manners they began to look upon it as disgraceful. The existence of this custom was regarded by Aristotle as one proof that the man- ners of the ancient Greeks were barbarous, because they became the purchasers of their wives. 4 1 Bailey's S. C. Law Rep. 277, 278. "It is difficult to trace the origin of dower, but all writers admit it to be of great antiquity." Per Lacy, J., in Hill v. Mitchell, 5 Ark. 608, 610. "So ancient that neither Cote nor Blackstone can trace it to its origin." Per Catron, C. J., in Combs v. Young, 4 Yerg. 218. 1 Gen.xxxiv. 12; Beames' Glanville, p. Ill, note; Crabb's Hist. Eng. Law, 79; 19 Amer. Jurist, (July, 1838,) pp. 292, 294. 2 See post, \ 4. 'Kitto's Cyclop, of Bib. Lit., vol. ii. p. 307, title "Marriage;" Calmet's Diet, of the Bible, by Robinson, p. 352, title " Dowry." Other scriptural allusions to this custom are referred to in the works here cited. < Polit. I. 2, c. 8 ; Crabb's Hist. Eng. Law, 79, 80. CH. I.] ORIGIN AND NATURE OP DOWER. 3 3. It appears quite certain that dower in any form was unknown among the ancient Britons. The Welsh were unacquainted with it before the statute of Rutland ; l nor was it established among the Irish until they adopted the English laws. 2 We are naturally led, therefore, to regard the custom as having had its origin in England at a date subsequent to the invasion of that country, and as having been introduced there by one of the nations whose iron-clad legions or rude hordes successively overrun and established themselves upon its shores. 4. It is very questionable whether our jurisprudence is, in any degree, indebted to the Roman invasion, or to Roman laws, for the establishment of the right of dower. 3 Dower is called, in Latin, by Bracton and other early English writers, dos. In the civil law this term imported the marriage portion which the wife brought to the husband, either in land or in money, 4 and corresponded, to some ex- tent, with the maritagium of the common law. 5 The Latin term dos, therefore, is properly translated not by the word dower, but by dowry, things entirely different in their nature. 6 By the civil law the husband acquired only the usus fructus in the portion brought by his wife, during the existence of the marriage relation. Upon the dissolution of the marriage by the death of the husband, or by divorce, the entire property reverted to the wife. He could not alien the lands, but was permitted to dispose of the personalty. It was required of him, however, that upon the determination of the marriage he should restore the full value of any property disposed of by him. 7 The civil law, in its original state, had . nothing that bore any resemblance to the English law of dower. 8 Yet the ancient mode of endowment at the church door, by the husband, is supposed 1 Enacted May 24, a.d. 1282, 10 Edw. I.; Barrington's Obs. Ano. Stat. 80; see, also, pp. 70, 71 ; Hale's Hist. Com. Law, ch. 9, p. 189 : Crabb's Hist. Eng. Law, 160, 162; Wright's Tenures, 192, note. 2 Dav. Rep. 136; 1 Thomas' Coke, 442, (*567,) note (A.) 3 Crabb's Hist. Eng. Law, 79; Beames' Glanville, 111, note. * 2 Bao. Abr. 356, note ; 2 Bl. Com. 129 ; 1 Reeves' Hist. Eng. Law, 103 ; 1 Thom- as' Coke, 442, (*567,) note (A.) ; Burrill's' Law. Die, Dos, citing Heinecc. El. Juris. Civ. lib. 2, tit. 8, \ 465; see Glanville, Book 7, ch. 1. « 1 Reeves' Hist. Eng. Law,, 103; Co. Litt. 31, a.; Beames' Glanville, Book 7, ch. 1, and note, p. 138. 6 Macq. H. & W. 151, note ; Crabb's Hist. Eng. Law, 79. '2 Bac. Abr. 356, note, citing Vin. 249; Corvin, lib. 23, tit. 3; Honorius, 114, 115; 1 Thomas' Coke, 442, (*567,) note (A.) s 2 Black. Com. 129. 4 THE LAW OF DOWER. [CH. I. by some to be derived from the donatio propter nuptias of the Ro- man law, and Bracton calls it expressly by that name. 1 5. Many writers concur in ascribing the origin of dower in Eng- land to the Germans. Among that people the converse of the rule of the civil law prevailed, and it was a doctrine with them that a woman should bring no fortune in marriage, but the husband was required, at the time of the espousals, to bestow a portion of his property upon his wife. 2 In describing the customs of the ancient Germans, Tacitus says : 3 " The bride brings no portion ; she receives a dowry from her husband. In the presence of her parents and relations he makes a tender of part of his wealth ; if accepted, the match is approved. In the choice of the presents female vanity is not consulted. There are no frivolous trinkets to adorn the future bride. The whole fortune consists of oxen, a caparisoned horse, a shield, a spear, and a sword. She in return delivers a present of arms, and by this exchange of gifts the marriage is concluded." From this quotation it is to be understood that the property "given by the husband consisted in personalty ; and Sir Martin Wright has remarked that among the Anglo-Saxons the dower right was confined to this species of property,, and that there were no footsteps of dower in lands until after the Norman Conquest. 4 We shall have occasion to inquire, as we proceed, whether, upon this point, the learned writers referred to in the note are not in error. 5 6. We are told, also, that a custom similar to that attending the marriage ceremony of the ancient Germans existed among the Goths, 6 and a learned writer shows it to have formed a part of the laws of the Visigoths and Burgundians. 7 Another author, whose views are entitled to consideration, is of opinion that the English would prob- ably borrow such an institution from the Goths and Swedes, rather than from any other of the northern nations. 8 1 Burrill's Law Diet., Dower; Long's Discourses, 99-102; Bracton, fol. 92, b.; see Crabb's Hist. Eng. Law, 79. 2 1 Greenl. Cruise, p. 164, (*151,) § 1; 1 Thomas' Coke, 442, (*567,) note (A.); Hein. Elem. Jur., ch. 1, s. 5 ; 4 Kent, 36, note a.; Lambert on Dower, 10. 3 De Mor. Germ. 18, Murphy's translation. * Wright's Ten. 191, 193, quoting Lord Bacon's Hist. Eng. Gov. 104, 146, 147 ; 4 Kent, 36, note; Stearns' Real Act, 274. 6 Post, \\ 9-13. 6 01aus Magnus; 4 Kent, 36, note; Beanies' Glanville, 112, note. 7 Stuart's View of Society; 4 Kent, 36, note. 8 Barrington's Obs. Ane. Stat. 9, 10; 4 Kent, 36, note. " The laws of Henry I. CH. I.] ORIGIN AND NATURE OP DOWER. 5 7. It seems ^generally agreed, however, that many of the old Eng- lish customs are to be traced to and in fact were introduced by the Anglo-Saxons, and that the people of England are indebted to their German ancestors for much that is valuable in their constitution and laws. 1 It appears highly probable that in the marriage custom de- scribed by Tacitus 2 we have the origin of the right of dower in Eng- land; for it is not unreasonable to suppose that when those northern nations established themselves in the southern parts of Europe they carried their customs with them ; nor that, when a permanent interest was acquired in lands, the dower of the widow was extended and applied to real estate. 3 Neither would it. be strange, if, when they came to reduce their customs to writing, they fixed the portion of the husband's lands which he might allot for his wife's dower. 4 The Longabardic Code directed that it should consist of a fourth part, and the Gothic of a tenth. 5 It is also said that the Saxons on the Continent allowed the wife the half of what the husband acquired, besides the dower which was assigned to her at the marriage. 6 8. The precise time when dower in lands was introduced cannot be ascertained. Blackstone 7 is of opinion that it was entirely un- known in the early part of the Saxon constitution, and he states that in the laws of King Edmond the wife is directed to be supported wholly out of the personal estate. That dower in lands was known during the reign of Canute the Dane, who ascended the throne a.d. 1017, 8 seems very clear from a quotation furnished by Sir Matthew Hale from one of the laws of that prince: "Among the laws of King Canutus, in Mr. Lombard, (Fo. 122, ,123,) is this law, viz., No. 68. 'Sive quis incuria sive morte repentina fuerit intestato mortuus, dominus tamen nullam rerum suarum partem (prseter earn quae jure allowed a woman a third for her dower ; which corresponded with what was allowed by the Sicilians and Neapolitans, and after them by the Normans and Scotch. — LL. Hen. I., p. 70; Grand Cont. de Norm. c. 102; Reg. Maj. 1, 2, c. 16." Crabb's Hist. Eng. Law, 80; Beames' Glanville, 112, note. 1 1 Black. Com. 35, 36; Murphy's Tacitus, xlvi., note 2. * Ante, I 5. » Stuart's View of Society, 29, 30, 223-227; 4 Kent, 33, note a.; 1 Greenl. Cruise, p. 164, (*152,) \\\,1;1 Thomas' Coke, 442, (*567,) note (A.) ; Lambert on Dower, 10. * 1 Greenl. Cruise, p. 164, (*152,-) \ 1. 6 Ibid.; Beames' Glanville, 112, note. e Crabb's Hist. Eng. Law, 80, citing LL. Sax. tit. 8. ' 2 Com. 129, citing Wilk. 75. s 1 Hume, 80. He died a.d. 1035; Ibid. 83, 84. 6 THE LAW OF DOWER. [CH. I. debetur hereoti nomine) sibi assumito. Verum eas judicio suo uxori, liberis & cognatione proximis juste (pro suo cuique jure) distribute' Upon which law we may observe these five things, viz. : First, that the wife had a share as well of the lands, for her dower, as of the goods." 1 According to the Danish historians, dower was introduced into Denmark by Swein, the father of Canute^ out of gratitude to the Danish ladies who sold all their jewels to ransom him when taken prisoner by the Vandals, 2 and Blackstone suggests that dower in lands may possibly be with the English the relic of a Danish custom. 3 Perhaps the law of King Canute above referred to may give some plausibility to this supposition. 9. But whatever the fact may be with regard to the Danish cus- tom, it is certain that dower in lands, in some localities at least, was known to the Saxons. Cruise says that by the laws of King Ed- mund, whose reign commenced a.d. 941, 4 a widow was entitled to a moiety of her husband's property for life, but which she forfeited by a second marriage. 6 And he refers to a Saxon charter found in the Appendix to Somner's Gavelkind, entitled Qhirographum Pervetus- tum de Nuptiis eontrahendis et dote constituendd, in which par- ticular lands, together with thirty oxen, twenty cows, ten horses, and ten bondmen are appointed for the wife's dower. Blackstone also shows that in gavelkind tenure the widow was entitled to a con- ditional estate in one-half the lands of her husband, the condition being that she should remain chaste and unmarried. 6 10. Were it not for the uncertainty relating to the period when the "Mirror of Justices" was written, there are passages contained in that book which might assist in determining the question as to the date of the introduction into England of dower in real estate. Among the ordinances said to have been made by the estate of the realm, composed of the Earls of the kingdom who were accustomed to assemble at London under the regulations established by King Alfred/ is the following : 8 " It was ordained, That every one might 1 Hale's Hist. Com. Law, 251. See Barrington's Obs. Anc. Stat. 10. ' 2 Black. Com. 129, citing Mod. Un. Hist, xxxii. 91. 3 Ibid. * 1 Hume, 58. 5 1 Greenl. Cruise, p. 164, (*152,) \ 2; Crabb's Hist. Eng. Law, 80, citing LL. Edm. c. 2, apud Wilk.; Beames' Glanville, 112, note. 6 2 Com. 129, citing Somner's Gavelk. 51. ' Mirror of Justices, 6-15. 8 Ibid. p. 11. CH. I.] ORIGIN AND NATURE OF DOWER. 7 endow his wife ad ostium ecclesise, or of the monastery, without the consent of his heirs ; that heir females nor widows should not marry themselves without the assent of their lords, because the lords were not bound to take the homages from their enemies or other unknown persons, and the same is forbidden upon pain of forfeiture whether their parents were consenting thereunto or not ; and that widows, in case they marry without the consent of the guardians of the lands, should lose their dowries; that those also should be disinherited or lose their dowries that married before. Widows, nevertheless this, should not forfeit their inheritance for whoredom, and that the eldest son should forfeit nothing to the prejudice of his ancestors nor his heirs, living the ancestor whose heir apparent he is." The date of this ordinance is not given, and the period when the book itself was written is a disputed point. By some it is pronounced older than the Conquest. 1 Others have ascribed it to the time of Edward II. 2 It seems probable, as suggested by Mr. Reeves, 3 that both these opinions are partly right, and that a writer in the latter part of the time of Edward I., or early in the reign of Edward II., took an ancient volume bearing the name of the "Mirror," and worked it into the book we now have, promiscuously blending the antiquated law with that of the time in which it was revised. A very cursory examination of the book will show that a considerable portion of it, at least, was prepared at a period long posterior to the Conquest. 4 There is good reason, however, to believe that other portions of it belong to a much earlier date, and it is not unlikely that the ordi- nance above quoted should be included in this category. For while many things contained therein are, in substance, carried into the Great Charter, yet the author positively declares that the ordinances to which he there refers " were not put into writing and certainly published," 6 which is not true of the Great Charter. The points of resemblance between the ordinances recited in this work and Magna Carta are susceptible of simple and reasonable explanation. "For," says Blackstone, "it is agreed by all our historians that the Great Charter of King John was for the most part compiled from the ancient customs of the realm, or the laws of King Edward the Con- 1 By Lord Coke and Nathaniel Bacon. See 2 Reeves' Hist. Eng. Law, 358, note. 2 See Barrington's Obs. Ano. Stat. p. 3 ; 2 Reeves' Hist. Eng. Law, 358. 3 2 Reeves' Hist. Eng. Law, 358 et seq. *■ See pp. 251 to 284, inclusive. 6 Page 6. 8 THE LAW OF DOWER. [CH. I. fessor, by which they usually mean the old common law which was established under our Saxon princes, before the rigors of feudal tenure and other hardships were imported from the Continent by the kings of the Norman line." 1 If any of the ordinances set forth in the Mirror sprung from Magna Carta, or if that instrument were in existence when the original work was written, it is exceeding strange that no allusion is made thereto in that part of the text to which we have above particularly referred. We shall notice, as we proceed, that even in the Great Charter of Henry I. the right of dower in lands is recognized as a known existing institution, rather than as being created thereby; 2 for, while distinct allusion is made to the custom, there is no attempt to define the extent of the right, nor to declare in what it shall consist. 11. Previous to the granting of the English charters, the judicial code consisted of that collection which had probably been commenced by Alfred, continued by Canute and Edgar, and completed and established by Edward the Confessor. 3 After the subjugation of the Danes by Alfred, about a.d. 877 or 890, three systems were in use in England. Northumberland, in which the Danes settled, was gov- erned by a peculiar law called the Dane-Lage; Alfred compiled another code, entitled West-Saxon-Lage, for the province of Wessex ; and the local constitutions of the kingdom of Mercia were observed in the counties nearest to Wales, and called Mercen-Lage. 4 In the reign of Edgar, about a.d. 966, these different systems were formed into one body common to all England. The statutes thus established were confirmed by Canute, and the whole system was completed by Edward the Confessor, about a.d. 1065, and to the latter prince is attributed the revival of the Anglo-Saxon judicature at that date, which was only about one year prior to the Norman Conquest. It was these ancient customs of the realm, thus moulded into a general system of laws, that the English were so desirous to have restored after the Conquest, 5 and which constituted the basis and substance of the charters eventually exacted by them from the princes of the 1 Intro, to the Charters, Black. Law Tracts, 289. Mr. Barrington dissents from this doctrine, and maintains that the clergy and barons who were active in procur- ing the charter had every motive to, and did preserve their rights under the feudal liws introduced with the Conquest.— Obs. Anc. Stat. 7-9. a Post, \\ 12, 13. s Thomson's Charters, 396. * Thomson's Charters, 396. 6 Ibid. 397. CH. I.] ORIGIN AND NATURE OF DOWER. 9 Norman line. 1 As all these charters recognize dower in lands as an existing legal right, it is reasonable to suppose that it did, in fact, form one of the ancient customs of the Anglo-Saxons, and was afterwards adopted by the Normans as one of the legal institutions of the land. 2 12. William the Conqueror confirmed a portion of the laws of Ed- ward, not, however, without making some alterations therein. 3 He died in the year 1087, and was succeeded by William Rufus. No concessions were obtained from this king, but about the year 1101, in the next reign, was published the celebrated charter of Henry I. 4 That part of the charter which relates to dower is as follows : " Et si mortuo viro uxor ejus remanserit, et sine liberis fuerit, dotem suam et maritationem habebit, et earn non dabo marito nisi secundum velle suum. Si vero uxor cum liberis remanserit, dotem quidem et marita- tionem habebit, dum corpus suum legitime servaverit; et earn non dabo nisi secundum velle suum." 5 "And upon the death of a man, if his wife be left without children, she shall have her dower and marriage portion ; and I will not give her again in marriage except- ing by her own consent. But if the wife be left with children, she shall then have her dower and marriage portion whilst she lawfully preserves her body ; and I will not dispose of her in marriage but according to her own will." 6 13. Thus, after the lapse of about thirty-five years only, from the date of the Conquest, we find, in a charter granted by the sovereign of the realm to conciliate a people who were importuning him for a restoration of their ancient customs, an explicit recognition of the right of dower. It is hardly probable that a provision so general in its terms was intended solely for lands held in gavelkind, unless, in- deed, as Mr. Selden supposes, that tenure, before the Conquest, was a general custom of the realm. 7 The opinion that dower in lands was generally known throughout the kingdom anterior to* the Con- quest seems to be supported by the fact that so recently thereafter, a recognition of the right was incorporated into an instrument of so much importance as the great charter of Henry I. And Mr. Cruise i Ante, \ 10. 2 1 Thomas' Coke, 442, (*567,) note (A.); 1 Greenl, Cruise, p. 164, (*152,) \ 2. 3 Thomson's Charters, 398; see, also, pp. 2, 3. * Ibid. 400 ; 1 Hume, 168. 5 Bl. Intro, to the Great Charters, Law Tracts, 286, note d.; Anc. Laws, vol. i. p. 499. <> Thomson's Charters, 403. . ' 2 Black. Com. 84. 10 THE LAW OE DOWER. [CH. I. unhesitatingly expresses himself of that belief. 1 The charter of Henry I. was confirmed by Stephen, and afterward by Henry II. 2 14. Magna Qarta of King John, which is popularly known as The Great Charter, was granted June 15th, 1215, 3 or about one hun- dred and fourteen years after the charter of Henry I. In the interim was composed the Tractatus de Legibus et Consuetudinibus Regni Anglim of Glanville, the sixth book of which is upon the subject of dower. This treatise was written during the reign of Henry II., and probably about a.d. 1187. 4 From this work it appears that the mode of endowment then in common use was ad ostium ecclesise, or at the door of the monastery. 5 Indeed, Mr. Reeves says the term dos or dower, in its common and usual sense, signified that property which a freeman gave his wife, ad ostium ecclesiee, at the time of the espousals. 6 We have already seen that, according to the " Mirror of 1 1 Greenl. Cruise, p. 164, (*152,) sec. 2. 2 Thomson's Charters, 409. 8 Black. Chart, xi.; Thomson's Chart. 63. * 1 Reeves' Hist. Eng. Law, 223 ; see Barring. Obs. Anc. Stat. p. 3, note. 5 Lib. 6, c. 1. B 1 Hist. Eng. Law, 100; and see 4 Kent, 36; 1 Greenl. Cruise, p. 164, (*152,) sec. 3; 1 Thomas' Coke, 442, note (A.) In the Liber de Antiquis Legibus, reference is made to a charter of Robert de Gant of 1168, in which tenure in dower is thus described: "Avicia, mater Willelmi de Curci, tenet feoda duorum militum." Pref. Liber de Antiquis Legibus, Camden Soc. Pub. lvi. In the same publication we have the following account of the book here referred to : " The manuscript known as the Liber de Antiquis Legibus, now deposited in the Record Room, Town Clerk's Office, at the Guildhall of the City of London, is a small folio, nine inches and a half in length, and seven inches in breadth, the binding of white leather, covering wooden backs, and containing 159 leaves of parchment, paged continuously with Arabic cy- phers. The index prefixed to the volume indicates the successive chapters which it was originally intended should compose the volume ; but the first chapter and three others in the body of the manuscript were left blank, though since written over by matter of later insertion. The original portion of this manuscript will have been written throughout in Latin in the year of our Lord 1274, 2 Edward I., and the re- mainder added at different intervals in French, which later date will also apply to the references in the margins. A considerable portion of this volume is filled with extracts from the Gesta Regum Anglorum of William, the monk of Malmsbury, under titles of the writer's own composition. At the top of the page, the reverse of folio 63, commence the Chronicles of the Mayors and Sheriffs of London, and the events which occurred in their times from the year 1188 to the year 1274, up to the month of August, the preparations for the coronation of Edward I., who landed at Dover the 2d of that month, being the subject-matter of the closing paragraphs of this val- uable portion of its contents. The title of the Book of Ancient Laws is only appli- cable to the chapters 38 and 44 ; the first of which contains the regulations pre- scribed by the name of Assize, as to the inhabitants of London in respect of their CH. I.] ORIGIN AND NATURE Of DOWER. 11 Justices," this was the description of dower ordained in the time of the ancient English kings. 1 And the same author complains "that no woman is dowahle if she have not been solemnly espoused at the door of the monastery, and there endowed," and that Magna Carta is defective in failing to provide a remedy for this injustice. 2 The changes wrought in this species of dower during succeeding reigns, including the adoption of the remedy suggested by the Mirror, we will note hereafter. 15. Chapter VII. of the Great Charter of King John is as follows : "Vidua, post mortem mariti, sui statim et sine difflcultate, habeat maritagium et hsereditatem suam ; nee aliquid det pro dote sua, vel pro maritagio suo, vel hsereditate sua, quam hsereditatem maritus suus et ipsa tenuerint die obitus ipsius mariti ; et maneat in domo mariti sui per quadraginta dies post mortem ipsius, infra quos assig- netur ei dos sua." 3 "A widow, after the death of her husband, shall immediately, and without difficulty, have her marriage and her in- heritance ; nor shall she give anything for her dower, or for her marriage, or for her inheritance, which her husband and she held at the day of his death : and she may remain in her husband's house forty days after his death, within which time her dower shall be assigned." 4 16. The first charter of Henry III. bears date November 12th, buildings and dwellings, and the second the Provisions made by the Lord Henry, the King, son of King John, and his Council, to amend the English laws, of which the larger portion had been ordained in the time of the Earl of Leicester, in the year of the Lord 1264, after the battle of Lewes, fought on Wednesday, the four- teenth day of May." Ibid. p. 1. 1 Ante, sec. 10; Mirror of Justices, p. 11. 2 Pp. 253, 254. 3 Black. Charters, xiii.; Thomson's Charters, 68. 4 Thomson's Charters, 69. Of date 5th November, 1212, are Letters Close to the sheriffs of Hertford and Kent, respecting the lands of Henry Fitz-Aylwin, in this form: " Rex Vicecomiti Hertfordie, etc. Precipimus tibi quod omnes terras unde Henricus filius Ailwini Major Londoniarum in Ballia tua saisitus fuit anno et die quo obiit, unde Willelmus Aguillun habuit saisinam, capias in manum nostram ex- ceptis terris que pertinent ad dotem vxoris predicti Majoris." Pref. Lib. de Antiq. Leg. Camd. Soc. Pub. xii. ; see ante, \ 14, note 6. On the 17th day of the same month the sheriff of Hertford, the sheriff of Surrey, the mayor and sheriffs of London, and the sheriff of Kent, by Letters Close before the Barons of the Exchequer, were com- manded without delay to cause Margaret, who had been the wife of Henry Fitz-Ayl- win, late mayor of London, to have her reasonable dower, which was belonging to her, of the lands and tenements which had been those of the same Henry, late her husband, in their bailiwicks. Ibid. 12 THE LAW OP DOWER. [CH. I. a.d. 1216. 1 Chapter VII. of King John's charter is retained ver- batim, but there is added thereto the following provision : " Nisi prius ei fuerit assignata vel nisi domus ilia sit castrum et si de castro recesserit statim provideatur ei domus competens in qua possit hon- este morari quousque dos sua ei assignetur secundum quod predictum est." 2 " Unless it shall have been assigned before, or excepting his house shall be a castle ; and if she departs from the castle, there shall be provided for her a complete house in which she may de- cently dwell, until her dower shall be assigned to her as aforesaid." 3 It will be observed that in neither of the foregoing charters is any mention made as to what proportion of the husband's lands shall be assigned for the widow's dower ; nor as to whether she shall be en- dowed of all lands held by him during the coverture, or simply of those held at the time of the espousals. 17. This omission, however, is supplied in the second charter of Henry III., 4 which was granted in the following year. 5 The entire chapter above transcribed, as confirmed by the first charter of Henry III., was incorporated into this instrument, together with this additional clause : " Et habeat rationabile estuverium suum in- terim de communi. Assignetur autem ei pro dote sua tercia pars totius terre mariti sui que sua fuit in vita sua, nisi de minori dotata fuerit ad ostium ecclesie." 6 "And she shall have her reasonable estover within a common term. And for her dower shall be assigned to her the third part of all the lands of her husband, which were his during his life, except she were endowed with less at the church door." 7 The original text was also changed in one other respect. 1 Thomson's Charters, 105; Black. Charters, xxvi. 2 Black. Charters, xxviii. c. 7. 3 Thomson's Charters, 108, 109. 4 It appears, also, that by a law of Henry I. the widow's dower was fixed at one- third.— LL. Hen. I. ch. 70; Crabb's Hist. Eng. Law, 80. 5 Black. Charters, xxxv.; Thomson's Charters, 118. The Book of Ancient Laws, before referred to, contains the following order for the assignment of dower, made in the same year that this charter bears date — 1217 : " De dote. — Mandatum est Roberto de Cardinania quod nisi Comes de Insula sine dilatione plenariam seisi- nam faciat Falkesio de Breante" et Margarete uxori ejus de rationabili dote que ipsam Margaretam contingit per Baldwinum de Insula, quondam virum ipsius Margarete et filium ipsius Comitis, tunc dotem suam eis habere faciat sine dilatione secundum consuetudinem regni Anglie. Et quum, etc. Teste ipso Comite apud Oxoniam xx. die Februarii." Pref. Lib. de Antiq. Leg. Camd. Soc. Pub. lvii. 6 Black. Charters, xxxvii. c. 7 ; 2 Coke's Inst. 16, cap. 7. ' Thomson's Charters, 121. CH. I.] ORIGIN AND NATURE OF DOWER. 13 It ■was declared that the widow might remain in the principal mes- suage of her husband for forty days after his death, instead of " his house" as before provided. 1 A third charter was obtained from Henry III., bearing date February 11th, 1224, 2 but the chapter relating to dower was not changed in any particular. 3 A charter was also granted by Edward I., October 12th, 1297, 4 but no varia- tion was made thereby in the right of dower. 6 18. The Great Charter of King John, as amended and confirmed in the reigns of Henry III. and Edward I., is that usually prefixed to the various editions of the English statutes, 6 and the same given in Coke's Institutes. 7 Mr. Cruise says that nothing is mentioned in King John's Magna Carta, nor in the first charter of Henry III. respecting dower. 8 This is manifestly an error, for, as we have seen, 9 the right of dower is expressly recognized in both these charters. But it is true that in neither of them is there anything said as to the extent to which the widow might be endowed, and perhaps it is this omission to which that writer refers. And when Chancellor Kent observes that "in Magna Carta (c. 7) the law of dower in its modern sense and enlarged extent, as applying to all the lands of which the husband was seized during the coverture, was clearly defined and firmly established," 10 it is obvious that he does not refer to Magna Carta proper of King John, but to that instrument as it was amended and confirmed in the time of Henry III. 19. The word maritagium, as it occurs in the original text, is a technical expression of peculiar signification. Before the Norman 1 Thomson's Charters, 121. 2 Black. Charters, xliv.; Thomson's Charters, 38, 131. " On the Fine Roll of the 9th Hen. III., (1224,) under the heading ' Pro Margareta que fuit uxor Falcasii,' we have a copy of a precept to Thomas de Cyrences, that he take with him honest and lawworthy men of the vicinity of Buckland, Bickleigh, Walkhampton, and Co- lyton, which manors William, Earl of Devon, had assigned in dower to Margaret de Reviers, when Baldwin his son married her, and by their view and testimony, cause all the corn growing upon the land of the said manors to be valued, and if the said Margaret was willing to receive the corn at the same price, to answer thereof to the king at the terms appointed by him, then to leave to her the aforesaid corn ; and if not, then retaining the aforesaid corn to the king's use, to cause the aforesaid Mar- garet to have seizin of the said manors, having first taken security from her as to the safe custody of the said corn ; and which is dated from Winchester, 11th day of March." Pref. Lib. de Antiq. Leg. Camd. Soc. Pub. lix. 8 Thompson's Charters, 134. * Ibid. 145. 5 ibid. 148. "Ibid. 394. '2 Inst. 1. s 1 Greenl. Cruise, p. 165, (*152,) sec. 4; see, also, 1 Washb. R. P. p. 147, note 6 9 Ante, U 15 > 16 - 10 4 Com - 36 - 14 THE LAW OF DOWER. [CH. I. Conquest a widow had no power to marry again until the expiration 1 of one year after the death of her husband. 1 Coke says it was cer- tainly the law of England before the Conquest that a widow should continue a whole year in her husband's house, within which time her dower was to be assigned her. 2 A similar restriction as to marriage is said to have prevailed in Denmark and Sweden, and anciently in Germany. 3 By the civil law widows were forbidden to marry within ten months after their husbands' decease. 4 But when it was declared by the Great Charter that " a widow, after the death of her husband, shall immediately, and without difficulty, have her marriage and her inheritance," the then existing restriction upon marriage in Eng- land was at once and forever removed. 5 The widow was permit- ted to tarry forty days in the principal messuage of her husband, and this was called her quarantine ; although she was privileged to marry again within that period, yet if she did so, her widowhood was past and she lost her quarantine. 6 The fine which, under the feudal system, was exacted from the widow by the lord, for the as- signment of her dower, was also abrogated by Magna Carta. 7 20. If, as has been supposed by some writers, the rule among the Saxons entitled the widow to a moiety of her husband's lands for her dower, 8 it was greatly modified in England at some period prior to the reign of Henry II. We have already observed that during that reign the dower in common use, as stated by Glanville, was ad ostium eeclesiee? By that mode of endowment the widow was not permitted to take more than one-third the lands held by the husband at the time of the espousals. He might endow her with less. If he at- tempted to bestow more, the law reduced the endowment to one-third. If he endowed her generally of all his lands, without naming the specific lands or proportion assigned her, she was then entitled to one-third of the freehold of which he was seized at the time of the i Thomson's Char. 172. 2 Co. Lift. 32, b. s Thomson's Char. 172; Barrington's Obs. Anc. Stat. 8-10, 5th edition. 4 L. 2 Cod. de see. Nuptiis ; Taylor's Elem. Civil Law, 348 et seq.; Cooper's Jus- tinian, 427, notes; Adams' Roman Antiq. 335, 7 N. Y. ed. 5 2 Inst. 18 ; Thomson's Char. 172. « Co. Litt. 32, b., 34, b.; 9 Vin. Abr. 272, tit. Dower, (I. a.) pi. 2. Mr. Thomson says she thereby forfeited her dower, Char. 172. In this he is evidently mistaken. 'Cap. 7; 2B1. Com. 135. a See ante, \\ 6, 9; 1 Greenl. Cruise, p. 164, (*152,) sec. 2, and p. 167, (*154,) sec. 8. » Ante, I 14; Glanville, Lib. 6, c. 1. CH. I.] ORIGIN AND NATURE OF DOWER. 15 marriage. This was termed her dos rationabilis, or reasonable dower* 1 If a man had but a small freehold at the time of the es- pousals, he might afterwards augment the dower to a third part out of purchases subsequently made ; but this required a special engage- ment before the priest to endow her of his future acquisitions, and if no such engagement were made, although the husband had then but a small portion of freehold, and afterwards made large acquisitions, the widow received no benefit from the latter. 2 And if a husband had no lands, an endowment in goods, chattels, or money, at the time of the espousals, was a bar of any dower in lands which he afterwards acquired; for it was a general rule that where dower was specially assigned ad ostium ecclesise, the widow could demand no more than what was then and there assigned. 3 21. The second charter of Henry III. provided that the widow should be endowed of one-third of all the lands of her husband, which were his during his life, except she were endowed with less at the church door. 4 The consequence of this exception was, that if the husband endowed his wife ad ostium eeclesise, she was limited to such lands as were specifically assigned to her, not exceeding one- third of his entire freehold, or if the endowment were general, then to the third part of the freehold which the husband held in demesne on the day of the espousals. 6 It was only where there was no endow- ment at the time of the marriage that the widow could claim her dower in all the lands held by the husband during the coverture. Indeed Bracton, whose De Legibus et Oonsuetudinibus Anglise is supposed to have been written after the forty-sixth year of Henry III., 6 notwithstanding the provision of Magna Carta, before referred to, in his definition of the right of dower, says it must be " the third part of all the lands and tenements which a man had in his demesne and in fee, of which he could endow his wife on the day of his espou- i 1 Reeves' Hist. Eng. Law, 100-2 ; 2 Black. Com. 133-4; Glanville, Lib. 6, c. 1; Bract. Lib. 2, c. 30, \ 6 ; 4 Kent, 36; 1 Greenl. Cruise, p. 164, (*152,) sec. 3; Co. Litt. 33, b. 2 Glanv. Lib. 6, c. 1 ; Brae. Lib. 2, c. 39, Ante, I 32; Stat. Kan. Ter. (1855,) ch. 63, p. 314. 8 Comp..Laws of Kansas, (1862,) ch. 83, p. 478, \ 2 ; Acts of 1859, ch. 63, \ 2. 56 THE LAW OP DOWER. [CH. II. vision; tut in other respects the changes made are not important, so far at least as regards the nature and extent of the interest of the ■widow in the estate of her husband. 40. Texas. — The estate of dower had but a brief legal existence in Texas. An act passed January 26, 1839, by the Congress of the Republic conferred the right as it then existed in several of the neighboring States. The widow of an intestate, or of a testator who did not make a satisfactory provision for her by will, was entitled to dower in all the lands of which he died seized and possessed. If he .died without legitimate heirs of his body or their descendants, then the widow took one-half his estate, both real and personal, for life. 1 But this statute was repealed February 5, 1840, 2 and no similar pro- vision was ever re-enacted. The act relating to wills contains no clause saving dower. 3 The act of March 18, 1848, regulating de- scents and distributions, is to the following effect : If the intestate leave a child or children, or their descendants, the surviving husband or wife is entitled to one-third the personal estate, not including slaves, absolutely, and also to an estate for life in one-third the land 2-nd slaves ; if there be no child or children, or their descendants, then the surviving husband or wife may take all the personal estate, and one-half the lands and slaves absolutely; if the deceased have neither surviving father nor mother, nor surviving brothers and sis- ters, or their descendants, then the surviving husband or wife is entitled to the whole estate. 4 The foregoing provisions, it will be observed, relate solely to the descent of intestates' estates. The power of disposition by will is unrestricted ; and other enactments entirely exclude the idea of the existence of the right of dower. Thus all property, both real and personal, of the husband, owned or claimed by him before marriage, and that acquired afterwards by gift, devise, or descent, as also the increase of all lands or slaves thus acquired, are declared his separate property. All property, both real and personal, of the wife, owned or claimed by her before mar- riage, and that acquired afterwards by gift, devise, or descent, as also the increase of all lands or slaves thus acquired, are in like i Hartley's Dig. pp. 285-287, Art. 861-868 ; Oldham & White's Digest, pp. 700-1, Art. 34-41. 2 Hartley's Dig. p. 285 ; Oldham & White's Dig. p. 700. 8 Act of Jan. 28, 1840, Hartley's Dig. 977. See, also, Oldham & White's Dig. p. 454. * Oldham & White's Dig. p. 99, Art. 347 ; Hartley's Dig. p. 220, Art. 595. CH. II.] DOWER IN THE UNITED STATES. 57 manner made her separate property, the husband, however, during the marriage, being invested with the sole management of all such property. 1 All property reciprocally possessed by the husband and wife at the time the marriage is' dissolved is regarded as common effects or gains, unless the contrary be satisfactorily proved. The common property may be disposed of by the husband during the coverture; it is liable for his debts, and for debts contracted for necessaries by the wife during the coverture. Upon the death of either, if there be no child or children, the remainder goes to the survivor; if there be a child or children, then the survivor takes one-half, and the balance goes to such child or children. 2 41. California. — The statutes of California have abrogated the common law right of dower, and substituted in its stead a half inter- est in the common property. "No estate shall be allowed to the husband. as tenant by courtesy upon the decease of the wife, nor any estate in dower be allowed to the wife upon the decease of the hus- band." 3 The property, real and personal, owned by the husband or wife before marriage, and that afterwards acquired by either, by bequest, devise, or descent, is treated as the separate property of the husband or wife respectively. All acquired' during the marriage, except in either of the modes above specified, is regarded as common property. Upon the death of the husband or wife, one-half the common property goes to the survivor, and the other half to the descendants of the deceased, subject to the payment of his or her debts. If there be no descendants, then the whole goes to the sur- vivor, subject to debts. 4 42. Louisiana. — In Louisiana the rule of the civil law prevails, and the jurisprudence of that State contains nothing bearing any resemblance to the common law right of dower. 1 Act of March 13, 1848, \ 2; Hartley's Dig. 734, Art. 2421; Oldham & White's Dig. 312, Art. 1393. s Act of Jan. 20, 1840 ; Hartley's Dig. p. 737 ; Oldham & White's Dig. p. 313. s Laws of Cal. (1850-53,) p. 813, \ 10; Wood's Cal. Dig. p. 488, \ 10; Beard v. Knox, 5 Cal. 252. *Laws Cal. (1850-53,) pp. 812-814, \\ 1-13; Wood's Cal. Dig. pp. 486-489, to 1-13. CHAPTER III. OF MARRIAGE AS A REQUISITE OF DOWER. ! Paine's case, 1 Sid. 13. » Weld v. Chamberlaine, 2 Shower's Rep. 300. * Collins v. Jessot, 6 Mod. 155 ; 2 Salk. 437 ; Holt, 459. 62 THE LAW OP DOWER. [CH. III. another, they will punish such offender as an adulterer." In the report of the case given in Salkeld, the same judge is represented as holding "that a contract per verba de prsesenti was a marriage, viz. : I marry you; you and I are man and wife ; and this is not re- leasahle." In Wigmore's case, 1 decided in 5 Ann, the opinion of Lord Holt is to the same effect. "By the canon law," he said, "a contract per verba de prsesenti is a marriage; as, I take you to be my wife." 2 10. In The King v. Fielding, 3 a marriage solemnized in England by a Roman Catholic priest was held good as a marriage per verba de prsesenti, on evidence of words of present contract spoken in Eng- lish, the rest of the ceremony being read in the Latin tongue, which the witnesses present did not understand ; and this case, and also the views of Lord Holt, in Collins v. Jessot, were approved by the court in the comparatively recent case of Rex v. Brampton, determined in the 49 of George III. 4 In that case certain British subjects in St. Do- mingo, in the year 1776, undertook to contract a marriage by having the ceremony performed in a chapel in a town where they were tem- porarily residing, by a person appearing there as a priest, and offici- ating as such. The service was in French, but was interpreted into English by one , who officiated as clerk, and it was understood by the parties at the time to be the marriage service of the Church of Eng- land. Afterwards the parties cohabited as husband and wife for eleven years, and until 'the death of the husband, and the question then arose whether the marriage was legal. The court were unanimously of opinion that it was. "I may suppose," says Lord Ellenborough, "in the absence of any evidence- to the contrary, that the law of England, ecclesiastical and civil, was recognized by the subjects of England in a place occupied 'by the king's troops, who would im- plicitly carry the law with them. It is then to be seen whether this would have been a good marriage here before the Marriage Act. Now certainly a contract of marriage per verba de prsesenti would have bound the parties before that act, and this appears to have been per verba de prsesenti, and to have been celebrated by a priest, that is, by one who publicly assumed the office of a priest, and appeared i Wigmore's Case, 2 Salk. 438 ; Holt, 459. 2 And see 4 Bacon's* Ab. 530. » The King v. Fielding, 5 St. Tr. 610. 1 Rex v. Brampton, 10 East, 282. CH. III.] MARRIAGE AS A REQUISITE OP DOWER. 63 habited as such; of what persuasion, whether Roman Catholic or Protestant, does not appear." 1 11. The case of Latour v. Teesdale 2 was of the same character. It involved the legality of a marriage which took place between two subjects of Great Britain, in October, 1808, at Madras, in the East Indies. The marriage was solemnized by a Catholic priest accord- ing to the rites of the Catholic Church, and was followed by cohab- itation. It had uniformly been the custom to obtain the license of the governor, but this was not done in the present case. The mar- riage was pronounced ^alid according to the common law of England as it existed prior to the Marriage Act. Gibbs, Chief Justice, said : " In this country we judge of the validity of a marriage by what is called the Marriage Act, but as that statute does not follow subjects to foreign settlements, the question remains whether this would have been a valid marriage here before that act passed. The important point of the case, viz., what the law is by which such a question is to be governed, was most ably and fully discussed in the case of Dalrymple v. Dalrymple, 1 which has been so often alluded to, and the judgment of Sir William Scott has cleared the present case of all the difficulty which might, at a former time, have belonged to it. From the rea- sonings there made use of, and from the authorities cited by that learned person, it appears that the canon law is the general law throughout Europe as to marriages, except where that has "been altered by the municipal law of any particular place. From that case, and from those authorities, it also appears that, before the Mar- riage Act, marriages in this country were always governed by the canon law, which the defendants, therefore, must be taken to have carried with them to Madras. It appears, also, that a contract of marriage, entered into per verba de prsesenti, is considered to be an actual marriage; though doubts have been entertained whether it be so unless followed by cohabitation. In the present case a ceremony was performed, "the regularity of which it is unnecessary to discuss, because it was followed by cohabitation. All that is requisite, there- fore, by the canon law, has, been amply satisfied." 12. The case of Dalrymple v. Dalrymple, 3 referred to in the fore- . J And see the remarks of Lord Kenyon in Reed v. Passer, Peake's Cas. 232, where he pronounces a contract de prsesenti, " ipmm matrimonium.'' 2 Latour v. Teesdale, 8 Taunt. 830; 4 Eng. C. L. R. 299. 8 Dalrymple v. Dalrymple, 2 Hagg. Con. R. 54 ; 4 Eng. Ec. R. 485. A full state- ment of the case is also contained in Halkerston's Dig. of the Marriage Law of Scot- land, pp. 380 to 394 inclusive. 64 THE LAW OP DOWER. [CH. III. going opinion of Chief Justice Gibbs, was a suit brought in the Con- sistory Court of London to affirm a Scotch clandestine marriage, decided by Lord Stowell in 1811, and appealed to the Court of Arches, and thence to the High Court of Delegates, and decided by the latter in the year 1814. It had been preceded by the case of McAdam v. Walker, 1 which was instituted in 1805, and passing through the Scotch courts, was eventually carried to the House of Lords, and there decided in 1813. In both these cases the mar- riages had been contracted without clerical aid, and in every court where the question of their validity was considered, they were held good. So far as Scotland is concerned, these decisions are regarded as forever putting the question at rest. 2 13. Although the Dalrymple case arose in Scotland, it was, for a number of years, commonly understood as settling the law for those portions of the British dominions not embraced within the operation of the Marriage Act, and as declaratory, indeed, of the ancient mat- rimonial law of England. The decision was admitted on all hands to be in accordance with the principles of the continental system as administered prior to the Council of Trent, and it was supposed no good reason could be urged why England should stand as an excep- tion to the application of that general rule. Accordingly we find some of the English text writers, whose works were published ante- rior to the case of The Queen v. Millis, noticed hereafter, 3 giving it as an established principle in the law, that a contract of marriage per verba de prsesenti, without the aid of the sacerdotal office, or the presence of any one clothed in holy orders, constituted, before the Marriage Act, a legal marriage. 4 And a case 5 occurring shortly be- fore that of The Queen v. Millis, is referred to in Jacob's Appendix, No. 1, to Boper on Husband and Wife, 6 where, upon the trial of an issue out of Chancery on the legitimacy of a person born before the Marriage Act, the Lord Chief Justice of the King's Bench is said to have ruled, that at that period a contract of matrimony per verba de prsesenti amounted to a perfect legal marriage. On a motion for a new trial, the question was elaborately argued before the Lord Chan- cellor, but did not ultimately call for a decision. I McAdam v. Walker, 1 Dow. 148 ; Halkerston's Dig. of Mar. Law, 436. II Bishop, Mar. and Div. . Woods, 2 Bay, 476. 116 THE LAW OP DOWER. [CH. VII. when such unfavorable presumption goes to bastardize the issue of a marriage apparently legal and proper." 13. It is also worthy of remark that where it is sought to inter- pose an alleged prior marriage to defeat the claims of the wife, the courts, as a general thing, exact full and satisfactory proof of such marriage. Thus, in a proceeding for dower in Mississippi, the claim was resisted on the ground that at the time of the marriage the de- ceased husband had another wife living.' It was proven that four years before the marriage he was living with another woman whom he treated as his wife ; and that he said, after his marriage, and in presence of the petitioner, that his first wife was living in Georgia. It was held that this evidence was not sufficient to make out the defence. 1 14. While upon this subject, it is proper to notice that in some of the States certain statutory restrictions, more or less comprehensive, are in force, by which a second marriage is forbidden for a stipulated period after a previous marriage has been dissolved by a divorce a vinculo. In Kentucky the statute of 1809 provides that a decree of divorce shall " not authorize the injured party again to contract matrimony within two years from the time of pronouncing such final decree." And it has been held that if the injured party contracts a second marriage within the two years, it is a nullity, good for no purpose whatever. 2 The same statute declares that the offending party shall remain subject to all the pains and penalties which the law prescribes against a marriage while a former husband or wife is living. 3 15. In many of the States the guilty party is prohibited by statute from entering into a second marriage during the lifetime of the other, and it is usually held that a violation of this provision makes the second marriage void. As to the party in fault, the effect of these statutory inhibitions is to place him or her under the same disability as if no decree of divorce had passed. Thus, in Cropsy v. Ogden, 4 where a divorce had been decreed for the adultery of the husband, and he was subsequently married in due form in the lifetime of the first wife, it was held that the marriage was void, and did not confer dower. But this restriction is treated as being penal in its nature, i Hull v. Rawls, 27 Miss. (5 Cush.) 471. 2 Cox v. Combs, 8 B. Mon. 231. 3 Ibid. Act of 1809, 1 Stat. Law, 123. * Cropsy v. Ogden, 1 Kern. 228 ; Accord. Calloway v. Bryan, 6 Jones' Law, (N. C.) 569. CH. VII.] MARRIAGES VOID IN LAW. 117 and therefore is usually confined to the jurisdiction which imposes it. 1 Nor does it apply to foreign divorces. 2 It is made a question whether the mere prohibition, without words of nullity, should be construed to make void a marriage contracted in disobedience tto the prohibition. Generally it has been held to have that effect. In a case recently considered in Georgia, however, the court intimated that the marriage would be good, or, at all events, voidable only. 3 In North Carolina it is held that where a person has been divorced by reason of misconduct on his or her part, and is, therefore, under the laws of that State prohibited from marrying again, and, for the purpose of evading the law, goes into another State, and there enters into a second marriage, such marriage is void, precisely as if con- tracted in the State. 4 The case in which this doctrine is announced is opposed to the Massachusetts and Tennessee cases above referred to, and is believed to be in conflict with the rule upon this subject as commonly understood and applied in our courts. 5 In Massachusetts, however, by a recent statute, a rule similar to that prevailing in North Carolina is adopted. 6 16. Idiocy. — There is no doubt that at one period it was supposed an idiot d nativitate was competent to contract matrimony, and that after his death his widow was entitled to dower in his estate. "This doctrine as to idiots is mentioned as a point adjudged in one case, and seems confirmed by allowing dower to the wife of an idiot." 7 Lord Coke, without any apparent hesitation, states it as the rule that " the wife of an idiot, non compos mentis, or the like, shall be en- dowed." 8 So Sergeant Hawkins, in his Abridgment of Coke on Littleton, maintains "that the wife of an idiot shall have dower." 9 And in Viner's Abridgment we have the following : " If an idiot d nativitate takes a wife, they are baron and feme in law, and their issue legitimate, for he may consent to a marriage. Trin. 3 Jac. 1 Bishop, Mar. and Div. \\ 211, 212, 655-659; Cambridge v. Lexington, 1 Pick. 506 ; Putnam v. Putnam, 8 Pick. 433 ; Dickson v. Dickson, 1 Yerger, 110. » Ibid. 8 Park v. Barron, 20 Geo*. 702 ; Bishop, Mar. and Div. \ 212. 1 Williams v. Oates, 5 Ired. 535 ; see, also, Calloway v. Bryan, 6. Jones' (N. C.) Law R. 569 s The People v. Hovey, 5 Barb. 117. 6 Rev. Stat. Mass. ch. 76, \ 6; Smith v. Smith, 13 Gray, 209. See Common- wealth v. Hunt, 4 Cush. 49. » Co. Litt. 80, a. note. 8 Co. Litt. 31, a. Page 42. 118 THE LAW OF DOWER. [CH. VII. B. R. between Still and West, adjudged upon a special verdict." 1 "A strange determination," says Blackstone, "since consent is ab- solutely requisite to matrimony, and neither idiots nor lunatics are capable of consenting to anything." 2 The force of this reasoning is obvious, and it is difficult to understand upon what principle it was ever held that a person void of understanding, and absolutely inca- pable of directing the most ordinary affairs of life, was nevertheless competent to form a connection so important in its consequences as that of matrimony. 17. Whatever may have been the ancient doctrine upon the sub- ject, it is now well settled that the marriage of an idiot is absolutely void, and therefore confers no right to dower. This rule appears to result necessarily from the principle that the consent of a free and rational agent is an essential ingredient to the validity of the mar- riage contract. 3 18. Lunacy. — The same rule, founded upon like reason, prevails where either of the parties was insane at the time the marriage con- tract was entered into. 4 At common law a lunatic was considered capable of marrying during a lucid interval, but by statute of 15th Geo. II. c. 30, all marriages with lunatics are declared void, although they may have been contracted during lucid intervals. But this statute is limited to cases where a commission of lunacy has been taken out, and where this has not been done, a marriage during a lucid interval is good. 5 As the statute of George II. is not in force in the United States, it is supposed that the rule of the common law generally prevails in this country. It may be remarked, in this connection, that when unsoundness of mind is relied upon to defeat i 4 Vin. Abr. 35, pi. 8 ; see, also, Co. Litt. 30, b. note 2 : Kolle's Abr. 357 ; 1 Roper, H. & W. 339 ; Reeve's Dom. Rel. 201 ; Hamaker v. Hamaker, 18 111. 137 ; Park v. Barron, 20 Geo'. 72. 2 1 Bl. Com. 438. » Shelf. Mar. and Div. 183 ; 1 Bl. Com. 438 ; Park on Dower, 16 ; per Lord Stow- ell, in Turner v. Meyers, 1 Hagg. Con. R. 414; Sir J. Nicholl, in Browning v. Reane, 2 Phill. R. 69; 2 Kent, 75, 76; 1 Roper, Husb. and Wife, 339; Lambert on Dower, 17 ; Bishop on Marriage and Divorce, chap, ix.; Jenkins v. Jenkins, 2 Dana, (Ky.) 102; Crump v. Morgan, 3 Ired. Eq. (N. C.) 91; Foster v. Means, 1 Speer's Eq. (S. C.) 569 ; Farnshill v. Murray, 1 Bland, (Md.) 479 ; True v. Ranney, 1 Fost. N. H. 52 ; Keyes v. Keyes, 2 Fost. N. H. 553 ; Ward v. Duloney, 23 Missis. 410 ; Rawdon v. Rawdon, 28 Ala. 565. 4 See authorities cited to preceding section. 5 Shelf. Mar. and Div. 190; 1 Roper, Husb. and Wife, 339; Park on Dower, 16 ; 1 Bl. Com. 439. CH. VII.] MARRIAGES VOID IN LAW. 119 the marriage contract, it must be shown to have existed at the time the contract was entered into. Subsequent insanity does not avoid it. 1 19. It is also a well-established principle that no decree of nullity is necessary in cases either of idiocy or insanity, as preliminary to the right to insist upon the existence of the disability in any pro- ceeding in which the question may legitimately arise. The ques- tion may be made and decided, in a proceeding for dower, for dis- tribution, or in any other proceeding affecting rights or claims depending upon the validity or invalidity of the alleged marriage contract. 2 20. A general discussion of the law relating to mental incapacity, and its proper application to the matrimonial contract, is foreign to the scope and purposes of this work. Questions as to the extent of mental unsoundness or imbecility necessary to disqualify a person from entering into the marriage contract ; of the evidence requisite to establish that condition of the understanding; upon whom the burden of proof devolves ; as to the effect of cohabitation, and recog- nition of the marital relation during lucid intervals ; of temporary alienation of mind produced by excessive intoxication; and other questions of a kindred character, all of vital importance, and fre- quently extremely difficult of elucidation, have been treated at length, and with great learning and ability, in works specially devoted to the subject. To those works, and the reported cases cited in the note, the reader is referred for further information upon any or all of the questions thus arising. 3 i Shelf. Mar. and Div. 190 ; Bishop, Mar. and Div. \ 180 ; Parnell v. Parnell, 2 Hagg. Con. R. 169; Page on Divorce, 185, note. 2 2 Kent, 76; Park, Dow. 17 ; Bishop, Mar. and Div. g 187 ; 2 Greenl. Ev. {! 464 ; Wightman v. Wightman, 4 John. Ch. 343; Jacques v. The Public Admr., 1 Bradf. Sur. 499 ; Middleborough v. Rochester, 12 Mass. 863 ; Jenkins v. Jenkins, 2 Dana, 102; Foster v. Means, 1 Speer's Eq. (S. C.) 569; Johnson v. Kincade, 2 Ired. Eq. 470 ; Rawdon v. Rawdon, 28 Ala. 565. By statute the rule is otherwise in Minnesota and Wisconsin, and a decree of nul- lity is necessary to avoid the marriage. So in New York; post, \ 30. 9 Shelf, on Lunacy, 2 Law Lib.; Stock on the Law of Non Compotes Mentis, 25 Law Lib.; Ray's Med. Juris, of Insanity; Wharton & Still's Med. Juris.; Shelf. Mar. and Div. 33 Law Lib. 199 ; Browning v. Reane, 2 Phill. 69, 70 ; Turner v. Meyers, 1 Hag. Con. R. 414 ; Portsmouth v. Portsmouth, 1 Hag. Ec. 355 ; Wheeler v. Alder- son, 3 Hag. Ec. 574, 598 ; Kemble v. Church, 3 Hag. Ec. 273 ; Parker v. Parker, 2 Lee, 382 ; Middleborough v. Rochester, 12 Mass. 363 ; Anonymous, 4 Pick. 32 ; McElroy's case, 6 Wa,tts & Serg. 451 ; Foster v. Means, 1 Speer's Eq. (S. C.) 569; 120 THE LAW OF DOWER. [CH. VII. 21. Duress. — As the free assent of the mind is essential to every contract, and constitutes its very essence, it follows that, where an apparent consent to a contract of marriage is the result purely of compulsion, fear, or violence, the material element to its validity is wanting, and it is therefore void. A marriage thus procured may be treated as null in every court in which its validity is drawn in question. 1 This doctrine, at one period, was a matter of contro- versy among the common law lawyers, 2 but it is now too firmly established upon authority to admit of serious question. 22. Fraud. — The law with reference to fraud, as affecting the marital contract, is in a condition of perplexing uncertainty. 3 Chan- cellor Kent pronounces marriages procured by fraud void ah initio, and places them in the same category with marriages induced by force. 4 Judge Reeve, in discussing the question, makes use of the following emphatic language: "A man, by the foulest fraud, gets into possession of the property of his neighbor. A contract thus basely obtained, is not only void, but in many instances the obtain- ing of it is a felony. The common sense of mankind must revolt at the idea, that when a man, by the same abominable fraud, obtained the person of an amiable woman, and her property, that the law should protect such contract, and give it the same efficacy as if fairly obtained. The truth is, that a contract which is obtained by fraud, is, in point of law, no contract. The fraud blots out of existence whatever semblance of a contract there might have been. A mar- riage procured without a contract can never be deemed valid. There is no more reason for sanctioning a marriage procured by fraud than one procured by force and violence. The consent is as totally want- ing, in view of the law, in the' former as in the latter case. The true point of light in which this ought to be viewed, I apprehend, is, that the marriage was void ah initio; but it is necessary to have a divorce Ward v. Duloney, 23 Missis. 410 ; Powell v. Powell, 27 Missis. 783 ; Clement v. Mat- tison, 3 Rich. (S. C.) 93; Pettitt v. Pettitt, 4 Humph. 191-3: Terry v. Buffington, 11 Geo. 337. The subject is also discussed at' length by Mr. Bishop ; Bishop, Mar. and Div. ch. 9. i Rolle's Abr. Bar. and Feme, ( A. ) pi. 5 ; 4 Vin. Abr. p. 35, pi. 5 ; 1 Wood. Lect. 253 ; Shelf. Mar. and Div. 213 ; 2 Kent, 76, 77 ; Bishop, Mar. and Div. §§119-21; Park, Dow. 16; Amer. Jur. No. 39, p. 29; 2 Greenl. Ev. § 464; 2 Hagg. Con. R. 104, 246; Reeve's Dom. Rel. 41, 201. 2 See note to pi. 5, p. 35, 4 Vin. Abr. tit. Bar. and Feme ; Reeve's Dom. Rel. 201. 8 Bishop, Mar. and Div. \ 98, u,. * 2 Com. 76; Accord. Ferlat v. Gogin, 1 Hopk. 478 ; Perry v. Perry, 2 Paige, 501. CH. VII.] MARRIAGES VOID IN LAW. 121 by the court, since the marriage has been celebrated, that all con- cerned may be apprised that such marriage has no effect." 1 23. A recent writer, while noticing the uncertainty with which the subject is surrounded, and the conflicting opinions and observations in regard to it to be found in the books, nevertheless expresses his concurrence in the conclusion of Chancellor Kent and Judge Reeve, and gives it as his clear conviction that the result of the authorities is against the validity of marriages procured by fraud. 2 In some cases, no doubt, the application of this principle would be recom- mended by reason and strong natural justice. But it is exceedingly difficult to determine what elements of fraud should entitle the in- jured party to treat the marriage as void ah initio, and what should furnish ground for its dissolution merely. 24. It seems clear that fraudulent practices by either of the-parties with reference to the character, fortune, or health of such party, do not render the marriage void. 3 So it is said a marriage which has been brought about by conspiracy is not "for that reason void, if neither of the parties participated in the conspiracy. 4 It has been decided, also, that a marriage entered into for the purpose of injuriously affecting third persons in their property interests, is not void. As where a widow woman, having an interest in property determinable with her widowhood, married an intemperate man of no means, for the pur- pose of terminating her interest, and causing the estate to be imme- diately vested in her children, the object being to defeat a levy made at the instance of her creditors upon her interest in the estate, it was held that the marriage was nevertheless valid, although she re- fused to cohabit with the man she had married, and in fact never intended to cohabit with him. 5 It is likewise held that a false repre- sentation by a woman that she is a virgin, does not render void a marriage entered into upon the faith of such representation, even though it be shown that she has been a common prostitute. 6 And 1 Reeve's Dom. Rel. 206-7. See 2 Greenl. Ev. Fitzh. N. B. 149, L. > 2 Bac. Ab.- 358 et seq. 4 Ibid. See, also, to the same effect, 1 Koper on Husb. and Wife, 341. CH. VIII.] MARRIAGES VOIDABLE IN LAW. 135 hundred years old, or that the hushand at his death was hut four or seven years old, so as she had no possibility to have issue by him, yet seeing the law saith that if the wife be above the age of nine years at the death of her husband, she shall be endowed, and that women in ancient times have had children at that age whereunto no woman doth now attain, the law can not judge that impossible, which by nature was possible. And in my time a woman above threescore years old hath had a child, and ided non definitur in injure. And for the husband being of such tender years, he hath habitum, though he hath not potentiam at that time, and therefore his wife shall be endowed." 1 13. In 3 Dyer, 368, b., the following case is reported : A woman of full age contracted matrimony per verba de prsesenti with a young man within the age of twelve years, and the marriage was solemnized in the face of the church. The married couple afterwards occupied the same bed together, but the husband died before arriving at the age of consent. Upon a claim for dower by the widow, she was met with a plea of ne unques accouple, and the question was propounded whether the ordinary ought to certify in favor of the legality of the marriage. The doctors to whom the question was referred, returned the following answer : " We are all of opinion, in this case, that she is to be accepted and taken for a lawful wife, and to be accoupled in lawful matrimony ; and that the ordinary ought to so certify it, as the case is put touching dower ; although otherwise they are sponsa- lia defuturo, yet in a cause of dower they shall be extended to be true matrimony ratione privilegii." Accordingly judgment was given in behalf of the demandant. 2 14. There is not an entire concurrence in the opinion expressed by Lord Coke as to the right of the wife to dower where the husband dies under the age of seven .years. It is laid down by some authors that if either party to a marriage- is below that age, it is a mere nul- lity. 3 And it is maintained with much force that if we receive at all 1 Co. Litt. 40, a. and b.; see, also, 1 Roll. Abr. 675, pi. 10; Doct. and Stud., Dial. 1, chap. 7; 2P, Wms. 704 ; Leigh and Hanmer's case, 1 Leon. 52, 54. 2 See pp. 305, 313 of the same volume, showing a controversy between the tempo- ral and ecclesiastical courts respecting the form in which the certificate should be returned by the bishop. » 2 Burn's Ec. Law, 434 ; Swinb. on Spousals, 20, 23 ; Chitty's Notes to 1 Bl. Com. p. 436, note 11 ; Bishop, Mar. and Div. \\ 194, 197. See, also, Bro. Dow. pi. 88, where it is said that if the feme is of the age of nine years, and the baron is not of seven years, she shall not have dower. Contra, if he is of seven years, at the time of his death ; also, 13 Co. 20, Menvil's case. 136 THE LAW OF DOWER. [CH. VIII. the inability of boys and girls below seven years to enter into even an imperfect marriage, the result must follow that, while one of the parties is below seven, the marriage is completely null, whatever be the age of the other. 1 15. We have quoted very freely from the old books such portions as have a direct bearing upon the subject now under consideration. Although there is some conflict of opinion as to the right of the wife to dower where either party is under the age of seven years at the time the marriage is contracted, there appears to be no question but that, by the common law, if the parties reach that age, and the wife live to the age of nine years, she is entitled to dower, although the husband die within the age of consent, and while the marriage, therefore, in the language of Lord Coke, is yet "imper- fect and inchoate." How far this rule is to be considered as form- ing a part of the law' of marriage in the United States, is a very dif- ficult question to determine. Chancellor Kent, relying entirely upon the old common law authors above referred to, says that dower " belongs to a marriage within the age of consent, though the hus- band dies within that age ;" 2 but it is believed there is not to be found in the whole range of American Reports a single adjudicated case authoritatively determining this question. It is very rarely indeed that a contract of marriage is entered into, in this country, by per- sons within the common law age of consent ; and it would seem en- tirely safe to say that a female child of the tender age of nine years or under, was never yet offered nor taken in marriage in any part of the United States. A case is reported in New York, where a man contracted marriage with a girl under the age of twelve years ; but she immediately declared her ignorance of the nature and conse- quences of the ceremony, and repudiated the connection, and upon a bill filed by her next friend, the Court of Chancery ordered her to be placed under the protection of the court as a ward, and prohibited the man from all intercourse or correspondence with her. 3 16. It will be perceived that the solution of this question does not depend so much upon the point, whether a change by statute in the age of consent amounts to an abrogation of the common law in that particular, as upon the further question, whether the rule which in- vests with a right of dower the wife of a marriage entered into before » Bishop, Mar. and Div. g 197. 2 4 Com. 36. 3 Aymar v. Raff, 3 John. Ch. 49. CH. VIII.] MARRIAGES VOIDABLE IN LAW. 137 the parties are by law competent to contract matrimony, and not- withstanding the husband dies before reaching the required age, forms a part of the common law of this country. By the common law of England, as we have seen, the age of consent for males is established at fourteen years, and for females at twelve years ; and until they arrive at those ages respectively, they are considered absolutely incapable of contracting a perfect marriage. Yet if they actually enter into a marriage contract, the right to dower attaches, even though the husband die before attaining the age when, in law, he is competent to make the contract perfect and complete. So far as this doctrine is concerned, it is immaterial at'what time the age of consent may be fixed by law. The right of dower is conferred as well by a marriage entered into before as after that period, and as well where the husband lives to the required age to affirm it as where he dies before it is reached. Yet there is an obvious propriety and justice in the rule, notwithstanding its anomalous character, and it may admit of serious question whether any attempt at its material modification, either by legislative or judicial authority, would not be productive of more harm than good. For example, in a number of States the age of consent is fixed at eighteen for males and fourteen ibr females. Suppose a marriage, regular in all respects, be entered into in good faith, by a young man in his eighteenth year, with a female of the legal age ; that they assume all the duties and respon- sibilities of the marital relation, and cohabit as husband and wife, down to the period of the death of the husband, which occurs shortly before he becomes eighteen. Shall it be said that here was no mar- riage, and that the wife is not entitled to dower? And if this ques- tion be answered in the negative, where, in the absence of any stat- utory regulation upon the subject, and unless the rule of the common law be adopted, shall the line be drawn which is to distinguish — with respect to marriages contracted within the age of consent, and where the husband dies before arriving at that age — between marriages which confer upon the wife the right to dower, and those which do not ? Some rule must be adopted and adhered to, and as that of the com- mon law has the merit of being long established, well known, and understood, and not unreasonable in itself, there would seem to be no good reason for rejecting it, and substituting a new and perhaps uncertain one in its stead. The case decided in Iowa, 1 before referred 1 Goodwin v. Thompson, 2 Greene's (Iowa) Rep. 329 ; ante, \ 9. 138 THE LAW OF DOWER. [CH. VIII. to, proceeds upon the ground that the common law upon this subject is, in all respects, in full force in that State; and while the Ohio case 1 maintains that a change by statute in the age of consent abro- gates the common law rule, in so far as to substitute the age fixed by statute for that established by the common law, it by no means is to be understood as denying to a marriage entered into within the statutory age, the right of dower, where the husband has died before arriving at that age without having done any act in disaffirmance of the contract, or manifested any disposition to deprive the woman he had sworn to cherish and protect, of that provision humanely intended by the law to furnish to her and her children sustenance and support after his death. 2 17. The case of Bourne and Wife v. Simpson 3 ,bears, though some- what remotely, upon this question. In that case certain parties had intermarried while they were both minors, the wife being about fifteen. She was possessed of property valued at $7000, the hus- band of property estimated at $60,000. During the coverture he was seized in fee simple of a tract of land which was afterwards, and during the coverture, regularly sold and conveyed under execution issued against him. The wife made no relinquishment to the pur- chaser of her dower in these lands. Subsequently a separation took place, and in 1840 proceedings for divorce and alimony were insti- tuted by the wife, she then being about eighteen years of age, pend- ing which, by consent of parties given in court, a decree was rendered for alimony, divesting the husband of all claim and interest, legal and equitable, which he might have by virtue of the marriage, in the real and personal estate of the father of the petitioner, and of a brother who had died without issue. The decree also gave her cer- tain personal property, including such articles as she then had in possession. It was "further decreed and ordered, by consent of the said Margaret in open court, that the right, interests and property by the decree vested in her is accepted and received by her in lieu and satisfaction of all claims which she may have for dower, pro- vision in alimony against her husband, or out of his estate of any kind whatever." The bill was continued so far as it prayed a divorce. With one exception, she received and used all the property mentioned i Shafher v. The State, 20 Ohio Eep. 1 ; ante, \ 10. 2 See Parton v. Hervey, 1 Gray, 119. 3 Bourne and Wife v. Simpson, 9 B. Mon. (Ky.) Rep. 454. CH. VIII.] MARRIAGES VOIDABLE IN LAW. 139 in the decree. Before she reached full age, the husband filed his bill for divorce, which was granted, and the wife was afterwards twice married. The first husband having deceased, the wife and her then husband commenced a suit for her dower in the lands of the former, sold on execution during the coverture, as before mentioned, and in support 6f this claim it was urged — 1. That the decree of divorce could not in any way impair the right to dower ; 2. That any consent she might have given to the decree entered in the proceeding insti- tuted by her for divorce and alimony could not bind her, for two reasons : First, because she was an infant at the time ; and secondly, because no agreement after marriage, made with the husband, can have any effect to bar or defeat the right to dower. The court de- cided against the claim, holding that the provision made by the decree for the wife was in lieu of dower ; that such a decree against an infant feme covert, though rendered with her consent, was not legal, but subject to reversal ; yet that it was not void, and so long as it stood unreversed was binding upon her. It was also held that the facts and circumstances of the case showed that she had acquiesced in the decree after she became of age. Impotence. » 18. Impotence is defined by Mr. Shelford to "consist in the inca- pacity for copulation, or in the impossibility of accomplishing the act of procreation." 1 The definition given by Fraser is substantially the same. 2 Mr. Bishop regards the following as a better definition : " Impotence is such an incurable incapacity as admits of neither copu- lation nor procreation." 3 It is not necessary, however, to enter upon the details of this subject, inasmuch as it is admitted on all hands that impotence does not render a marriage void, but voidable only, and consequently, unless sentence is passed during the lifetime of both the parties, the marriage, notwithstanding this impediment, is good. 4 i Shelf. Mar. and Div. 202. * Fras. Dom. Rel. 53. * Bishop, Mar. and Div. \ 228. * Ibid. \ 260; Poynter, Mar. and Div. 123; Elliott v. Gurr, 2 Phillim. 16, 19; 1 Eng. Ec. 166-8; Sneed v. Ewing, 5 J-. J. Marsh. (Ky.) 460. See, as to voidable marriages, ante, eh. 7, \\ 1, 2, 4. Upon the subject of impotence generally, see Bishop, Mar. and Div. ch. 14; Shelf. Mar. and Div. 201 et seg., and authorities there cited. 140 THE LAW OF DOWER. [CH. VIII. Effect of a decree annulling a voidable marriage. 19. Whenever a marriage, by reason of any pre-existing impedi- ment, is regarded as voidable by the law, a sentence annulling the marriage for such cause makes it void ah initio, and consequently defeats all claim to dower founded thereon. 1 Impotence is a disabil- ity of this character, and although it is mentioned in the statutes of most of the States as a ground of divorce, and it is not declared whether the decree shall operate to annul the marriage as from the beginning, or only as from the date of its rendition, it seems clear that upon principle it comes within the rule applicable to other void- able marriages. 2 The doctrine is the same where fraud is made a ground of divorce. It should be remembered, however, that the de- cree, in order to have this effect, must be founded upon one of the causes which render a marriage voidable ; for if a divorce be granted for matter arising subsequent to the marriage contract, that does not render the marriage void ah initio, but dissolves it from the date- of the decree only, although there may have been good cause, by reason of some pre-existing disability, to annul the marriage as from the beginning. 3 Foreign marriages. 20. It is a general principle of international law, that marriages celebrated in a foreign country or state, according to the laws of such country or state, shall be held and treated as good and legal marriages everywhere. 4 It is equally well settled as a general propo- 1 Park, Dow. 19; Kenn's case, 7 Co. 140, 43, b.; Boll. Abr. tit. Dow. (R.) pi. 1-5; 9 Vin. Abr. 252, tit. Dow. (R.) pi. 1-5; Co. Litt, 32, a., 33, b.; Jenk. 44; Shelf. Mar. and Div. 483-4; 1 Bl. Com. 434; Bishop, Mar. and Div. gg 46, 53-59, 235 ; Aughtie v. Aughtie, 1 Phill. 201 ; Perry v. Perry, 2 Paige, 501. 2 Bishop, Mar. and Div. White v. White, 2 Met. (Ky.) 185 ; Trustees v. Gray, 1 Litt. 149. See Dudley v. Grayson, 6 Mon. 260. * White v. White, 2 Met. (Ky.) 185. 5 1 Stant. Rev. 239, Art. 3, g 1. 154 THE LAW OP DOWER. [CH. IX. purposes of any business, trade, or manufacture, for a term not ex- ceeding twenty-one years ; and he shall have the like rights, reme- dies, and exemptions touching such property, as if he were a citizen of the United States. 1 19. Kansas. — By the constitution of Kansas No distinction shall ever be made between citizens and aliens in reference to the purchase, enjoyment, or descent of property. 2 20. Louisiana. — In this State the common law disability as to aliens is substantially removed. They may inherit real estate, and transmit it ah intestato. 3 21. Massachusetts. — The early Massachusetts cases fully recog- nize the common law disability of alienage. In Sewall v. Lee 4 it was held that neither the widow of an alien nor the alien widow of a citizen could be endowed of her husband's lands. 6 But by degrees this disability has been completely removed. The act of 1812 gave dower to the alien widow of a citizen of the United States, saving, however, the rights of purchasers in lands conveyed before the pas- sage of the act. 6 The revised statutes of 1836 provided that "the alienage of any woman shall not bar her right of dower excepting as to lands conveyed by her husband, or taken from him by execution before the twenty-third day of February, in the year one thousand eight hundred and thirteen." 7 The enactment now in force is as follows : — Aliens may take, hold, transmit, and convey real estate ; and no title to real estate shall be invalid on account of the alienage of any former owner, but nothing contained in this section shall defeat the title to any real estate hereto- fore released or conveyed by the commonwealth, or by authority thereof. 8 22. Maine. — By the revised statutes of 1857 An alien may take, hold, convey, and devise, real- estate or any interest 1 1 Stant. Ky. Stat. p. 239, Art. 8, \\ 2-4. 2 Const. Kan. 1859, Bill of Rights, \ 17. 3 Christy's Dig. tit. Alien ; Phillips v. Rogers, 5 Martin's La. Rep. 700 ; Duke of Richmond v. Miln, 17 Louis. 312; 2 Kent, 54, note, and 70. * Sewall v, Lee, 9 Mass. 363. 6 See, also, Sheaffe v. O'Neil, 1 Mass. 256 ; Fox v. Southack, 12 Mass. 143 ; Sean- Ian v. Wright, 13 Pick. 523 ; Slater v. Nason, 15 Pick. 345 ; Foss v. Crisp, 20 Pick. 121 ; Piper v. Richardson, 9 Met. 155. s 2 Mass. Laws, p. 324; Acts of 1812, ch. 93, \\ 1, 2. ' Rev. Stat. 1836, p. 411, ch. 60, \ 14. s Stat. 1852, ch. 29; Gen. Stat. Mass. (I860,) p. 473, \ 38. CH. IX.] ALIENAGE AS AFFECTING DOWER. 155 therein. All conveyances and devises of such estate or interest, already made by or to an alien, are confirmed and made valid. 1 The act regulating dower contains the following provision : — The widow of a citizen of the United States who was an alien when she mar- ried him shall be entitled to dower in her husband's estate which was not con- veyed by him, or taken from him by execution prior to the twenty-third day of February, eighteen hundred and thirteen. 2 23. Maryland. — The rule of the common law, formerly prevailing in Maryland, 3 , is now considerably modified by statute. By the act of 1813, alien females intermarried with citizens of the United States, and residing therein, became entitled to dower. 4 It was held, how- ever, that this act did not apply to alien women who had never resided in the United States during their coverture, but was limited to resident aliens only. 5 By the present statute, aliens, actual resi- dents of the State, may take and hold lands acquired by purchase, or to which they would, if citizens, be entitled by descent, and may sell and dispose of the same ; provided, that if any male alien acquires any interest in real estate, he shall, within one year thereafter, de- clare his intention of becoming a citizen according to the laws of the United States, and shall also, within twelve months after his being capable of becoming a citizen, naturalize himself agreeably to said laws. If any male alien shall die within one year after acquiring any real estate without making such declaration, or having made the declaration, if he die within the term prescribed for his becoming a citizen, and without having disposed of his real estate, then it shall descend to his heirs as if he had been a citizen at the time of his death; provided, that such heirs, being male aliens, shall comply with the foregoing provisions. If any alien makes sale of any real estate before becoming naturalized, and after the sale refuses or neglects to become naturalized, the sale shall nevertheless be valid. The heirs of any alien may hold the real estate of such alien in the i Rev. Stat. 1857, p. 449, ch. 73, \ 2 ; Laws 1856, ch. 198. 2 Rev. Stat. 1857, p. 605, ch. 103, . Forgey, 1 Cow. 89; ante, \ 29. « Rev. Stat. 1857, p. 351, ch. 151, \ 21. CH. IX.] . ALIENAGE AS AFFECTING DOWER. 171 resident in the State, (alien enemies, fugitives from justice, and per- sons banished from either of the United States excepted,) on taking an oath of allegiance, were enabled to purchase and hold real prop- erty within the State. 1 By the act of 1807, aliens who had declared their intention to become citizens of the United States, were per- mitted to take, hold, and convey lands, and titles derived from aliens were confirmed. Persons holding property under this act were per- mitted to convey or devise the same to their children or grandchil- dren ; and if not conveyed or devised, it was to descend according to the law regulating descents ; provided, however, that the children, grandchildren, or persons entitled to take by descent, should become residents in the State within twelve months after the date of the con- veyance, or the decease of the testator or intestate^ and also become citizens within as short a period as was allowed under existing laws. 2 A later act provides that when any person shall die intestate, leaving no lineal descendants, but leaving a widow, and a father or mother, and brothers or sisters of the whole blood, the estate real and per- sonal of such intestate shall go, one moiety to the widow, and the o.ther moiety, in equal proportions, to the brothers and sisters of the whole blood, and the father ; or, if he be dead, the mother to take his share. 3 The rule of the common law is still further modified by the act of 1856, which is as follows : — If any citizen of the United States shall die seized, possessed of, or interested in any land or real property situated and being within this State, and leave a widow born without the limits of the United States, and who has not been nat- uralized, such widow shall be entitled to all the same rights, interest and estate in and to such land and real property, and be possessed of the same powers, privileges, and capacities to hold, enjoy, convey, and transmit the same as if she were naturalized. 4 1 1 Brev. 236. See McClenaghan v. McClenaghan, 1 Strob. Eq. 295, and Labatut v. Scmidt, 1 Speer's S. C. Eq. 421, giving a construction to this act. 2 Stat. S. C. vol. v. p. 546, \\ 1, 2; see Fox v. Husman, 7 Rich. 165, and Keenan v. Keenan, Ibid. 345, giving a construction to the acts of 1807, 1826, and 1828, 6 Stat. S. C. 284, 362 ; see, also, Vaux v. Nesbit, 1 McCord's S. C. Ch. 352, 374, hold- ing that an alien was formerly incompetent to transmit lands by descent; S. P., Ennas v. Franklin, 2 Brev. 398. » Acts of 1851, p. 80. 4 Acts of 1856, p. 585. For further decisions under prior laws, see Haleyhuton v. Kershaw, 3 Desaus. 106 ; Sebben v. Trezevant, 3 Desaus. 213 ; Clifton v. Haig, 4 Desaus. 330; Scott v. Cohen, 2 Nott & McCord, 293; McDaniel v. Richards, 1 McCord, 187; Escheator u. Smith, 4 McCord, 452; Meeks v. Richbourg, 1 Rep. Con. Court, 411 ; Laurens v. Jenney, 1 Speer, 356; McCaw v. Galbraith, 7 Rich. 74; Davis v. Hall, 1 N. & M. 292 ; Richards v. McDaniel, 2 Rep. Con. Court, 18. 172 THE LAW OF DOWER. [CH. IX. 46. Tennessee. — The act of 1809 provided that in all cases where any person within the State should die intestate without issue, and possessed of any estate, real or personal, the said estate should de- scend to such person or persons who were next of kin to the dece- dent, and resident within the United States, to the perpetual exclu- sion of aliens who might be related to the decedent in a nearer de- gree. 1 This act was repealed by the statute of 1848. 2 The law now in force on the subject of alienage is as follows : — 1998. Any alien may take and hold real estate in this State by purchase, in- heritance, or in any other way which may be agreed upon by treaty between the United States and the country of which he is a citizen or subject. 1999. Any alien resident in this State who has legally declared his intention under the naturalization laws to become a citizen of the United States, may take and hold, dispose of,or transmit by descent, any real estate as a native citizen. 2000. An alien who is resident in the United States at the time of the death of an intestate, and has declared, or shall within twelve months thereafter de- clare his intention, according to the acts of Congress, to become a citizen, shall become capable of inheriting the estate of such intestate. 3 47. Texas. — Aliens may take and hold any property, real or per- sonal, in this State, by devise or descent, from any alien or citizen, in the same manner that citizens of the United States may take and hold real or personal estate by devise or descent within the country of such alien. Any alien, being a free white person, who shall be- come a resident of the State, and shall, in conformity with the natu- ralization laws of Congress, have declared his intention to become a citizen, has a right to acquire and hold real estate in the same man- ner as if he were a citizen of the United States. 4 48. Virginia. — Any alien friend, being a free white person, resi- dent within the State, on making oath before competent authority that he intends to continue to reside therein, may inherit, or pur- chase and hold real estate as if he were a citizen of the State. And he may convey or devise any real estate so held by him, and if he 1 Act of 1809, ch. 53, g 1. This act came under review in Starks v. Traynor, 11 Humph. 292 ; see, also, Williams v. Wilson, Mart. & Yerg. 248. 2 Act of 1848, ch. 165, \ 1. 3 Cude of Term, by Meigs & Cooper, (185§,) p. 407, part 2, tit. 1, ch. 2; see, also, Car. & Nich. Dig. (1836,) p. 87, ch. 36. 4 Act of Feb. 13th, 1854, ch. 70, gg 2, 3; Oldham & White's Dig. Laws Tex. p. 33, art. 4, 5; see Merle v. Andrews, 4 Texas, 200; Hardy v. De Leon, 5 Texas, 211; Cryer c Andrews, 11 Texas, 170 ; Lee v, Salinas, 15 Texas, 495 ; White v. Saba- riego, 23 Texas, 243 ; Wardrup v. Jones, Ibid. 489 ; Jones v. McMasters, 20 How. U. S. 8. CH. IX.] ALIENAGE AS AFFECTING DOWER. 1*73 die intestate it shall descend to his heirs, and any such alienee, de- visee or heir, whether a citizen or an alien, may take under such alienation, devise, or descent, provided he shall, if an alien, come or be in the State within five years thereafter, and before some court of record declare on oath that he intends to reside therein. Any alien having an interest in real estate, who becomes a citizen of the United States, or who sells or devises the same before an escheat is declared, or dies seized or possessed thereof before proceedings for an escheat are instituted, such person himself in the first case, and in the second the purchaser, lessee, heir, or devisee from him, if a citizen of the United States, may hold the same, discharged from all claim of the State by reason of such alienage. Any woman whose husband is a citizen of the United States, and any person whose father or mother, at the time of his birth, was a citizen thereof, may take and hold real or personal estate, by devise, purchase, or inherit- ance, notwithstanding he or she may have been born out of the United States. Any alien resident, the subject of a friendly State, may take and hold lands for the purpose of residence, or for the pur- pose of any business, trade, or manufacture, for a term not exceed- ing twenty-one years. And when by any treaty in force between the United States and any foreign country, a citizen or subject of such country is allowed to sell real property within the State, such citizen or subject may sell and convey the same, and receive the proceeds thereof, within the time prescribed by such treaty. 1 49. Vermont. — The constitution of Vermont contains the follow- ing provision : — Every person of good moral character who comes to settle in this State, hav- ing first taken an oath or affirmation of allegiance to the same, may purchase, or by other just means acquire, hold, and transfer land, or other real estate ; and after one year's residence shall be deemed a free denizen thereof, and enti- tled to all rights of a natural born subject of this State. 2 50. Wisconsin. — The constitution of Wisconsin declares that i Code, 1849, p. 498, ch. 115, \\ 1-6. See Robertson v. Miller, 1 Brock. 466: Hubbard v. Goodwin, 3 Leigh, 492 ; Stephens v. Swann, 9 Leigh, 404 ; Jackson v. Sanders, 2 Leigh, 109 ; Barzizas v. Hopkins, 2 Rand. 276 ; Marshall v. Conrad, 6 Call, 364. 2 Const. Verm. \ 39. An exception is annexed as to eligibility to certain State offices until after two years' residence. See, also, State v. Boston, C. & M. R. R. Co., 25 Verm. 433 ; Albany v. Derby,. 30 Verm. 718. 174 THE LAW OF DOWER. [CH. IX. No distinction shall ever be made by law between resident aliens and citi- zens, in reference to the possession, enjoyment, or descent of property. 1 It is provided by statute that aliens may take and hold lands by purchase, devise, or descent ; and may convey, mortgage, or devise the same ; and, if they die intestate, such lands shall descend in like manner as if they were citizens of the United States. 2 Alienage is no bar to dower ; and any woman residing out of the State is entitled to dower in lands lying within the State of which her husband died seized, in the same manner as if she and her husband had been resi- dents at the time of his decease. 3 51. District of Columbia. — In the District of Columbia an alien may take, hold, transmit and convey lands, in the same manner as if he were a citizen of the United States. 4 52. From the foregoing synopsis of the legislation and reported decisions of the different States on the subject of alienage, it will be seen that there is a marked difference in the several States with re- spect to the privileges conferred upon aliens, and the favor with which they are regarded. In a portion of the States the rule of the common law prevails with but little modification. In others its se- verity is more or less mitigated; while in others again it is entirely abrogated. The privileges thus conferred by State authority are strictly local, and necessarily territorial in their nature. Conse- quently, if the steps required by the naturalization laws of Congress have not been complied with, so as to give to the alien party the rights and privileges of a citizen, he is remitted, so far as the capa- city or privilege to acquire, enjoy, or dispose of real estate is con- cerned, to the local laws and regulations of the particular State where the lands may be situate. 5 It is hardly necessary to add that the right to the estate of dower is governed by the same general rule. Naturalization in the United States. 53. The Constitution of the United States confers upon Congress power "to establish a uniform rule of naturalization," 6 and it seems i Const. Wis. art. i. \ 15. » Rev. Stat. 1849, p. 337, \ 35; Rev. Stat. 1858, p. 549, g 35. • Rev. Stat. 1849, p. 335, g 21 ; Rev. Stat. 1858, p. 548, g 21. * Rev. Code Dist. Col. (1857,) p. 180, g 2. 5 Corfield v. Coryell, 4 Wash. C. C. Rep. 371 ; 2 Kent, 70, 71. 6 Art. 1, g 8, sub. 5. CH. IX.] ALIENAGE AS AFFECTING DOWER. 175 that this power is possessed exclusively by that body. 1 Under the authority thus conferred a number of acts have been passed, pre- scribing the conditions, pointing out the manner, and declaring the effect of naturalization. 2 Any alien, being a free white person, who has resided in the United States for the prescribed period, and com- plied with all the conditions of the law to perfect his naturalization, is thereby "admitted to become a citizen of the United States, or any of them." 3 Children under the age of twenty-one years, of per- sons naturalized, if dwelling in the United States at the time of the naturalization of their parents, are considered as citizens. 4 In case any alien has taken the preliminary oath required by the act of 1802, and pursued the directions of the second section of the same act, 5 and dies before he is actually naturalized, the widow and children of such alien shall be considered as citizens of the United States, and shall be entitled to all rights and privileges as such upon taking the oaths prescribed by law. 6 A married woman may avail herself of the benefits of this legislation, and become a naturalized citizen. 7 And it has been held that the consent and concurrence of her hus- band are not necessary to the validity of the act. 8 Naturalization of the husband does not, of itself, confer the rights of citizenship upon an alien wife. 9 But by a recent act of Congress the rights and privileges of alien feme coverts have been extended, and it is pro- vided that any woman who might lawfully be naturalized under exist- ing laws, and who is or shall be married to a citizen of the United 1 See Chirac v. Chirac, 2 Wheat. 259 ; United States v. Villato, 2 Dall. 372 ; Thur- low v. Massachusetts, 5 How. 585 ; Smith v. Turner, 7 Ibid. 556 ; Golden v. Prince, 3 Wash. C. C. Rep. 314. 2 Act of 14th April, 1802, 2 Stat. 153; Act of March 26, 1804, 2 Stat. 292; Act of March 3, 1813, 2 Stat. 811; Act of March 22, 1816, 3 Stat. 259; Act of May 26, 1824, 4 Stat. 69 ; Act of May 24, 1828, 4 Stat. 310 ; Brightly's Dig. 33-36 ; 2 Kent, 51-54. » Act of April 14, 1802, g 1. * Ibid. \ 4. 6 This section was repealed by the act of May 24, 1828, \ 1 ; 4 Stat. 310 ; see Brightly's Dig. 34, note. It prescribed regulations for the registry of aliens. « Act of March 26, 1804, \ 2. See Foss v. Crisp, 20 Pick. 121, and White v. White, 2 Met. (Ky.) 185, as to the effect of the death of the husband or ancestor before taking the final oath, and the requirement of the law in such cases. » Ex parte Marianne Pic, 1 Cr. C. C. 372. See Brown v. Shilling, 9 Maryl. 74 ; McDaniel v. Richards, 1 McCord, 187. » Priest v. Cummings, 16 Wend. 617 ; S. C. 20 Wend. 338. s White v. White, 2 Met. (Ky.) 185 ; see Wightman v. Laborde, 1 Spear, (S. C.) 525. 176 THE LAW OF DOWER. [CH. IX. States, shall be deemed and taken to be a citizen. 1 This law is sub- stantially a re-enactment of the 7 and 8 Victoria, chap. 66, and is very important in its bearing upon the rights of alien women, for its effect appears to be to invest the alien wife of a citizen, whether native born or naturalized, with all the rights of a native-born woman, and indeed to make her marriage with a citizen, ipso facto, work her naturalization. It remains a question, however, whether the act ex- tends to a case where the husband and wife are both aliens, and are married, either abroad or in this country, before the naturalization of the husband. A strict construction of the act would seem to require that the husband, at the time of the marriage, should be a citizen, but whether native born or by naturalization would not per- haps be material. Naturalization in the United States prospective only. 54. Reference was made in the preceding pages to that feature of the English law which gives to the act of naturalization a retroactive effect, and it was incidentally stated that in the United States this doctrine was not recognized. 2 It remains for us to notice, in this connection, some of the decisions of the American courts with regard to this question. 55. The subject underwent very full and thorough discussion in the case of Priest v. Cummings; 3 and the opinion of the court upon the question is replete with learning, and exhibits with clearness and precision the law bearing upon it. "Assuming," says the judge de- livering the opinion, "the naturalization in October, 1829, to have been valid, it is contended that it can not operate retrospectively, so as to attach the right of dower to premises which were previously aliened by the husband in 1802. The act of Congress affords no great light to aid us in determining this point of the case ; it merely declares that upon complying with its provisions the applicant shall 'become a citizen of the United States,] leaving the effect or measure of capacity thus conferred to the judgment of the law. Lord Coke says, that an alien naturalized by act of Parliament is to 'all intents and purposes a natural born subject.' 1 Co. Litt. 129, a. It is also said, that naturalization is an adoption of one to be entitled to what, i Act of Feb. 10, 1855, | 2 ; Brigntly's Dig. 132. 2 Ante, \ 4. 3 Priest v. Cummings, 16 Wend. 617; S. C. 20 Wend. 338. CH. IX.] ALIENAGE AS AFFECTING DOWER. 177 by birth an Englishman may claim, and takes effect from the birth of the party, but denization from the date of the patent. Viner's Abr. tit. Alien, letter D. Naturalization in Ireland has no effect in England, because it is a fiction of law, and can affect only those con- senting to the fiction. When the law makers have power, it has the same effect as a man's birth there. Id. pi. 7, — 1 Bac. Abr. tit. Aliens, 130. The position in 1 Black. Comm. 374, is, that naturalization can not be performed, but by act of Parliament ; for by this, an alien is put in exactly the same state as if he had been born in the king's legiance. From these and other authorities that might be referred to, it sufficiently appears that the uninheritable blood of the alien be- comes purified, and made inheritable by naturalization; and in some respects reaches back to his birth. All previous disabilities, as to taking or transmitting real estate, are at once removed, and any de- fective or forfeitable title, by reason of alienism, becomes perfect and indefeasible. 1 John. Cas. 398 ; 7 Wend. 335. Hence children born before naturalization, will inherit the same as those born after, though it is otherwise in case of denization, the effect of which is simply prospective. Lands purchased before may be held and transmitted the same as those acquired afterwards. But the difficulty in sustain- ing the claim of the plaintiff upon the retroactive operation of hey naturalization, and consequent investment of her capacity to take her dower during the whole period of her coverture, is, that, at the time the husband executed the mortgage, and thereby parted with his title, as in effect he did, as there has since been a foreclosure under it, she was a disabled person in law by reason of alienism, and had no capacity, independent of the enabling statutes, to take even an inchoate right of dower. It may be said there was no defective or forfeitable right or title existing, to be forfeited, because there was no right at all vested in her that could attach at the time of the alienation; and therefore, it must attach, if at all, for the first time when the estate is in the hands of innocent third persons. The law which nihil facit frustra will give no estate which it does not enable the donee to keep ; and, therefore, an alien can take nothing either by descent, curtesy or dower. If he purchase, he may be said to acquire an estate till office found; but he takes nothing by act of law. 7 Cowen, 50; 5 Id. 52; 1 Vent. 417; Park on Dower, 228. The only case that has been referred to, or that I have been able to find after a pretty full examination, where the widow is even said to be entitled to dower out of an estate aliened by the husband, during VOL. I. 12 178 THE LAW OF DOWEK. [CH. IX. the existence of a natural disability to take dower, and consequently before any right attached to the land, is the case of a subsequent naturalization of the wife by act of Parliament. This exception to the general rule, if it exist at all, will be found, I apprehend, to de- pend upon the peculiar language of the act, together with the omnip- otent power admitted by the courts to belong to the statutes of that body. Aliens, in England, are naturalized by private acts of Par- liament, which are not published among the general laws. I have not been able to find one of those acts so as to be able to examine the phraseology. It is said by Lord Coke, that if a man take an alien to wife, and afterwards aliens his lands, and after she is made a denizen the husband die, she shall not be endowed, because her capacity and possibility to be endowed come by denization. ' Other- wise,' he says, 'it is, if she were naturalized by act of Parliament.' Co. Litt. 33, a. Viner and Cruise lay down the same position. The latter author remarks, that, if an alien be naturalized by act of Par- liament, she then becomes entitled to dower out of all lands whereof her husband was seized during coverture. See, also, 1 Roll. Abr. 675, Park on Dower, 229. Where the incipient right of dower once attaches, and the alienation takes place during its suspension or the existence of a temporary disability, which is subsequently removed before the death of the husband, there the right revives and exists in full force, in contemplation of law from its commencement. Several examples are stated and sanctioned by the court in Menvil's case, 13 Co. 23; such as an alienation before the wife is of an age to be dow- able, or during her elopement, or during the existence of an attaint of felony. In all these instances, it is said there is not any inca- pacity or disability in the person, but only a temporary bar until the proper age, reconcilement, or pardon ; that the wives were not in- capable by birth, but lawfully entitled to dower by the marriage and seizin; and that, therefore, where the impediment is removed, they shall be endowed. Hargrave's n. 202 ; Viner, tit. Dower, q. pi. 2 ; 2 Bac. Abr. tit. Dower, 359 ; 1 Cruise, 173. But this rule, it said, is not applicable to the case of an alien wife, who has become a denizen by letters patent, because at the time of the alienation of the hus- band, she was absolutely disabled by law from her birth, and the capacity and ability to take dower began with her denization. This distinction adds some weight to the remark before made in respect to the position of Lord Coke, as to the effect of naturalization, namely, that it depends upon no general principle, but exists as an CH. IX.J ALIENAGE AS AFFECTING DOWER. 179 exception, by reason of the particular wording, and force of the act of Parliament. The case of Fish v. Klein, 2 Merivale, 431, may be referred to as an authority for the remark. There K., an alien, had sold and conveyed certain premises, and an act of naturalization was procured to perfect the title in the grantee. The language of the act was 'that the said F. K. shall be, and is thereby from thence- forth naturalized,' &c. It was contended that it could not establish retrospectively an invalid title. The master of the rolls concurred in this view, and held that it did not operate to confirm the title in the grantee ; in other words, that it did not invest K. retrospectively with a capacity to hold and convey real estate. It is stated in a note to the case that the vendors were desirous of having retrospect- ive words introduced into the act, but that they found it was imprac- ticable to depart from the common form. The case at least shows, what might well be supposed without it, that the effect of an act of naturalization depends upon the language of it ; and that an express clause for this purpose is essential to its retroactive operation, in order to vest a disabled person with an antecedent interest in real estate." 56. In the Court of Errors, also, where the case was taken on error to the Supreme Court, elaborate opinions were delivered by Chancellor Walworth and Senator Verplanck, concurring with the Supreme Court in the conclusion to which it arrived as to the effect of naturalization under the laws of Congress, and devoting to the subject a very considerable share of attention. 1 The following ex- tract is from the opinion of the chancellor : " The effect of a stat- utory naturalization in England, in overreaching previous vested rights, depends upon the omnipotence which has been ascribed to an act of Parliament ; in which, at some of the earlier periods of English history, a due regard was not always paid to the rights of third parties who had not petitioned for the passing of the act. These private acts of naturalization are seldom found in the printed collection of English statutes ; but by reference to one which is published by Mr. Chitty as the common form of such acts, 2 Chit. Com. Law, App. 325, it will be seen that the nature and extent of the rights acquired under it are declared in the act itself, and that the language is very strong to show the intention of the law makers to give it a retrospective operation, not only as to inheritable blood, » Priest v. Cumminga, 20 Wend. 338. 180 THE LAW OF DOWER. [CH. IX. but also to place the person naturalized in the same situation, both actually and constructively, as if he had been a natural born citizen at the moment of his birth. To show that by the common law a mere parliamentary act of naturalization did not necessarily retro- spect, without reference to the terms of the act, it is only necessary to refer to the opinion of Lord Hale, in the great case of Colling- wood v. Pace, 1 Ventr. 419. He says : ' Touching the retrospect of a naturalization, and whether the eldest son, being an alien, natu- ralized after the death of the father, shall direct the descent to the youngest, depends upon the words of the naturalization, which being by act of Parliament, may by a strange retrospect direct it. But as the naturalization in the case in question is penned, it would not do it ; the naturalization hath only respect to what shall be hereafter.' I conclude, therefore, that the naturalization of the defendant in error had the same effect as to the rights of property as letters of denization had by the common law, and the same effect as to all other rights that an act of Parliament giving her all the rights of a natural born subject, and without any special provisions to give it a retrospective operation. She therefore had from that time the ca- pacity to take an estate in dower, of and in any lands of which the husband was then seized of an inheritable estate : to take lands by devise or descent from any person capable of conveying or transmit- ting lands in that manner to her : and to take any other interest in real estate by gift or otherwise to herself, and to sell, alienate, or bequeath the same, or transmit the same to such of her heirs as were capable of taking by descent, as fully as a natural born citizen might do, but not otherwise. Her naturalization, however, did not retro- spect so as to deprive the mortgagees of her husband, or those claim- ing under them, of any right or interest in his lands which they had acquired previous to her naturalization." 57. A portion of the opinion of Senator Verplanck, in the same case, possesses considerable value on account of the comparison which he institutes between the language of the naturalization acts of Con- gress and that employed in several of the special naturalization acts of England. "I can not agree with the chief justice," he says, " that ' the act of Congress affords no great light to aid us in de- termining this point in the case.' On the contrary, it strikes me for- cibly that the language of our acts of Congress on this subject, points out a strong distinction between the legal operation of the rights of citizenship acquired under them, and that of the naturalization con- CH. IX.J ALIENAGE AS AFFECTING DOWER. 181 ferred by a British act of Parliament. In the acts of Parliament the operative words are the same with those used in the books ; I believe in all cases, certainly in all the cases where I have been able to as- certain the facts — either the more general acts in the statutes at large, or those cited in the reports. It is enacted that the party shall be ' naturalized,' or ' shall be, deemed, adjudged and taken to be a natural bom subject,' as if bom within the kingdom. Thus in a statute, 33 Henry VIII., ' The children of Thomas Powers and others shall be reputed natural born subjects.' In the statute of 7 Anne, c. 5, 'All persons born out of the ligeance of her majesty who shall qualify themselves (&c. as therein provided) shall be deemed, adjudged and taken to be natural bom subjects of Ireland, to all intents, constructions and purposes, as if they had been born within the said kingdom.' So again, by 2 George III., 25, certain foreign officers and soldiers, who had served in America, are natu- ralized- in the same words, ' to be deemed and adjudged, as if they had been born within the realm.' These seem to be the uniform op- erative words ; and their legal effect, as stated by all the authorities, is, ' that an alien is put in exactly the same state as if he had been born in the king's dominions,' 2 Black. Com. 374; or, in the lan- guage of Lord Coke, ' is to all intents and purposes a natural born subject.' From the very words employed, then, (unless there be some restrictive condition added,) every such naturalization must relate back to the time of birth of the individual. The naturalized subject is, in the eye of the English law, one native born. The courts do not, and can not look behind the act of Parliament to prior disabilities. By the omnipotence of Parliament the naturalized alien is to all intents a subject from his birth." 58. In an early case, 1 it had been decided in New York, on the strength of the English authorities which have already been noticed, and apparently without much consideration of the subject, that nat- uralization in this country has a retroactive effect, and 'operates to confirm title to real estate granted to an alien before the date of the naturalization. And in Massachusetts, also, thirteen years after- wards, the general rule of the English common law that naturaliza- tion of an alien friend places him " upon the same ground as if born a citizen," was said by Chief Justice Parsons to be in force in the 1 Culverhouse v. Beach, 1 John. Cas. 399, decided in 1800. 182 THE LAW OF DOWER. [CH. IX. United States. 1 But the reasoning of the court in Priest v. Cum- mings, and the peculiarities in phraseology distinguishing the English acts of Parliament from the acts of Congress, pointed out by the judges, appear fully to sustain the conclusion arrived at in that case. Decisions in other States are in conformity with this view. In Vaux v. Nesbit 2 it is said that " the words of our statutes for naturalizing aliens are evidently prospective," and the point was so ruled by the chancellor. The cases of Wightman v. Laborde, 3 Keenan v. Keenan, 4 and White v. White, 5 are to the same effect. In Labatut v. Scmidt 6 the question was left undecided, but it is apparent that the inclina- tion of the court was in the same direction. It may be assumed, therefore, with some degree of confidence, that in the United States, naturalization has no retroactive effect, but in its operation is pro- spective only. 7 What persons can not become citizens. 59. The acts of Congress authorizing the naturalization of aliens limit the right to "free white persons," thus excluding from their operation Indians, the inhabitants of Africa and their descendants, 8 and perhaps the natives of Asia. 9 It has been judicially decided in several of the United States that Indians are not citizens, but dis- 1 Ainslie v. Martin, 9 Mass. R. 454, 460. 2 Vaux v. Nesbit, 1 MoCord's (S. C.) Ch. 352. a Wightman v. Laborde, 1 Spear, (S. C.) 525. 4 Keenan v. Keenan, 7 Rich. Law R. (S. C.) 345. 5 White v. White, 2 Met. (Ky.) 185. 6 Labatut v. Scmidt, 1 Speer's S. C. Eq. R. 421. 7 On the subject of naturalization generally, see the following additional authori- ties: Ex parte Newman, 2 Gallis. 11; Little's case, 2 Browne, 218; Anon. Peters' C. C. R. 457 ; Spratt v. Spratt, 4 Pet. 393 ; Ex parte Overington, 5 Binn. 371 ; Richards v. JScDaniel, 2 Nott & McCord, 351; Campbell v. Gordon, 6 Cranch, 176; McDaniel v. Richards, 1 McCord, 187 ; Starke v. Chesapeake Ins. Co., 7 Cranch, 420; Ritchie v. Putnam, 13 Wend. 524 ; Granstein's case, 1 Hill, 141 ; Charles v. Monson Man. Co., 17 Pick. 70; Towles' case, 5 Leigh, 743; Ex parte Paul, 7 Hill, 66; Banks v. Walker, 3 Barb. Ch. R. 438; Matter of Brownlee, 4 Eng. 191 ; Ex parte Smith, 8 Blackf. 395 ; State v. Penney, 5 Eng. 621 ; Brown v. Shilling, 9 Md. 74 ; West v. West, 8 Paige, 433. 8 See Dred Scott v. Sandford, 19 How. U. S. 393. 9 2 Kent, 72 ; see The United States v. Rogers, 4 How. V. S. 567. CH. IX.] ALIENAGE AS AFFECTING DOWER. 183 tinct tribes, living under the protection of the government. 1 The Attorney-General of the United States, in 1856, held that while the general statutes of naturalization do not apply to Indians, it was nevertheless clear that they may be naturalized by special act of Congress, or by treaty. 2 60. Questions not unfrequently arise respecting the proper mean- ing to be attached to the word "white," as used in the naturaliza- tion acts, and what shades and degrees of mixture of color disqualify an alien from application for the benefits of those acts. In Virginia, by the statute of 1785, every person who has one-fourth part or more of negro blood is deemed a mulatto. 3 The rule is the same in Kentucky, 4 Arkansas, 6 and Florida. 6 In Indiana a person possessed of one-eighth or more of negro blood is disqualified from marriage with a white person, and the marriage is void. 7 In South Carolina all persons tinged with negro blood are adjudged mulattoes, and it is further held that mulattoes are not white citizens within the mean- ing of the law. 8 It is said to be the rule in Louisiana, and in the code noir of France for her colonies, that if the admixture of African blood do not exceed the proportion of one-eighth, the person is deemed white, 9 and this was formerly regarded as the proper rule in South Carolina. 10 In North Carolina it is provided that " no free negro, free mulatto, or free person of mixed blood, descended from negro ancestors to the fourth generation inclusive, (though one an- cestor of each generation may have been a white person,) shall vote for members of the senate or house of commons." 11 In Tennessee "a negro, mulatto, Indian, or person of mixed blood, descended from negro or Indian ancestors, to the third generation inclusive, though 1 Goodell v. Jackson, 20 John. 693 ; Jackson u. Wood, 7 John. 290 ; Hastings v. Farmer, 4 Comst. 293; Dole v. Irish, 2 Barb. 639; The State v. Boss, 7 Yerger, 74; The State ». Managers of Elections, 1 Bailey, 215. 2 Opin. Atto.-Gen. vol. vii. p. 746. » 12 Hen. Stat, at Large, 184 ; see Code of Va. ch. 103, . Coxe, Ibid. 339. 2 Wilson v. Smith, 5 Yerg. 379; see Combs v. Young, 4 Yerg. 218. 3 Owen v. Hyde, 6 Yerg. 334. * R. I. Stat. (1840,) 2022; Public Laws of R. I. (1844,) p. 188, \ 2. 5 1 Hilliard, Real Prop. 2d ed. 141, 142, \ 12. CH. X.] THE PROPERTY SUBJECT TO DOWER. 203 Shares in corporations. 25. Shares in incorporated companies are generally considered personal property, and this without reference to the nature of the property held by them, or the business in which they may be engaged. At the present day when a company is incorporated, it is usual to provide, by express enactment, that the stock of such company shall be deemed personalty. But the absence of such provision would not, it is apprehended, materially affect tha question, for the weight of authority is decidedly in favor of the proposition that shares in cor- porations are to be held and treated as personal estate at common law. Hence, shares in the stock of an incorporated company are not, as a general rule, subject to dower. 26. But this question is not entirely free from difficulty. Cases are to be found in the reports which appear to conflict with the con- clusion above expressed. A distinction has also been taken between the case of lands vested in a joint-stock company as a corporation, and not in the individual shareholders of such company, and of lands vested in the shareholders, with a grant of the mere power of man- agement to the corporation. In the latter case the shares of the company have been held real estate. 27. The case of Drybutter v. Bartholomew, 1 decided in 1723, is one of the earliest cases bearing upon this question found in the reports. It involved the question as to the interest of the shareholders in the property of the New River Company, and whether that interest was personalty or realty. The company had its origin in the statutes of 3 James I., chapter 180, and 4 James I., chapter 12. The latter act enlarged, to some extent, the privileges created by the former. By virtue of these enactments, power was conferred on the mayor, com- monalty, and citizens of London, to supply the city with water. By the first act the mere right to cut alieno solo was given ; the property in the land was reserved to the owner. 2 The second act gave to the city liberty to erect a trunk or vault. These statutes created no stock, nor was any mention made in them of shares or shareholders. The city afterwards conveyed the right thus conferred upon them to Sir Hugh Middleton, who commenced the contemplated work, but died i Drybutter v. Bartholomew, 2 P. Wms. 127. 2 See New River Company v. Graves, 2 Vera. 431, where the act was so oonstrued. 204 THE LAW OF DOWER. [CH. X. before it was completed. The right subsequently became vested in a variety of persons, and the new proprietors procured for themselves an act of incorporation, and although no provision was made for the creation of shares under the original charter to the city, yet it ap- pears from the case of Drybutter v. Bartholomew above referred to, as well as Townsend v. Ash, 1 decided in 1745, that under the act of incorporation, shares in the company were actually created ; 2 and in both these cases such shares were held to be real estate. The cases are very briefly reported, and it seems to have been assumed without controversy that the shares bore the character thus ascribed to them. 28. It appears, however, that the form of the New River Compa- ny's act of incorporation, and of its charter, and of the original con- veyance to Sir Hugh Middleton, was applicable to real property only. The land was not vested in the corporation of London, but in the individuals. 3 The corporation was incidental to the purposes of management only, and was not seized of the land. This is as- sumed by the Lord Chancellor in Townsend v. Ash, 4 and he placed his decision in that case expressly upon the ground that the individ- ual corporators had the property, and the corporation only the man- agement of it. 5 These cases, therefore, though sometimes referred to as showing that stock in a water-works company is real estate, do not, when carefully considered, fairly support that position. They may be regarded as authority, to some extent, however, for the dis- tinction noted in a preceding section, 6 with reference to the nature of the interest of the shareholders in the corporate property where it is vested in them individually, and not in the body corporate, as is usually the case/ 29. In Buckeridge v. Ingram, 8 decided in 1795, shares in the navigation of the River Avon, under the statute of 10 Anne, were held to be real estate, and subject to dower, and the authority of this i Townsend v. Ash, 3 Atk. 336. 2 See Wordsworth on Joint-Stock Comp. (39 Law Lib.) 288, 289; Johns v, Johns, 1 Ohio St. Rep. 350, 351. 3 Per Lord Abinger in Bligh v. Brent, 2 You. & Coll. 288. 4 3 Atk. 337, 338; and see judgment of Alderson, B., in Bligh v. Brent, 2 You. & Coll. 295. 6 Per Park, B., in Bligh v. Brent; Wordsw. on Joint-Stock Comp. (39 Law Lib.) 289. « Sec. 26. 7 Accord. Swayne v. Fawkener, Show. P. C. 207 ; see, also, Lord Sandys v. Sib- thorpe, 2 Dick. 545 ; Lord Stafford v. Buckley, 2 Ves. Sr. 170, 182. 8 Buckeridge v. Ingram, 2 Ves. Jr. 652. CH. X.J THE PROPERTY SUBJECT TO BOWER. 205 case has since been recognized in several other cases. 1 By the statute of 10 Anne, the mayor, aldermen and common council of the City of Bath, their successors or assigns, or such persons as they should ap- point, were authorized to improve the navigation of the River Avon, and to charge tolls on persons and property transported thereon. By an agreement executed between the corporate authorities of the one part, and the Duke of Beaufort and several other persons on the other part, the duke and his associates undertook to do the work in consideration of being allowed to take the tolls. By the eleventh article of the agreement, it was provided that " no survivorship shall at any time take place between the said parties and undertakers ; but if any or either of them shall happen to die, the share or part of such so dying, shall descend and go to the heirs and assigns of the party or parties so dying." The master of the rolls held that the right to take the tolls was an incorporeal hereditament aris- ing out of realty, and therefore " a tenement." He observed : "I have no difficulty in saying that wherever a perpetual inheritance is granted which arises out of lands, or is in any way connected with, or, as it is emphatically expressed by Lord Coke, exercisable within it, is that sort of property the law denominates real." One import- ant feature in this case is sometimes overlooked. The company or association that succeeded to the rights and duties of the City of Bath, under the power of appointment contained in the original act, was not incorporated, 2 in which respect it differed from the New River Company, and the point decided really did not touch the question whether shares in the stock of a corporation are real or personal property. With regard to both these companies, it is re- marked by Mr. Wordsworth, that the property given to them was real property, which they were to manage for the good of all. They had no power of converting it into any other description of property, but they were to keep it, and make profit of it as real estate. And further, the shares were transferable to the shareholders and their 30. But the more recent English cases, while, perhaps, they do not disturb the authority of the older cases above noticed, in so far as they establish the doctrine that where lands are vested in the 1 Howse v. Chapman, 4 Ves. Jr. 542 ; Finch v. Squire, 10 Ves. Jr. 42 ; The King v. Bates, 3 Price, 357 ; The Earl of Portsmouth v. Bunn, 1 Barn. & Cress. 703. 2 See Wordsw. on Joint-Stock Comp. (39 Law Lib.) 290. 3 Ibid. 206 THE LAW OP DOWER. [CH. X. shareholders and not in the body corporate, the shares are to be treated as real estate, nevertheless agree in declaring and maintain- ing a different result where the corporation is clothed with the legal title. One of the most important of these is Bligh v. Brent, 1 which involved the question whether shares in the Chelsea Water-works Company were realty or personalty. The act of incorporation left the question open, as it contained no declaration on the subject. The effect of the act was thus stated by Mr. Baron Alderson : " In the first place, there is a corporation to whose management the joint- stock of money subscribed by its individual corporators is entrusted. They have power of vesting it at their pleasure in real estate, or in personal estate, limited only as to amount, and altering from time to time the species of property which they may choose to hold ; and in order to give them greater facilities and advantages, certain pow- ers are entrusted to the undertakers by the legislature, and that even before they were constituted a body corporate, of laying down pipes, and thereby occupying land for the purposes of their undertaking. These powers render the use of joint-stock by the body corporate more profitable, but they form no part of the joint-stock itself; and one decided test is this, that, they belong inalienably to the corpora- tion, whereas all the joint-stock is capable expressly of being sold, exchanged, varied or disposed of, at the pleasure of the corporate body. It is of the greatest importance to look carefully at the na- ture of the property originally entrusted, and that of the body to whose management it is entrusted ; the powers that body had over it, and the purposes for which these powers are given. The property is money ; the subscriptions of individual corporators. In order to make that profitable, it is entrusted to a corporation, who have an unlimited power of converting part of it into land, part into goods, and of changing and disposing of each from time to time ; and the purpose of all this is the obtaining a clear surplus profit from the use. and disposal of this capital for the individual contributors. The shares of the ' Chelsea Water-works Company' are, therefore, per- sonal estate." This question, with reference to the same company, had previously been decided the same way in Weekley v. Weekley ; 2 and in Bradley v. Holdsworth, 3 determined in 1838, which involved the i Bligh v. Brent, 2 You. & Coll. 268, 294. 2 Weekley v. Weekley, 2 You. & Coll. 281. » Bradley v. Holdsworth, 3 Meeson & Welsby, 422. CH. X.J THE PROPERTY SUBJECT TO DOWER. 207 question whether shares in the " London and Birmingham Railway" might be sold by verbal contract, the ruling in Bligh v. Brent was referred to with approbation. Alderson, B., said : " All the cases were under review in Bligh v. Brent, where the question was as to shares in the Chelsea Water works Company. That was a stronger case than the present, because there was no clause of this kind in the act of Parliament, and yet the shares were held personal prop- erty." The clause referred to expressly declared that the shares should to all intents and purposes be deemed personal estate, and transmissible as such, and should not be of the same nature of real property. But it is evident from what was said, that independently of this provision, the same decision would have been made. " I con- ceive," added Alderson, B., "that all the shareholders would take even without such a clause." And Park, B., said: "No doubt the company are seized of real property, as well as possessed of a great deal of personal property ; but the interest of each individual share- holder is a share of the net produce of both when brought into one fund." So in Duncuft v. Albrecht, 1 it was held that a parol agree- ment for the sale of railway shares is valid, upon the ground that they are neither an interest in lands, nor goods, wares or merchan- dise, within the statute of frauds. In Watson v. Spratley 2 the same doctrine was applied to a contract for the sale of shares in a mining company managed on the cost-book principle. And to the same effect are the cases cited in the note. 3 31. In the United States there is some diversity among the au- thorities upon this question. In the case of Welles v. Cowles, 4 decided by the Supreme Court of Connecticut, in 1818, it was held that shares of an incorporated turnpike company are real estate. "The right to the tolls," said the court, "is a right issuing out of real property, annexed to and exercisable within it ; and comes within the description of an incorporeal hereditament of a real nature, on the same principle as a share in the New River, in canal navigation, and tolls of fairs and markets." It was claimed in the argument i Duncuft v. Albrecht, 12 Sim. & Stu. 189. 2 Watson v. Spratley, 28 Eng. Law and Eq. 507. s Hargreaves v. Parsons, 13 Meeson & Welsby, 561 ; Humble v. Mitchell, 2 Railw. Cas. 70; S. C. 11 Ad. & Ellis, 205; Tempest v. Kilner, 3 C. B.249; Knight v. Bar- ber, 16 Meeson and Welsby, 66; see, also, Pickering v. Appleby, 1 Comyns' R. 354; Colt v. Nettervill, 2 Peer Wms. 304; Heseltine v. Siggers, 1 Exch. 856. * Welles v. Cowles, 2 Conn. 567. 208 THE LAW OP DOWER. [CH. X. that the individual stockholders had only a claim on the company, and not upon the realty, and that this must be of a personal nature. In disposing of this view of the case, the court remarked : " But the stockholders, as members of the company, are owners of the turn- pike road ; and it is in virtue of this interest that they have their claims for the dividends, or their respective shares of the toll. It is not a mere claim on the corporation." This decision was recog- nized as law in 1822, in a suit between the same parties, though the question was not expressly made. 1 32. In Binney's case, 2 decided in Maryland, the court said : " The whole estate of the Chesapeake and Ohio Canal Company, at least so far as it consists of the canal itself, and its necessary buildings, and the fixtures attached to them, must, according to the common law, be regarded as realty ; and it was so considered by the original act of incorporation, but by a subsequent enactment it has been de- clared that it should be deemed personal property." In regard to the effect of this provision, the court added : " It appears that direct- ing the estate of this corporation to be deemed personal property, can amount to no more than declaring it shall be governed by the municipal regulations of the country where it lies, in relation to per- sonal property, instead of those in relation to real estate, but that it must, nevertheless, be governed by those laws, and none other, as being an immovable portion of the habitation of the nation." In Cape Sable Company's case 3 it was decided that the language of the act incorporating that company, declaring "that the lands, tene- ments, stock, property, and estate" of the company, "is and shall be held as real estate, and shall descend as such, agreeably to the acts of assembly in such cases made and provided," applied, at least so far as the personalty was concerned, only as among the stock- holders themselves, and not as between them and third persons. 33. In Hurst v. Meason, 4 decided in 1835, the Supreme Court of Pennsylvania held that " a toll bridge erected by two individuals across a river between their lands, by legislative authority, is real estate." The court maintained that in such case there was "not only a right arising out of the soil, but, so far as the abutments of 1 Welles v. Cowles, 4 Conn. 182. 2 Binney's case, 2 Bland's Ch. 99, 145, 146. 3 Cape Sable Company's case, 3 Bland's Ch. 606, 670. 4 Hurst v. Meason, 4 Watts, 346. CH. X.] THE PROPERTY SUBJECT TO 'DOWER. 209 the bridge are concerned, it is the soil itself." It is to be remarked with respect to this case, however, that it does not appear that the builders of the bridge ever procured an act of incorporation. And the later cases of Gilpin v. Howell and Slaymaker v. Gettysburg, 1 seem to be against the doctrine of that decision. 34. In Price v. Price's Heirs, 2 the Court of Appeals of Kentucky, in 1838, held that stock in the Lexington and Ohio Railroad Com- pany is real estate. Without referring to any adjudicated case, the court came to a conclusion which is thus expressed : " The right con- ferred on each stockholder is unquestionably an incorporeal heredita- ment. It is a right of perpetual duration ; and though it springs out of the use of personalty, as well as lands and houses, this matters not. It is a franchise which has ever been classed in that class of real estate denominated an incorporeal hereditament." 35. Upon the other side we have decisions in Massachusetts, New York, Vermont, Ohio, Alabama, Tennessee, North Carolina, and Rhode Island. 36. The question came before the Supreme Court of Massachu- setts as early as 1798, in the case of Russell v. Temple, 3 and it was held that shares in incorporated bridge and canal companies are per- sonalty. The case was between the widow and heirs of Thomas Russell, the former contending that the shares were personal prop- erty, and that consequently she was entitled to a distributive portion of them, and the latter insisting that they were realty, and that therefore the widow had but a dower estate. " The principal reason of the decision," says Dane, "appears to be because the court con- sidered that the individual member, or shareholder, had only a right of action for a sum of money, his part of the net profits or dividends. And so the law has been held to be since this decision was made." In support of this opinion we have the observations of Parsons, Ch. J., in Tippets v. Walker, 4 where, in speaking of a turnpike company, he uses the following language : " When the road is made, the corpora- tion is entitled to demand and receive a toll of travelers for the use of it, in trust for the members of the corporation, in proportion to their respective shares. The property of every member is a right to receive a proportional part of the tolls, which is considered as 1 Gilpin v. Howell, 5 Barr, 57 ; Slaymaker v. Gettysburg, 10 Barr, 373. 2 Price v. Price's Heirs, 6 Dana, 107. s 3 Dane's Abr. 108, \\ 2-6. * Tippets v. Walker, 4 Mass. 596. VOL. I. 14 210 THE LAW OF DOWEK. [CH. X. personal estate." And in Howe v. Starkweather, 1 Parker, Ch. J., remarks : " Shares in a turnpike or other incorporated company are not chattels. They have more resemblance to choses in action, being merely evidence of property." 2 The same doctrine, substantially, is held in the cases cited in the note. 3 37. In Ohio this subject has recently undergone a very thorough discussion. In the case of Johns v. Johns, 4 the question was directly presented whether shares in a railway company are personal or real estate. The proceeding was for dower in certain shares of railroad stock held by the husband of the demandant at the time of his de- cease. The authorities were carefully examined by the court, and the learned judge who delivered the opinion went very fully into the consideration of the question in all its bearings. The result was adverse to the claim of the widow, the court being unanimously of opinion that the shares were personal property. "A careful exam- ination of the adjudications upon the subject," the court observed, "has brought us to the conclusion that, according to the weight of authority, the shares in question are personal property. In the early English cases the distinction, now well understood, between the property of a corporation and the rights of its members, does not seem to have been taken, and it appears to have been assumed that each shareholder had an estate in the corporate property, and that consequently, if that property was real, his share was also realty. But the cases we have cited abundantly show that the distinction above mentioned is now fully recognized in England, and that the property of a corporation may be mainly, if not wholly real, and yet the shares of its members be personalty." The court further re- marked : " It must be admitted, however, that the definition of Lord Coke, cited with approbation in Buckeridge v. Ingram, 8 sustains the position that the franchise was a tenement savoring of the realty; for, in the language of Coke, it was 'exercisable within lands.' And, 1 Howe v. Starkweather, 17 Mass. 243. * 2 See, also, Tisdale v. Harris, 20 Pick. 9 ; Bank of Waltham v. Waltham, 10 Met. 334; Hutchins v. State Bank, 12 Met. 421. • Wheelock v. Moulton, 15 Verm. 519 ; Isham v. Ben Iron Co. 19 Verm. 230 ; Den- ton v. Livingston, 9 John. 96 ; Arnold v. Ruggles, 1 K. Is. 165 ; MoDougal v. Hep- burn, 5 Flor. 568 ; Union Bank v. State, 9 Yerger, 490 ; Brightwell v. Mallory, 10 Verger, 196 ; Planters' Bank v. Merchants' Bank, 4 Ala. 753 ; Heart v. State Bank, 2 Dev. Ch. 111. 4 Johns v. Johns, 1 Ohio St. 350. 6 See ante, § 29. OH. X.] THE PROPERTY SUBJECT TO DOWER. 211 as before stated, we prefer to place our decision upon the distinction between tbe estate of the corporation and the individual rights of its members, rather than upon a distinction between the cases in which the profit arises wholly out of realty, and those in which it springs partly from realty, and partly from personalty, though this latter distinction seems to receive much support from both reason and authority." 1 38. Mr. Parsons gives the following as the rule properly deducible from the authorities : " Generally, in this country, and in England, the stock of a corporation is personal property; and this is so, even though the whole property of the corporation be real, and the whole of its business relate to the care of real estate ; if it be the surplus profit alone that is divisible among the individual members. But where lands are vested, not in the corporation, but in the individual shareholders, and the corporation has only the power of manage- ment, in that case the stock or shares are real property." 2 39. Professor Greenleaf states the rule substantially to the same effect : " Shares in the property of a corporation are real or personal property, according to the nature, object and manner of the invest- ment. Where the corporate powers are to be exercised solely in land, as where original authority is given by the charter to remove obstructions in a river and render it navigable, to open new chan- nels, &c. to make a canal, erect water-works, and the like, as was the case of the New River water, the navigation of the River Avon and some others, and the property or interest in the land, though it be an incorporeal hereditament, is vested inalienably in the corporators themselves, the shares are deemed real estate. Such, in some of the United States, has been considered the nature of shares in toll- bridge, canal and turnpike corporations by the common law; though latterly it has been thought that railway shares were more properly to be regarded as personal estate. But where the property origin- ally entrusted is money, to be made profitable to the contributors by applying it to certain purposes, in the course of which it may be invested in lands or in personal property, and changed at pleasure, the capital fund is vested in the corporation, and the shares in the stock are deemed personal property, and as such are in all respects treated. In modern practice, however, shares in corporate stock, of i See, also, State v. Franklin Bank, 10 Ohio Rep. 91, 97; Walker's Intr. 211. 2 2 Parsons on Con. 315. 212 THE LAW OF DOWER. [CH. X. whatever nature, are usually declared by statute to be personal estate." 1 Water granted for hydraulic purposes. 40. The case of Kingman v. Sparrow 2 presented the question whether dower is demandable in a right granted to take and use water for hydraulic purposes. In the year 1824-5, the State of New York, in the course of the construction of the Erie Canal, and as part of that work, erected in the bed of a portion of the Niagara River, what is known as the Black Rock dam. A harbor was also created at the same point. In January, 1827, the Canal Commis- sioners, in pursuance of authority conferred by law, " demised, leased, bargained, sold, and conveyed" to certain parties, "the right and privilege of taking and using, then and at all times thereafter, for hydraulic purposes, such and so much of the surplus waters of said canal at Black Rock, as can be taken under the sale," without inter- fering with the due and proper use of the canal and harbor. The lessees covenanted on their part to pay an annual rent for the right and privilege thus granted, a failure to make payment to operate as a forfeiture of their rights. In April, 1833, the Canal Commission- ers, upon the application of the lessees, passed resolutions in refer- ence to the location of buildings and machinery, so as to enable the lessees to use the surplus water, and under this authority, mills and a storehouse were erected on the dam, and upon piles in the harbor. The water power granted as above stated was employed in operating these mills. The husband of the demandant died vested with an undivided interest in this property and water power, and dower was claimed, not only in the mills and the premises upon which they were situate, but also in the right to the use of the water conferred by the State. Upon full consideration of the case, the court held that the right to take the water for hydraulic purposes was not subject to dower. "The Canal Commissioners," they remarked, "only sold, demised, &c. 'the right and privilege of taking and using at all times, for hydraulic purposes,' a portion of the surplus waters of the canal at Black Rock. This was a mere right and privilege to use surplus waters. There could be no dower in such a right. Nor did the per- i 1 Greenl. Cruise, 39, r. 413 ; 3 Bro. Pari. Cas. 453 ; 13 East, 489, and the certificate in Colson v. Colson, 2 Atk. 250. CHAPTER XII. OF SEIZIN AS A REQUISITE OF DOWER. 8 1. The general doctrine. 2-5. Nature and incidents of seizin. 6-11. Seizin in the United States. 12-15. Mere right of entry insufficient to give dower at common law. 16. Judgment alone against disseizor inoperative to confer seizin. 17. Execution served by the heir in- sufficient to give dower. 18. Necessity of actual entry abro- gated by statute in England. 19-21. The doctrine in the United States. 22, 23. Effect of death of bargainee before enrollment. 24-26. Seizin in law sufficient to give dower. \ 27. Conveyances under the statute of uses. 28. Shifting uses. 29. Doctrine of uses in the United States. 30. Seizin of incorporeal heredita- ments. 31. 32. Tortious seizin. 33. Joint seizin. 34, 35. When rendered sole by relar tion. 36-38. Transitory seizin. 39-46. Conveyance, and simultaneous reconveyance by mortgage. 47, 48. Requisites of the rule making such seizin transitory. 49. Instantaneous seizin. The general doctrine. 1. It was an inflexible rule of the common law that the right of dower could not attach upon any estate of which the husband had not been seized, either in deed or in law, at some period during the coverture ; and the courts, both of law and equity, were accustomed to enforce this rule with great rigor and severity. A mere right to, or interest in land, unless accompanied by technical seizin, was deemed insuflicient to confer a title of dower. 1 Some degree of familiarity with the general principles which fix and determine the legal requisites of seizin, is necessary, it will be perceived, to a proper understanding of the full force and effect of this rule. To this sub- ject, therefore, we will now briefly give our attention. i Litt. sec. 36; Perk. sec. 301 ; Fitzh. N. B. 147, (E.); Co. Litt. 81, a.; Park, Dow. 24; Tud. Cas. 45. (23T) 238 THE LAW OF DOWER. [CH. XII. Nature and incidents of seizin. 2. Under the old feudal system the mode of transferring a free- hold was by corporeal investiture, or livery of seizin, and this cere- mony was absolutely necessary to a perfect and complete transfer of the estate. It consisted, simply, in an open and notorious delivery of the possession to the proposed tenant of the freehold, in the pres- ence of the pares curiae, or peers of the lords' court; and this was usually effected by the lord of the manor, or some one authorized to act in his name, going upon the land with the tenant, and making a symbolic delivery of the possession to him by placing in his hand some portion of the premises, such as a turf or a twig severed there- from, the pares curiae acting as -witnesses of the transaction. This act of investiture was denominated livery of seizin. No deed or other writing was necessary to perfect the title of the tenant, though it was not an uncommon practice, as a means of preserving some evi- dence of the transfer, to record, in what were termed Irevia testata — corresponding to some extent with deeds of modern date — the nature of the services which the tenant was to render, and the terms and conditions upon which he was to hold the land. This record was authenticated by the seal and name or mark of the lord, attested by some of the pares. The formality of livery of seizin being completed, the party thus placed in possession became, to all intents and pur- poses, seized in deed, as tenant of the freehold. 1 3. Although the system of military tenures was abolished at a comparatively early period, yet many of its peculiar features had become so interwoven with the law of real property, that it became a matter of great difficulty, if not indeed almost an impossibility, to make a thorough and entire abolition of all the incidents of the sys- tem. The rule requiring livery of seizin became engrafted upon the common law, and was preserved in England until the 8th and 9th of Victoria, (1845,) at which time it was finally abolished. In modern English practice livery of seizin was exactly similar to the investi- ture of the feudal law, and in common law conveyances was in- dispensable to a complete transfer of title to the purchaser. The mere signing and sealing of a deed of feoffment of lands, unless pos- session were formally delivered by the feoffor to the feoffee, was in no !1 Sulliv. Lect. 142, 145; Co. Litt. 26^, b. n. 217; Stearns' Eeal Act. 2, 3; 1 Spence's Eq. Juris. 139, 160 ; 1 Washb. Real Prop. 32, 33 ; Green v. Liter, 8 Cranch, 229. CH. XII.] SEIZIN AS A REQUISITE OF DOWER. 239 instance sufficient to transfer an estate of freehold. It did not con- vey the estate itself, but was regarded merely as evidence of the nature of the conveyance. Without the formality of livery of seizin, the deed passed only an estate at will. 1 4. Livery of seizin at common law consisted of two kinds : livery in deed, and livery in law. The feoffor might go upon the premises with the feoffee, and there, taking the ring of the door of the prin- cipal mansion, or a turf or a twig, deliver the same to the feoffee in the name of seizin ; or he might say to the feoffee, " I am content that you should enjoy this land according to the deed," or words of similar import. Either of these modes constituted livery of seizin in deed; but so strict was the law that a mere delivery of the deed on the premises was not sufficient. It was necessary that it should be delivered in the name of seizin. Livery in law, was where the feoffor and feoffee went within sight of the premises, and the former said to the latter, " I give you yonder house, or land ; go and enter into the same, and take possession of it accordingly." If the feoffee entered in pursuance of this authority during the lifetime of the feoffor, the seizin was complete. Or if he could not enter without endangering his life, it was sufficient for him to venture as near as might be consistent with his safety, and there make claim to the land. This was also sometimes called a constructive seizin ; and the same term has been applied to cases where a grantee, or the heir, of several parcels of land in the same county, enters into one parcel in the name of the whole, which he may do where there is no conflicting possession of the parcels not actually entered upon. Livery of seizin being thus made, the feoffee became invested with the legal title of the freehold, and was said to be seized thereof in deed. 2 5. Seizin in law, is where title is cast upon a person by operation of law. Title to lands acquired by descent is an instance of this. Before entry the heir is said to be seized in law. But an actual entry upon the lands, either in person, or by some properly author- ized agent, is necessary at common law, to invest him with seizin in deed. 3 1 1 Inst. 48, a.; 4 Greenl. Cruise, 67, \ 5. 2 4 Greenl. Cruise, p. 67, \\ 8, 9, and p. 70, \\ 11, 12, 13 j Litt. sec. 417, 418, 419 ; Co. Litt. 48, ». b.; Thoroughgood's case, 9 Co. 136, a.; Vaughan v. Holdes, Cro. Jac. 80 ; Parsons v. Perns, 1 Mod. 91 ; Dow v. Stock, Gow R. 178 ; McLardy v. Flaherty, 3 Kerr, N. B. Rep. 455. ' s Litt. sec. 448 ; 1 Roper, H. and W. by Jacob, 352, 353. As to the effect of con- veyances under the statute of uses, see infra, \ 27. 240 THE LAW OF DOWER. [CH. XII. Seizin in the United States. 6. It may be stated as a general proposition that the common law mode of conveyance by feoffment and livery of seizin, was never adopted in the United States. 1 There are, however, some faint traces of the use of livery of seizin to be discovered in the early history of New England, and perhaps in some other portions of the country. Mr. Sullivan, in his treatise on Land Titles, says the cere- mony was practiced in the early settlement of the country, and refers to an instance where the colony of Plymouth made livery to Vines and Oldham of their patent on Saco River, in 1642. And he adds that it was observed in York, Maine, until 1692. 2 Judge Sharswood expresses the opinion that prior to the statute of Frauds and Perju- ries of 21st March, 1772, a parol feoffment, with livery, was a valid conveyance of lands in Pennsylvania. 3 Massachusetts dispensed with livery of seizin by statute in 1642. In Plymouth it was super- seded at an early date, by deed acknowledged and recorded. 4 And the mode of conveying lands by feoffment with livery of seizin was also long since abolished in New York by statute. 5 In many of the States it was never heard of in actual practice. 6 7. In this country the conveyance of lands is generally, if not universally, regulated by statute in the several States; each State for itself prescribing what acts or formalities shall be necessary to pass title to, or an interest in, lands within its own particular juris- diction. Generally, also, a deed made, acknowledged, delivered, and recorded in the manner prescribed by statute, is all that is required to render a transfer of the title complete, and to invest the purchaser with seizin in deed of the lands conveyed. The recording of the con- veyance is regarded, in many of the States, as the legal equivalent for livery of seizin. In other States, the mere delivery of the deed, without registration, operates to pass a perfect title, as against the grantor and his representatives, and all other persons having notice of the rights of the grantee. In some instances, also, the enactments go so far as to make an unrecorded deed good as against judgment 1 4 Kent, 84 ; 1 Spence, Eq. Juris. 156. 2 1 Washb. Real Prop. 34, note 1. 3 Ibid.; Smith, Land, and Ten. Morris' ed. 6, note. * Colony Laws, 85, 86 ; 1 Washb. Real Prop. 34, note 1. 5 1 Rev. Stat. p. 738, . Beardslee, 5 Barb. (N. T.) R. 324. ' Perk. sec. 374. CH. XII.] SEIZIN AS A REQUISITE OP DOWER. 245 same acre with T. K. for another acre in fee, and J. S. enters and executes the exchange for his part, viz. for the acre which was put in exchange to him ; and T. K. takes a wife, and dies without entering by force of the exchange, now his wife shall not have dower of the one acre, nor of the other. And the reason is, because the husband was not seized of that land, either in deed or in law, during the coverture." 1 Judgment alone inoperative to confer seizin. 16, The prosecution of a right or title, even to judgment, if the husband died before entry or execution served, was formerly inef- fectual to entitle the widow to dower, for the judgment alone, it was determined, could not confer a seizin. " If a man hath judgment to recover land, and marries, and dies before entry or execution sued, his wife shall not have dower." 2 This rule, before the changes introduced in England by recent statute, was held to apply, not only to recoveries in adverse suits, but also to common or feigned recov- eries; and it was decided that until the return of the writ of execu- tion, or, at least, until seizin was delivered, no seizin was in the re- coverer, and consequently that no use could arise. 3 Execution served by the heir ineffectual to confer dower upon the widow of the ancestor. 17. So strict was the common law, in this respect, that service of execution after the death of the ancestor, at the instance of the heir, would not inure to the benefit of the widow of the ancestor, although when completed it had, in law, relation back to the act of the ances- tor, and was held to let in the heir by descent. 1 This fictitious sei- zin, or seizin by relation, was admitted for the purposes of tenure only, and the courts refused to so extend it as to confer upon the ancestor the incidents of actual seizin, or upon his widow the right to dower. The following quotation from Perkins, though somewhat obscurely worded, furnishes an illustration of this proposition : "And' i Perk. sec. 369. 2 Ibid. sec. 370 ; Plow. 43 is to the same effect. ' Jenk. Cent. 249, Ca. 40, pi. 4 ; Witham v. LewiB, 1 Wils. 48, 55 ; Shelley's case, Sir W. Jones ; 10 Moor. 141 ; Park, Dow. 26 ; and see 4 Bro. P. C. 510 ; 1 Prest. Conv. 149. * Shelley's case, cited in preceding note ; Jenk. 249; Co. Litt. 361, b. 246 THE LAW OP DOWER. [CH. XII. if there be husband and wife, and the husband is seized of one acre of land by a wrongful title, and is impleaded of the same acre by him that hath the right, and vouches a stranger to warranty, who enters into the warranty and loses ; and each of them hath judgment to recover against the other, 1 and the demandant enters, and the husband dies before execution sued against the vouchee, now his wife shall not have doWer.of this land [recovered by her husband] ; 2 although the heir of her husband sue forth execution, and this land cometh in lieu of the land of which the husband was seized during the coverture." 3 Necessity of actual entry abrogated by statute in England. 18. Many of these subtle distinctions of the common law have been removed with regard to claims for dower arising under marriages contracted since January 1st, 1834, by the passage of the 3 & 4 William IV., chapter 105. 4 The third section of that act provides as follows: "When a husband shall have been entitled to a right of entry or action in any land, and his widow would be entitled to dower out of the same if he had recovered possession thereof, she shall be entitled to dower out of the same, although her husband shall not have recovered possession thereof, provided that such dower be sued for or obtained within the period during which such right of entry or action might be enforced." As to marriages contracted prior to the date above named, the rule of the common law is still in force. 5 In what cases actual entry required in the United States. 19. The doctrine of the common law, requiring an actual entry in case of adverse possession, and treating the seizin as lost to the real owner without such entry, has not been adopted to any considerable extent in the United States. The statutes of Maine, Michigan, Missouri, and Arkansas expressly declare that the fact that the 1 That is to say, the demandant hath judgment to recover against the tenant, and the tenant to recover over in value against the vouchee. Park, Dow. 27, note. 2 These words, which accord perfectly with the sense of the passage, are added hy Mr. Greening. 3 Perk, by Greening, sec. 375; and see Bro. Dow. pi. 9 and 18. 4 Stat, at Large, vol. lxxiii. p. 999. See Appendix. 5 2 Sudgd. Vend. & Pur. 222. CH. XII.] SEIZIN AS A REQUISITE OP DOWER. 247 grantor in a deed is disseized at the time of the conveyance, shall be no bar to the operation of the deed. 1 Such, also, is held to be the effect of the legislation in Ohio. In a recent case decided in that State, the Supreme Court used this language : " That livery of sei- zin has never been essential, in Ohio, to the creation of a freehold estate, nor an entry necessary to perfect the title of an heir or de- visee, is well known to every lawyer. The most common instrument of conveyance is a deed of bargain and sale, which, without the aid of a statute of uses, transfers both the legal and equitable estate. Nay, further, a mere deed of quit claim or release is sufficient, even where the releasee has no prior interest in the land. But our de- parture from the English law does not stop here. For an adverse possession does not prevent the transfer of title either by deed, de- scent, or devise. Whatever title is held by the grantor, ancestor, or testator, may be thus transferred, notwithstanding the lands are adversely held by another. Holt v. Hemphill, 3 Ohio Rep. 232 ; Helfenstine v. Grarrard, 7 Ohio Rep. pt. 1, 275 ; Hall v. Ashby, 9 Ohio Rep. 96. It might seem, from what was said in Holt v. Hemp- hill, that an adverse possession would be fatal to a deed ; but that such possession in no wise affects it, was expressly decided in Hall v. Ashby." 2 In general terms, the same doctrine may be said to pre- vail in a large proportion of the States. 20. In some of the States a mere right of entry will give dower, although such right is not sufficient to support a conveyance as against an adverse possession. Thus, in Virginia, it is provided that "when a husband, or any other to his use, shall have been entitled to a right of entry, or action, in any land, and his widow would be entitled to dower out of the same if the husband or such other had recovered possession thereof, she shall be entitled to such dower, although there shall have been no such recovery of possession." 3 Similar statutes have been adopted in Kentucky 4 and the District of Columbia. 5 1 4 Greenl. Cruise, 66, note ; 2 Comp. Laws Mich. 838, g 7. 2 Borland v. Marshall, 2 Ohio St. Rep. 308, 313 ; see, also, Bush v. Bradley, 4 Day, 298 ; Chew v. Corn's of Southwark, 2 Rawle, 160 ; Strudwiok v. Shaw, 1 Hay. 5; Tyson a. Harrington, 6 Ired. Eq. 333. » Code of Va. (1849,) p. 474, \ 2; copied, substantially, from 3 & 4 Will. IV. ch. 105, 1 3. * Rev. Stat. Ky. (1852,) p. 393, \ 5 ; Stanton's Rev. vol. ii. p. 22, \ 5. » Rev. Code Dist. Col. (1857,) p. 200, g 6. 248 THE LAW OF DOWER. [CH. XII. 21. In several of the States, the old English rule, though in a somewhat modified form, is recognized and applied. In New York a statute was enacted, many years since, which declared that "every grant of lands shall be absolutely void, if, at the time of the delivery thereof, such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor." 1 A similar statute has been adopted in Kentucky. 2 But this statute does not apply when the grantee,* in person, or by tenant, is in possession when the deed is made ; nor where the deed is made to carry into effect a contract entered into prior to the passage of the enactment. In Massachusetts, where the owner of lands who had been disseized, made a deed of conveyance without having entered upon them, it was held that his deed passed no seizin to the grantee, and that the widow of the latter was not entitled to dower. 4 It is sufficient, how- ever, where the rightful owner has been disseized, and he wishes to make a valid conveyance of the title, for him to go upon some part of the premises with the vendee, and there deliver his deed, the sei- zin, in such case, passing with the deed. 5 Thus, in Oakes v. Marcy, where certain heirs at Jaw had been disseized, but had not lost their right of entry, and entered upon the lands, and there delivered their deed to the grantee, it was adjudged that the disseizin was so far purged by the entry as to give operation to the deed. 6 Death of bargainee before enrollment. 22. A difference of opinion appears to have prevailed among the early text writers and judges, with respect to the effect of the death of a bargainee of lands before enrollment. In one portion of his work on Uses, Chief Baron Gilbert states the law upon this point as fol- lows: "If lands are bargained and sold, and the bargainee dies before enrollment, his wife shall not be endowed ; for the right of dower is, according to the rules of the common law, consummate by i 1 Rev. Stat. 739, \ 147. » Rev. Stat. Ky. p. 164, ch. 12, jg 2 ; Kinsolving v. Pierce, 18 B. Mon. 782 ; Card- well v. Sprigg, 7 Dana, 37. 8 Chiles v. Jones, 7 Dana, 529. 4 Small v. Procter, 15 Mass. 495 ; 4 Dane's Abr. 16. 5 1 Washb. Real Prop. 35, Sneyd v. Sneyd, 1 Atk. 442. CH. XII.] SEIZIN AS A REQUISITE OF DOWER. 261 dower ; and in the case of a use the widow of a trustee has been de- termined to have no claim of dower from such a momentary seizin." 1 Conveyance by deed and simultaneous reconveyance by mortgage; mortgagor has a transitory seizin only. 39. To this principle may also be referred the well-settled doc- trine that where a deed for lands is executed, and simultaneously therewith the purchaser gives back a mortgage upon the same lands to secure any portion of the purchase money, he acquires, as against the holder of the mortgage, no such seizin as will entitle his wife to dower. The deed and mortgage, although in themselves separate and distinct instruments, nevertheless, under the circumstances above stated, are regarded as parts of the same contract. They take effect at the same time, and the giving of the deed upon the one part and of the mortgage upon the other, is held to constitute but a single act, and to result in clothing the purchaser with the seizin for a transitory instant only. With but rare exceptions, this is the estab- lished doctrine of the American courts. 2 40. Nor is it necessary that the mortgage should be made directly to the vendor. It is sufficient if it be made to a third person for his benefit. 3 And where the mortgage is of even date with the deed, and both instruments are recorded at the same time, the mortgage, although not made to the vendor, will be presumed to have been i See, also, Vin. Abr. tit. Dower, (G.,) pi. 5; 2 Vera. 58; Tooker's case, 2 Co. 67. 2 Holbrook «. Finney, 4 Mass. 566 ; Clark v. Munroe, 14 Mass. 351 ; Coates v. Cheever, 1 Cow. 460 ; Jackson v. Dewitt, 6 Cow. 316 ; Stow v. Tifft, 15 John. 458, 463 ; Bell v. Mayor of New York, 10 Paige, 49 ; Kittle v. Van Dyck, 1 Sandf. Ch. 76 ; S. C. 3 N. Y. Leg. Obs. 126 ; Cunningham v. Knight, 1 Barb. 399 ; Mills ». Van Voorhies, 23 Barb. 125; S. C. 20 N. Y. (6 Smith,) 412; Bullard v. Bowers, 10 N. H. 500 ; Griggs v. Smith, 7 Halst. 22 ; Bogie v. Rutledge, 1 Bay, 312 ; Crafts v. Crafts, 2 McCord, 54; McCauley v. Grimes, 2 Gill & John. 318; Grant v. Dodge, 43 Maine, 489; Whitehead v. Middleton, 2 How. Miss. 692; Welch v. Buckins, 9 Ohio State R. 331 ; Gilliam v. Moore, 4 Leigh, 30 ; Nottingham v. Calvert, 1 Smith, (Ind.) 399 ; 8. C. 1 Carter, 527 ; Eslava v. Lepretre, 21 Ala. 504 ; Wheatley v. Calhoun, 12 Leigh, 264 ; Adams v. Hill, 9 Fost. N. H. 202 ; Smith v. Stanley, 37 Maine, 11 ; Young v. Tarbell, Ibid. 509; Mayburry v. Brien, 15 Pet. 21; Reed v. Morrison, 12 S. & R. 18; Rands v. Kendall, 15 Ohio R. 671 ; Sherwood v. Vandenburgh, 2 Hill, 303; Hobbs v. Harvey, 4 Shepl. 80; Gully v. Ray, 18 B. Monr. 107, 114; Garton's Heirs v. Bates, 4 B. Mon. 366 ; Gammon v. Freeman, 31 Maine, 243 ; Moore v. Rol- lins, 45 Maine, 493. This rule is also embodied in the statutes of several of the States. See ch. 23. 3 Cunningham v. Knight, 1 Barb. 399. 262 THE LAW OF DOWER. [CH. XII. executed for the purchase money cotemporaneously with the convey- ance, and the right of dower of the wife of the mortgagor will there- fore be limited to the equity of redemption. 1 Nor does it make any difference that other premises of the mortgagor are included in the same mortgage as a farther security for the purchase money. 2 And where the vendor never had the legal title, but procured his own vendor to make a conveyance to the vendee of the former, and at the same time took from such vendee a mortgage to himself for the purchase money, the same principle applies. Thus, where A. had purchased land from B. by title bond, and after paying for the land, but before receiving a conveyance, sold to C, and by agreement a deed was executed by B. directly to C, and C. at the same time executed a mortgage to A. to secure the purchase money due from C. to A., it was held that the wife of C. was not entitled to dower as against the mortgagee. 3 ,So where A. had given his note to B. for a tract of land, and by agreement B. conveyed the land to C, who therefor, and at the same time, conveyed another tract of land to A., and A. at the same time gave a mortgage thereon to B. as security for the payment of the note of A., it was held that the momentary seizin of A. did not entitle his wife to dower in the premises thus conveyed to him by C. 4 And if the purchaser make a deed of trust to secure the purchase money, instead of a mortgage, it is equally effectual to exclude the dower of his wife. 5 41. The rule is the same where a third person advances the con- sideration money for the lands, and takes from the vendee, to whom they are conveyed by tbe vendor, a mortgage to secure the repay- ment of the money thus advanced. It has been determined in the courts of several of the States that in cases of this description, the right of dower of the wife of the vendee is subordinate to the lien of the mortgage. 6 42. A case was recently determined in Virginia in which the rule now under consideration received a very liberal construction. By i Cunningham v. Knight, 1 Barb. 399. See Moore v. Rollins, 45 Maine, 493. 2 Moore v. Rollins, 45 Maine, 493. s Welch v. Buckins, 9 Ohio State Rep. 331. * Gammon v. Freeman, 31 Maine, 243. 5 Gilliam v. Moore, 4 Leigh, 30 ; see Moore v. Gilliam, 5 Munf. 346, dubitanter. 6 Kittle v. Van Dyck, 1 Sandf. Ch. R. 76 ; S. C. 3 N. Y. Leg. Obs. 126 ; Gammon v. freeman, 31 Maine, 243 ; Smith „. Stanley, 37 Maine, 11 ; Clark v. Munroe, 14 Mass. 351 ; Mayburry v. Brien, 15 Pet. 21 ; see Cunningham v. Knight, 1 Barb. 399; 4 Kent, 39; 1 Washb. Real Prop. 176. CH. XII.] SEIZIN AS A REQUISITE OF DOWEK. 263 the terms of a contract for the sale of land, the vendee was to execute a mortgage to secure the purchase money, immediately upon receiv- ing a conveyance, but by reason of some disagreement as to the terms of the mortgage, its execution was postponed some ten months after the deed was delivered. It was held, however, that in equity the mortgage was to be treated as having been delivered at the time agreed upon, and consequently that the rights of the mortgagee were paramount to the claim of dower. 1 43. In the case of M'Cauley v. Grimes, 2 lands came to certain parties by descent. They agreed by parol that the entire estate of the ancestor should be equally divided among them, and in pursuance of this agreement one of the parties, who had received from the an- cestor prior to his death a conveyance for a portion of his estate, reconveyed the same to a coheir, the latter at the same time giving bonds to all the heirs for the payment to each of a certain stipulated sum of money for their respective shares in the lands so conveyed to him, and securing the payment thereof by mortgage upon the same lands. It was held that his widow was not entitled to dower as against the mortgage. And where the husband had acquired a seizin of lands to enable him to mortgage the same, and the wife joined in the mortgage, but failed to acknowledge it, it was decided that she was not dowable of the lands. 3 But where lands had been con- veyed subject to a right of repurchase in the grantor, it was held that the transaction did not constitute a mortgage, and that the wife of the grantee was entitled to dower. 4 44. It is not essential to the application of this rule that the two instruments should correspond in date, provided they are delivered at the same time, as they take effect from the time of delivery only. And it is competent to show by parol at what time the delivery was actually made. 5 45. The result is the same, so far as the right of dower is con- cerned, whether the reconveyance by the vendee be in fee, or for life, only. In a case which arose in New Hampshire, a tract of land was conveyed in fee by a father to his son, and the son at the same time reconveyed to the father for the life of the latter. The deed i Wheatley v. Calhoun, 12 Leigh, 264. s M'Cauley v. Grimes, 2 Gill and John. 318. 3 Bogie v. Kutledge, 1 Bay, 312. * Chase's case, 1 Bland, 206. SMayburry v. Brien, 15 Pet. 21; Reed ». Morrison, 12 S. & R. 18; 1 Washb. Real Prop. 178. 264 THE LAW OF DOWER. [CH. XII. of reconveyance contained a stipulation that the son should not be disturbed in his possession of the premises so long as he performed the conditions of a certain bond executed by him, by which he had undertaken to furnish a maintenance to the father for the period of his natural life. After holding the land for several years, the son left the country, and thenceforth neglected to furnish the stipulated maintenance ; whereupon the father entered upon the premises, and continued in possession until his death. The son died during the lifetime of the father, and his widow applied for dower in the land. It was held that although the reconveyance was intended as a secu- rity for the performance of the conditions of the bond, it neverthe- less did not constitute a mortgage. It was also held that the seizin acquired by the son was not such as would entitle his widow to dower. 1 With regard to this case, it will be observed, that although the re- conveyance did not affect the reversion, but left that estate in the son, yet as to the present freehold he had but a transitory seizin. That estate passed from him by the same transaction which conveyed it to him. And as the common law does not give dower in a rever sionary interest where there is an outstanding precedent freehold estate, 2 and as the father had entered for breach of the conditions of the bond, while the son was living, and so became seized in fact of the estate for life, it is clear that the decision of the court was strictly in accordance with principle. 3 46. Cases have been decided in Kentucky which appear to con- flict, to some extent, with the general current of authority upon the doctrine above discussed. In one case a purchaser of lands, upon the same day of receiving the conveyance, executed a mortgage of the same lands to the creditors of the vendor, in satisfaction of their demands against the latter. It was held that the dower right of the wife of the purchaser was paramount to the lien of the mortgage. 4 The same ruling was made in a case where a grantee of lands, at the time of receiving the conveyance, reconveyed them to a third person in trust to secure the payment of certain debts due from the grantor. 5 47. One important element of the rule above considered should here be noticed. In order to deprive the wife of her dower, the i Moore v. Esty, 5 N. H. 479. 2 Supra, ch. 11, | 5; Infra, ch. 15. * Park on Dower, 154; Infra, ch. 15. 4 McClure v. Harris, 12 B. Mon. 261; see, also, Blair v. Thompson, 11 Gratt. 441. 5 Tevis v. Steele, 4 Mon. 339 ; Bailey v. Duncan, Ibid. 256 ; but see Gully v. Ray, 18 B. Mon. 114. CH. XII.] SEIZIN AS A REQUISITE OF DOWER. 265 claim of the mortgagee must proceed from the same transaction that gave the husband his seizin. Therefore, where a mortgage was given by the vendee to the vendor, to secure the purchase money of the lands mortgaged, and afterwards a third person discharged the mort- gage, and took a new mortgage to himself from the vendee to secure the repayment of the moneys advanced for that purpose, it was held that the wife of the vendee was entitled to dower. 1 And in the same State it was determined that where it is claimed in defence to an action for dower, that a mortgage for the purchase money was executed by the husband simultaneously with the delivery to him of the deed, the onus rests upon the defendant of showing that the two instruments constituted but one transaction. 2 48. A case recently decided in New Hampshire, by reason of its peculiar character, is deserving of especial notice. Certain lands in Lancaster were conveyed by A. to B., on the 2d of June, 1821. On the 9th of the same month, C. conveyed to B. certain other lands in Greenland, and B. immediately executed to A. a mortgage upon the lands in Greenland, to secure the purchase money of the lands in Lancaster. The court, acting upon the idea that here was but a transitory seizin of the premises situate in Greenland, refused to al- low the widow of the vendee to be endowed thereof, except upon condition that she contributed to the satisfaction of the mortgage debt. 3 The correctness of this decision has been questioned, and with apparent reason. 4 If the right to be endowed is to be tested by the simple question whether the seizin is transitory only, without reference to the character of the interest actually acquired by the husband, the ruling of the court was undoubtedly correct. But it is believed that this is not the true test to be applied. If the hus- band mortgage lands of which he is seized, to a third person, to secure a debt which does not originate from, and has no connection with, the purchase of the lands, the general rule is that the wife is not affected by the mortgage ; and the fact that the mortgage is ex- ecuted immediately after the seizin has attached, will not, it is ap- prehended, make any material difference in the case. In Maine the question has been decided directly to the contrary of the ruling of the New Hampshire court. A husband, at the same time that he 1 Gage v. Ward, 25 Maine, 101. 2 Grant v. Dodge, 43 Maine, 489. 8 Adams v. Hill, 9 Fost. N. H. 202; and see Gammon v. Freeman, 31 Maine, 243. * 1 Washb. Real Prop. 176, note. 266 THE LAW OE DOWER. [CH. XII. received a deed for lands, conveyed them by deed to a third person, and it was determined that inasmuch as he had been seized bene- ficially, although for an instant only, the wife should have her dower, 1 and this holding would seem to be in accordance with correct prin- ciple, and the general tenor of the authorities. Instantaneous seizin. 49. Subject to the qualifications and exceptions set forth in the foregoing division of this chapter, the rule of the common law is, that a beneficial seizin by the husband, for a single instant of time, is sufficient to clothe the wife with the right of dower. 2 Instances of the application of this rule have been noticed on a previous page ; as where lands descend upon the husband during the coverture, and a stranger abates upon them in the instant of the ancestor's death ; 3 or where the husband is seized of a remainder or reversion expectant upon an estate of freehold, and the latter estate determines during the coverture by the expiration of the time comprised in its limita- tion, and a stranger immediately intrudes upon his seizin. 4 In either of these cases the instantaneous seizin is sufficient to enable the es- tate of dower to attach. This principle is further illustrated by the old and often quoted case of Broughton v. Kandall, 5 which arose in Wales. In that case a father was tenant for life, remainder to his son in tail, remainder to the right heirs of the father. Both father and son were attainted of felony, and executed at the same time, being both hanged in one cart. The son had no issue of his body. It was proved by witnesses who were present at the execution that the father moved his feet after the death of the son, and, upon this evidence, it was found by verdict that the father died seized of an estate in fee by survivorship, of which his wife had a right to be endowed, and she had judgment accordingly. 6 The common law rule that instantaneous seizin, accompanied by a beneficial interest i Stanwood v. Dunning, 2 Shep. 290; see Tevis v. Steele, 4 Mon. 339. 2 Co. Litt. 81, a.; 2 Bl. Com. 132; 1 Roper, Husb. and Wife, by Jacob, 373; 4 Kent, 39. a Ante, g 24. i Ante, g 25. 5 Broughton v. Randall, Noy, 64 ; Cro. Eliz. 502. In the latter book the facts are somewhat differently stated. See 2B1. Com. 132. 6 With respect to questions of survivorship between persons perishing by the same calamity, see Taylor v. Diplack, 2 Phill. 261 ; 1 Greenl. Ev. gg 29, 30. CH. XII.] SEIZIN AS A REQUISITE OE DOWER. 267 in the husband, is sufficient to confer dower, is very generally recog- nized in the United States. 1 1 Holbrook v. Finney, 4 MaBS. 566 ; Coates v. Cheever, 4 Cowen, 460 ; Griggs v. Smith, 7 Halst. 22 ; Stanwood v. Dunning, 2 Shepl. 290; Randolph v. Dobs, 3 How. Miss. 205; Crafts v. Crafts, 2 McCord, 54; DouglaBS v. Dickson, 11 Rich. Law R. 417 ; Arrant v. Robertson, 2 McMullan, 215; Tevis v. Steele, 4Monr. 339 ; McClure v. Harris, 12 B. Monr. 266 ; 4 Kent, 38, 39 ; 1 Waslib. Real Prop. 175 ; 1 Hilliard, Real Prop. 2d ed. 136. CHAPTEB XIII. DOWER IN ESTATES IN FEE SIMPLE, FEE TAIL, AND ESTATES ACQUIRED BY EXCHANGE. \ 1. Dower in estates in fee simple. 2-6. In estates in fee tail. 7-11. In estates acquired by exchange. \ 12-14. Effect of the determination of estates by natural limitation. Estates in fee simple. 1. An absolute and unconditional estate in fee simple is the high- est interest in lands known to the law. It is hardly necessary to add that such an estate is subject' to dower. Estates in fee tail. 2. A widow is also entitled to dower in estates in fee tail, whether general or special, except where the estate is so limited as to exclude her issue from the inheritance. This point has been already suf- ficiently explained elsewhere. 1 3. In many of the United States the common law relating to en- tailments is entirely abolished, and in others it is very materially modified. Some of these changes will be here noted. In California, 2 Florida, 3 Texas, 4 and Virginia, 5 the entailment of estates is expressly forbidden. In Alabama, 6 Georgia, 7 Kentucky, 8 North Carolina, 9 Tennessee, 10 and Wisconsin, 11 the statute regulations convert estates tail into estates in fee simple in the hands of the first donee in tail. In Indiana the law is the same, except where a valid remainder is limited i Ante, ch. 11, \ 2. 2 Const. Art. XI. See Doe, dera. King v. Frost, 3 Barn. & Aid. 546; 5 Eng. C. L. 373 » Supra, U 20, 21. * Sec. 53. 6 Barker v. Barker, 2 Sim. 249; 2 Cond. Eng. Ch. R. 406. « Supra, \ 19. 298 THE LAW OF DOWER. [CH. XIV. said," observed the Vice-Chancellor, " that this case was decided by Sumner v. Partridge, where there was a devise to A. and her heirs, and if she died before her husband, he was to have ,£20 a year for life, remainder to go to her children. A. died before the husband ; but the court held that he was not tenant by the curtesy. In op- position to that case, two cases were cited. The first was Buckworth v. Thirkell, where an estate was devised to trustees in trust for Mary Barrs, till she attained twenty-one, or married, and then to the use of her and her heirs, with a devise oyer in case she died under the age of twenty-one, and without leaving issue. The events were that she married, and had a child; the child died, and then the mother died under twenty-one ; and the question was, whether the husband was entitled to be tenant by the curtesy, which entirely depended upon whether she had such an estate, as, by possibility, her issue might inherit. The case was twice argued, and Lord Mansfield says that, during the life of the wife, she continued seized of a fee simple to which her issue might, by possibility, inherit ; and had she attained twenty-one, her vested estate would have descended on her issue. The consequence was, that her husband was held to be entitled to be tenant by the curtesy. The second case was Moody v. King, where there was a devise to W. Frost and his heirs, but if he should have no issue, the estate devised was, on his decease, to become the prop- erty of the heir at law. Now it is manifest that W. Frost had an estate that might have descended on his issue, and that, on his dying without issue, that estate determined. But it was, nevertheless, held that his widow was dowable. But these two cases are distinguishable from Sumner v. Partridge, and from the one now under consider- ation. For, in Sumner v. Partridge, and the case now before me, the children take by force of the gift ; in the two other cases, the devise over was to other persons. It is clear, therefore, that the estate which the wife had, is determined by her dying leaving issue, by which the children take as purchasers, by force of the gift. There- fore the wife had not such an estate as could descend to her children, they taking as purchasers. The consequence is that the husband is not entitled to be tenant by the curtesy." 1 30. In a recent case Vice-Chancellor Stuart applied the doctrine of Moody v. King to an equitable determinable estate. A testatrix 1 The opinion of the Vice-Chancellor in this case is referred to by Mr. Bisset in terms of high commendation. Bisset, Est. far Life, 85 ; 42 Law Lib. CH. XIV.] DETERMINABLE ESTATES. 299 devised to trustees certain freehold premises, in trust to receive the rents, and after paying thereout all proper outgoings, and applying therefrom any moneys that they thought fit, to the maintenance of F. S., to let the residue accumulate until F. S. should attain twenty- one, and then to pay such accumulations to him ; but if he should die under age without leaving issue living at his decease, then such accumulations were to be applied for the benefit of the person to whom, and in the like manner and form, as the premises were limited in the like event; and when F. S. should attain twenty-one, then the trustees were to stand seized of the premises in trust for him in fee; but if he should not leave any issue living at his decease, then the trustees were to stand seized of the premises in trust for A. S. in fee ; and if A. S. should not leave any issue living at his decease, then the premises were devised over. F. S. attained twenty-one, and died without ever having had issue. It was held, on the con- struction of the will, that an equitable estate in fee in the premises vested in F. S. on his attaining twenty-one, subject to be divested in the event of his dying without issue, which event having happened, the limitation over in favor of A. S. took effect ; but that the widow of F. S. was nevertheless entitled to dower under the provisions of 3 and 4 Will. IV. chapter 105. "The question in this case," said the Vice-Chancellor, " as to the widow's right to dower, must depend upon the true construction of the act of Parliament, the 3 and 4 Will. IV. c. 105. The estate out of which the defendant Ann Eliza- beth Spencer claimed to be entitled to dower, was an equitable one, in respect of which, consequently, no such claim could exist at com- mon law, and she would not be entitled to any dower but for the late act of Parliament which said 'that where the husband should die beneficially entitled to any land, for an interest that should be an estate of inheritance in possession, then his widow should be entitled to dower.' 1 The question was whether the husband of this lady died 'beneficially entitled' to any lands, and if the interest which he had was an estate of inheritance in possession. The husband was tenant in fee simple, subject to an executory devise over in case he died without leaving a child or issue living at the time of his death. It seemed to him, upon a strict and liberal interpretation of the lan- guage of the will, that if he died seized of anything, he must have died seized of an estate of inheritance, for he certainly did not die • 1 See Appendix. 300 THE LAW OF DOWER. [CH. XIV. seized of a life estate. The estate which he had was an estate of inheritance; but although of inheritance, it was defeasible in this way — that in case he left no child or issue living at his death, then the estate was to go over to the person entitled to it. This inter- pretation of the language of the will seemed to him quite conform- able to the common law doctrine, and it was an interpretation which reconciled the right given to the widow to have her dower out of the equitable estate, so as to make it analogous to the right which she would have had if it had been a legal estate. The language of Lit- tleton in the 53 section, as to a legal estate, was very clear, and the interpretation of it in the case of Moody v. King was strict and proper. Littleton said 'that in every case where a woman taketh a husband seized of such an estate of tenements, &c. so that by possi- bility it may happen that if the wife have any issue by her husband, and that the same issue may by possibility inherit the same tene- ments of such estate as the husband hath, as heir to her husband of such tenements, she would have her dower, and otherwise not.' It was quite plain that in this case the husband was so seized that he might have had issue who would have inherited the land in such a manner as to have had the same estate as the husband ; that was, an estate of inheritance. But the question did not rest upon the inter- pretation of the language of Littleton as applied to the case of a fee simple in the husband, with an executory devise over in case he left no child living at his death; for it was determined in the ease of Moody v. King in the Court of Common Pleas — and that decision was adopted by this court — that in a case of this kind, though there be an executory devise over, yet the wife was dowable ; and upon the same principle it seemed impossible properly to adopt any other interpretation. It could not be necessary to hold that the estate of which the husband died seized was transmissible to his heir in order to entitle the wife to dower ; because it was certain and undoubted law, that if there be a tenant in tail with a remainder over in fee, although the tenant in tail should die without leaving any issue, so that the estate in remainder in fee took effect, the wife was dowable as against the remainder- man; and in principle it seemed impossible to say that an estate of which the tenant in tail was seized at his death for an estate tail, could be, in any respect, different from an estate given to a tenant in fee simple who died seized of that estate, but because he died without leaving a child, an executory devise over took effect. The principle seemed the same in both cases, and CH. XIV.] DETERMINABLE ESTATES. 301 therefore he felt compelled to hold, upon the true construction of the statute, that the widow of this tenant in fee simple was, notwithstand- ing that the executory devise over took effect, entitled to dower as against the executory devisee." 1 Upon appeal to the Lord Chan- cellor, the decree of the Vice-Chancellor was affirmed. 2 31. In the United States, as in England, the discussion of this subject has not resulted in an entire unanimity of opinion. Chan- cellor Kent maintains that "the ablest writers on property law are evidently against the authority of the case of Buckworth v. Thhkell, and against the right of the dowress, when the fee of the husband is determined by executory devise or shifting use." 3 Mr. Hilliard, while appearing to recognize the authority of that case, neverthe- less adopts, substantially, the distinction insisted upon by Mr. But- ler. 4 But Mr. Washburn, after reviewing the authorities, concludes that the tendency of the modern cases, both English and American, is to support the right to dower out of estates which have been de- termined by executory limitations. 5 And it would seem that the adjudged cases are in harmony with this proposition. 32. The English cases have already been referred to. The Amer- ican cases will now be noticed. The point was considered by Chief Justice Gibson in Evans v. Evans. 6 In that case a testator had de- vised lands to two sons, G. and 0., their heirs and assigns, but if either should die without having lawful issue living at his death, his estate was to vest in the surviving brothers and sisters. One of these sons died without issue, living the other son, and the question was made whether his widow was entitled to dower. An affirmative de- cision was given. Chief Justice Gibson, who discussed the subject at length, dissented from the distinction taken by Mr. Butler. 7 "I have a deferential respect for the opinion of Mr. Butler," he re- marked, "who was, perhaps, the best conveyancer of his day, but I can not apprehend the reasons of his distinction in the note to Co. Litt. 241, a., between a fee limited to continue to a particular period at its creation, which curtesy or dower may survive, and the devise 1 Smith v. Spencer, V. C. Stuart's Court, July, 1856, 2 Jurist, n. s. 778. A brief note of tlie case is also contained in 19 Law Reporter, 515. 2 Smith v. Spencer, 6 De Gex, Macnaghten & Gordon's Rep. 631. Upon the appeal, however, no question appears to have been made with respect to dower. ' 4 Kent, 50. * 1 Hilliard, Real Prop. 114, \\ 23, 24. 6 1 Washb. Real Prop. 216. • Evans v. Evans, 9 Barr, 190. * Ante, $ 23. 302 THE LAW OF DOWER. [CH. XIV. of a fee simple or a fee tail, absolute or conditional, which, by sub- sequent words, is made determinable upon some particular event, at the happening of which dower or curtesy will cease." "How to reconcile to any system of reason, technical, or natural, the exist- ence of a derivative estate, after the extinction of that from which it Was derived, was for him to show, and he has not done it. The case of a tenant in tail, says Mr. Preston, 1 ' is an exception arising from an equitable construction of the statute de donis, and the cases of dower of estates determined by executory devise and springing use, owe their existence to the circumstance that these limitations are not governed by common law principles.' 2 The mounting of a fee upon a fee by executory devise is a proof of that." "Before the statute of wills there was no executory devise, and before the statute of uses there were no springing uses." "It was to the benign temper of the judges who moulded the limitations of the estates introduced by them, whether original or derivative, so as to relax the severer principles of the common law, and among other things, to preserve curtesy and dower from being barred by a determination of the original estate, which could not be prevented." 33. A similar case was determined in Kentucky. A., the testator, devised a portion of his real estate to B., his wife, for life, and after her death the same property, together with certain other lands, to C, his son, in fee. But he directed that in case his son died in the lifetime of B., or subsequently to her death, without leaving issue, then the estate should go to the sisters of the testator and to the brothers of B. The son died without issue, in the lifetime of B. As to the lands devised to him immediately in fee his widow was allowed dower, upon the ground that her issue by him, had there been any, would have taken the estate by descent; but as to the lands in which the widow of the testator had a life estate no dower was allowed, the life estate not having terminated during the coverture. 3 34. In Milledge v. Lamar, 4 decided in South Carolina as early as i 3 Prest. Abstr. 373. 2 The Chief Justice does not complete the quotation. The following forms the concluding portion of the passage : "And when the limitation over was allowed to be valid against the former donee, it was on the terms that the limitation over should not impeach the title of dower of the wife of that donee." To this Mr. Park re- sponds: "The writer has not hitherto been so fortunate as to meet with the passages in the books from which this proposition is collected." Park, Dow. 183. 3 Northcutt v. Whipp, 12 B. Monr. 65. * Milledge v. Lamar, 4 Desauss. 617, 637. CH. XIV.] DETERMINABLE ESTATES. 303 1817, the same question -was adjudicated. In that case lands were given to Thomas Lamar and his heirs "without any condition, except that should the said Thomas die without any heirs of his body begot- ten, then, and in that case, the whole of the then remaining prop- erty should be equally divided among the children of his brothers." Thomas Lamar died without heirs of his body, but leaving a widow, who instituted proceedings for dower. Her claim was resisted upon the ground, mainly, that the estate of the husband was a fee simple conditional, of which, as it was contended, a wife is not dowable. But the court thought otherwise, Desaussure, Chancellor, delivering the opinion: "To the claim of dower," he observed, "it was objected that Thomas had not such an inheritable interest in the lands as entitled his widow to dower. But I am of opinion he had. The limitation is to him and his heirs ; but if he died without an heir of his body begotten, then over to his brother's children. If he had had an heir of his body, his children would have inherited. Now the text of Littleton is express, that where a woman taketh a hus- band seized of such an estate in tenements, &c, so that any issue she might have by him may, by possibility, inherit the said tenements of such an estate as the husband hath, she shall have dower. See Litt. § 53. As, then, the issue Mrs. Lamar might have had by the said Thomas might have inherited, she is entitled to dower. The widow of a tenant in tail, it was conceded, would be entitled to dower. And so, in my judgment, is the widow of a tenant in fee conditional at common law." Neither the court nor the counsel engaged ap- pear to have referred to Buckworth v. Thirkell, nor to any of the cases in which the question had been considered. The court seem to have relied, for the correctness of their conclusion, solely upon the text of Littleton, and the result, which, in their judgment, was fairly deducible therefrom. The decree rendered was afterwards unanimously affirmed in the Court of Appeals. 1 35. The case of Adams v. Beekman, 2 decided by Chancellor Wal- worth, in some of its features bears a strong resemblance to Barker v. Barker. 3 William Adams, by his will, devised the use of'his farm to his son, the husband of the complainant, and to his nephew, for the term of three years. He directed his executors, at the expira- tion of that time, and as soon thereafter as could conveniently be done, to sell the farm, and divide the avails among his five children. i Page 645. " Adams v. Beekman, 1 Paige, 631. s Supra, \ 29. 304 THE LAW OF DOWER. [CH. XIV. By a subsequent clause in the will it was provided that if any of his children died before the testator, leaving no children, the share of the child so dying should go to the survivors ; and also, in case any of them should die after his (the testator's) decease, leaving no chil- dren, and not having disposed of his or her share of the estate, the same should likewise go to the survivors ; but in case any of the tes- tator's children died, leaving children, then such children were to take the share of their parent in the same manner as such parent, if living, would have taken the same. The son died within the three years, leaving children, and the complainant, his widow. It was held that she was not entitled to dower. "By the death of the son during the term," said the chancellor, "and before the executors were author- ized to sell the farm and divide the proceeds, his interest was divested, and the executory limitation over to his children took effect. They are entitled to the share of the proceeds which would have belonged to him, if living. They do not take as heirs of their father, but as contingent legatees under the will. Their mother is not entitled to any part thereof, either as dower or under the statute of distribu- tions." In a later case the Supreme Court of New York refused to adopt what appears to be the prevailing doctrine of the decided cases, and dissented from the views expressed by Lord Mansfield in Buckworth v. Thirkell. A testator, by his will, which took effect prior to the Revised Statutes, devised as follows : "I give and devise to my two sons, Moses and Abraham, the farm I live upon, to have and to hold to them, their heirs and assigns forever, they supporting their mother thereon as above directed, and paying just debts and funeral ex- penses, to be divided as equal as may be, share and share alike. If either Moses or Abraham should die, and leave no lawful issue, then their portion or share of the land shall be equally divided between my son William, and the survivor of them." Moses died in 1850, leaving one child, and Abraham died in 1857, leaving a widow, but no issue. It was held that the limitation over to William was good as an executory devise; and that he was entitled to an estate in fee in the one-half of the land devised to Abraham exonerated from the dower of the widow of the latter. Upon this point the court re- marked as follows : " The widow takes her estate through the hus- band, but not from him, like one who inherits, for he can do no act which will divest her right. And when the estate of the. husband is determined by the happening of an event which defeats its further CH. XIV.J DETERMINABLE ESTATES. 305 continuance, the estate in dower must be determined with. it. It is a part of the same estate of freehold and inheritance of which the husband was seized, and to the extent of it, is so much abstracted from what would otherwise descend to the heirs at law. Abraham Weller, by the express words of the will, took an estate in fee, but by subsequent words, which I think operative and effectual, it. was made determinable upon his dying without issue at the time of his death. When that event happened, the wife's right to dower ceased with the estate out of which it could only proceed. This conclusion conflicts with Lord Mansfield's judgment in Buckworth v. Thirkell, (3 B. & P. 652.) It is the rule, however, given by Mr. Cruise in his treatise on the Law of Real Property, (tit. 6, Dower, ch. 3, § 33,) and is the rule maintained by Mr. Park with singular ability in his work on the Law of Dower, page 174." 1 36. There seems to be a marked distinction between a case where, by the terms of the limitation, the husband takes a fee simple estate, which, if he have issue living at his death, will descend to such issue, and which is limited over only in the event of his death without issue, and other cases of conditional limitation. Such a case is closely assimilated, in principle, to the natural determination of the estate for want of heirs generally, and there would seem to be no good reason why the husband's estate should not be so prolonged as to give the right of dower in the one case as well as in the other, par- ticularly as it is allowed to estates tail under similar circumstances, and also to conditional fees at common law. There seems to be an inconsistency in denying to the higher estate a right or interest which is annexed to the lesser. 2 Where the estate is defeasible by an event which has no relation to the death of the husband, but which may happen during the coverture, or at a period subsequent to his death, and which, therefore, might divest him of the estate during his lifetime, or deprive his issue of it after his death, it is manifest that the same reason for recognizing the claim of the widow does not exist. Indeed, to hold the wife dowable of such an estate after it was determined, would seem quite repugnant to principle. The infirmity in the estate of the" husband exists at its inception. The issue take it subject thereto. Their estate, as well as that of the widow, is derived through the grant or devise to him, and is a • Weller v. Weller, 28 Barb. 588. J See observations of Vice-Chancellor Stuart, cited ante, ? 30. VOL. I. 20 306 THE LAW OF DOWER. [CH. XIV. continuation of his estate; and if the estate of the heirs be defeated — as it clearly would be — by the happening of the event which deter- mines that of the husband — how, upon principle, is the interest of the widow to be exempted from the same consequence? Indeed, it may be fairly inferred, from the remarks of Lord Mansfield in Buckworth v. Thirkell, that he was disposed to distinguish between these two classes of cases. 1 The principle settled where the husband possesses a power of appointment, and has determined his estate by the exer- cise of the power, would seem to accord with this view. 2 "An estate liable to be determined by a springing or shifting use, is not, in sub- stance, distinguishable from an estate liable to be determined by the exercise of a power of appointment ; the effect is the same, whether the new use is to arise on the execution of the power, or on any other uncertain event taking place. In either case it arises from the orig- inal instrument, taking effect, in point of time, from the period when the event happens ; and since it has been settled that the right to dower is defeated by the appointment, it seems to follow that the same rule must prevail with respect to estates determined by shifting or springing uses." 3 37. In all the reported cases in which dower or curtesy has been allowed upon estates of this character, the estate was such that the issue of the wife, had there been any, would have been entitled to take by descent. In the cases in which it was denied, the issue could not have taken by descent. This was the nature of the estate in Sumner v. Partridge, 4 and Barker v. Barker. 5 In both these cases, as shown by the opinion of the Vice-Chancellor in the latter case, the issue took under the original limitation, as purchasers, and not by descent. They did not receive their estate from the mother, but from the original donor. 6 The effect of this construction of the lim- itation is not to defeat the estate of the wife, but, in the event of her leaving issue, to convert it, ab initio, into an estate in herself for life, with remainder in fee to such issue. Viewed in this light, it is clear that the husband could not be tenant by the curtesy, as a mere life estate is not sufficient to give either curtesy or dower. 7 38. In no case has it been held that where the limitation is of 1 Supra, \ 21. 2 See ante, \ 9 el seg. » App. No. II. by Jacob; 2 Roper, Husb. and Wife, 506, 507. * Supra, I 19. 6 Supra, \ 29. 6 Accord. Adams v. Beekman, 1 Paige, 631 ; supra, I 35. ' Post, ch. 17. OH. XIV.] DETERMINABLE ESTATES. 307 such character that the estate determines during the coverture, the wife is dowable. In order to sustain a claim to dower in such case, it would be necessary to hold that after the estate of the husband had ceased, and the party entitled under the limitation over had entered and enjoyed the premises, the former estate-should partially revive upon the determination of the coverture by the death of the husband. This would appear to be totally irreconcilable with principle. 1 In Flavill v. Ventrice, 2 the event which determined the husband's estate happened after his death, and the judges were equally divided upon the question as to whether his widow was entitled to dower. 1 Jacob's note, 2 Roper, Husb. and Wife, 502-7. 3 Ante, \ 18. CHAPTER XV. DOWER IN ESTATES IN REMAINDER AND REVERSION. \ 1-6. The general doctrine. 7, 8. Lands subject to prior right of dower. 9-18. Rule where the estate comes by descent. 19. Rule where the estate is acquired by devise. \ 20. Illustration of the doctrine. 21, 22. Release or extinguishment of the elder right. . 23-26. Rule where the estate is ac- quired by purchase. The general doctrine. 1. Estates in remainder or reversion, expectant upon an estate of freehold, are not subject to dower, unless the latter estate term- inate during the coverture, so as to confer upon the husband the right to the immediate freehold. This is a well-established principle of the common law. 1 2. In the United States the common law rule is generally adhered to, and it may be laid down as the American as well as the English doctrine, that no right of dower attaches upon reversionary estates. 2 i Supra, chap. 11, $ 5; Co. Litt. 32, a.; Perk. sees. 339, 340; Park, Dow. 49, 53, 54; 1 Roper, Husb. and Wife, by Jacob, 359; 1 Greenl. Cruise, 162, g 8; 4 Kent, 38-40; 1 Washb. Real Prop. 154, g§ 5, 6. 2 Eldredge v. Forrestal, 7 Mass. 253 ; Shoemaker v. Walker, 2 Serg. & Rawle, 554 ; Blood o. Blood, 23 Pick. 80 ; Fisk v. Eastman, 6 N. H. 240 ; Moore v. Esty, Ibid. 479 ; Williams v. Armory, 14 Mass. 20 ; Reynolds v. Reynolds, 5 Paige, 161 ; Safford v. Safford, 7 Paige, 259 ; Dunham v. Osborn, 1 Paige, 634 ; Bear v. Snyder, 11 Wend. 592 ; Green v. Putnam, 1 Barb. 500 ; Durando v. Durando, 23 N. Y. (9 Smith,) 331 ; S. C. 9 Amer. Law Reg. 630 ; Arnold v. Arnold,, 8 B. Mon. 204 ; North- cutt v. Whipp, 12 B. Mon. 65; Apple v. Apple, 1 Head, (Tenn.) R. 348; Beardslee v. Beardslee, 5 Barb. 324; Weir v Tate, 4 Ired. Eq. R. 264; Blow v. Maynard, 2 Leigh, 29; Cocke v. Phillips, 12 Leigh, 248; Otis v. Parshley, 10 N. H. 403; Gard- ner v. Greene, 5 R. Is. 104; Watkins v. Thornton, 11 Ohio State R. 367, as to cur- tesy ; Robison v. Codman, 1 Sumn. 121. In Kentucky it is held that this principle does not extend to reversionary interests in slaves. Arnold v. Arnold, 8 B. Mon. 204; Northcutt v. Whipp, 12 B. Mon. 65. (308) CH. XV.] ESTATES IN REMAINDER AND REVERSION. 309 It is elsewhere shown that an outstanding mere chattel interest is no impediment to dower, and the general proposition here stated is to be taken with that qualification. 1 3. While it is true, as a general rule, that the determination or surrender of the prior estate during the coverture will enable the inchoate right of dower to attach, 2 yet it is to be understood that such determination or surrender must take place while the husband is seized of the estate in remainder or reversion. If he alien the inheritance during the existence of the particular estate, the right of the wife to be endowed is thereby entirely defeated. 3 The result is the same if the particular estate be not determined during the lifetime of the husband. 4 4. In a case determined in Maine, the husband, while seized of a remainder expectant upon an estate for life, executed a mort- gage of the premises in fee. He died during the continuance of the particular estate. Upon a proceeding for dower instituted by his widow against the mortgagee, who had entered and was in possession of the premises under the mortgage, while the general doctrine de- nying dower to estates in remainder was recognized, it was, never- theless, decided, that as the mortgagee had taken and held possession under a conveyance which assumed to pass the entire fee simple es- tate, he was estopped to deny the seizin of the husband, and upon this principle the claim for dower was allowed. 6 But the New Hamp- shire courts have refused to extend this doctrine to cases where the tenant for life and the remainder-man have joined in a conveyance in fee. In one case arising in that State, in referring to Nason v. Allen, the court observed : " This case differs from the one now under consideration, inasmuch as the tenant here claims under a deed which was jointly executed by the husband and another ; and though possession was taken under this deed, he claims and relies entirely on the title and possession of the other grantor, to an ex- 1 Chapter 11, \\ 5, 11, 12. See the authorities there cited. 2 Vide chap. 11, \\ 13-15. 3 Eldredge v. Forrestal, 7 Mass. 253; Williams v. Armory, 14 Mass. 20; Otis v. Parshley, 10 N. H. 403 ; Shoemaker u. Walker, 2 Serg. & Rawle, 554 ; Dunham v. Osborn, 1 Paige, 634; Gardner v. Greene, 5 R. Is. 104; Hughes on Writs, 149;. Park, Dow. 54. * See chap. 11, j! 15; Dunham v. Osborn, 1 Paige, 634; Reynolds v. Reynolds, 5 Paige, 161 ; Weir v. Tate, 4 Ired. Eq. R. 264; Apple v. Apple, 1 Head, (Tenn.) R. 348 ; Perk. sec. 335. * Nason v. Allen, 6 Greenl. 243. 310 THE LAW OF DOWER. [CH. XV. tent that would preclude a right of dower on the part of the demand- ant. Such a joinder of different claimants, in a general conveyance, is of very frequent occurrence ; and if the tenant, notwithstanding the general nature of the deed, may be considered as entering and holding in accordance with the several titles of the grantors, then there can be no estoppel, except to prevent the denial of such hold- ing." 1 5. The Massachusetts Colony law of 1641 expressly gave dower in estates in remainder and reversion. It was so construed, how- ever, by limiting its operation to cases where the particular estate was less than a freehold, as to defeat the apparent purpose of the enactment. 2 In Ohio, by a recent amendatory act, dower is given in all real estate of which the husband, at his decease, held the fee simple in remainder or reversion. This provision, it is seen, is so worded as to enable the husband to convey the estate at any time during the coverture, free from dower. And a proviso annexed declares that dower shall not be assigned in such cases until after the termination of the prior estate. 3 The effect of this enactment is to change the common law rule requiring the particular estate to be determined during the coverture. 6. Mr. Crabb, in his work on Keal Property, states that the Dower Act of 3 & 4 Will. IV., chapter 105, 4 has abrogated the rule of the common law excluding dower from estates in remainder and rever- sion. 6 " As by the Dower Act," he says, "seizin is not necessary 1 Otis v. Parshley, 10 N. H. 403, 407. > See 4 Dane, 664; Stearns' Real Act. 2d ed. 279; ante, ch. 2, \ 6. The Maine statute of Feb. 19th, 1821, gave dower in estates "in possession, reversion, or remainder." Laws of Maine, (1821,) vol. i. p. 150, § 6. But this provision is no longer in force. See, also, Durham v. Angier, 20 Me. 242. s Act of March 27th, 1858 ; vol. lv. Ohio Laws, 24 ; 1 Swan & Critch. Stat. 516, \ 1. Judge Reeve is of opinion that the Connecticut statute, which allows dower only in such real estate as the husband dies possessed of, should be so construed as to em- brace estates in remainder and reversion. " I apprehend," he says, " that the pos- session of any tenant, which is not an adverse holding to the husband, would be a sufficient possession of the husband to entitle the wife to dower; and that, in allow- ing dower to the widow, the precise technical meaning of the word possessed has been disregarded. I should, therefore, suppose that the wife would be entitled to dower in the reversion, when the lease was to B. for life ; for such possession is not adverse to A." Dom. Rel. 57, 58. The editor of the second edition of Judge Reeve's work expresses the same opinion as to the construction to be given the Ver- mont statute. Ibid. note. * See Appendix. » 2 Crabb, Real Prop. 136 ; Ibid. 158 ; see, also, p. 132. CH. XV.] ESTATES IN REMAINDER AND REVERSION. 311 to give title to dower, that law can now apply only to women married before 1st January, 1834." 1 No reported case has yet appeared supporting this construction of the statute, and it may well be doubted whether it is the true construction. It would seem that the real purpose of the act was to dispense with a technical seizin of the legal estate as a requisite of dower, or to abolish the distinction between legal and equitable estates, and place them upon the same footing. Equitable estates are made subject to dower precisely as at common law legal estates were subject to that interest. But it has never been understood, at.least in the United States, that equitable estates in remainder and reversion are subject to dower, unless made so by express statute, and in one reported case it was expressly held that they are not. 2 Lands subject to prior right of dower. 7. Bos de dote peti non debet — " Dower ought not to be sought for out of dower" — is an old and familiar maxim of the law, 3 so closely related to the rule excluding dower from reversionary estates, that it is difficult to separate them. Indeed, the maxim may be regarded as the necessary and logical result of the rule itself, and as being founded upon the same principle. 4 8. A case put by Lord Coke, to illustrate the proper application of this maxim, is as follows : " If there be grandfather, father, and son, and the grandfather is seized of three acres of land in fee, and taketh wife and dieth, this land descendeth to the father, who dieth either before or after entry: now is the wife of the father dowable. The father dieth and the wife of the grandfather is endowed of one acre and dieth ; the wife of the father shall be endowed only of the two acres residue, for the dower of the grandmother is paramount the title of the wife of the father, and the seizin of the father which descended to him (be it in law, or actual) is defeated ; and now upon the matter, the father had but a reversion expectant upon a freehold, and in that case dos de dote peti non debet, although the wife of the i 2 Crabb, Real Prop. 186. 5 Shoemaker v. Walker, 2 Serg. & Rawle, 554. 3 It prevailed in the time of Glanville. Glanv. Lib. 6, c. 17 ; 1 Reeves' Hist. Eng. Law, 102 ; 1 Greenl. Cruise, 164, f the estate. In Elwood v. Klock 3 the release was made after action brought, but before any judgment or decree. It was held that the release neither operated as an assignment of the dower, nor as a conveyance of it to the grantee ; but that the right thereby became extinguished. In ac- cordance with this view, dower in the entire premises was allowed to the junior widow. 4 22. In Michigan it is provided by statute that where there are two claims of dower, and the prior right has been satisfied, with or without assignment, there shall be no dower to that extent during the lifetime of the first dowress. 5 The doctrine where the estate is acquired by purchase. 23. To the paragraph before quoted from Lord Coke, 6 the follow- ing observations are added : "And here note a diversity between a descent and a purchase. For, in the case aforesaid, if the grand- father had enfeoffed the father, or made a gift in tail unto him, there, in the case above said, the wife of the father, after the decease of 1 Reeve's Dom. Rel. 58 ; 4 Kent, 64, note. 2 Leavitt v. Lamprey, 13 Pick. 382. » Elwood v. Klock, 13 Barb. 50. * See, also, Atwood v. Atwood, 22 Pick. 283. ' 2 Comp. Laws Mich. 855, § 2802. 6 Ante, \ 8. CH. XV.J ESTATES IN REMAINDER AND REVERSION. 319 the grandfather's wife, should have been endowed of that part as- signed to the grandmother ; and the reason of this diversity is, for that the seizin that descended after the decease of the grandfather to the father, is avoided by the endowment of the grandmother, whose title was consummate by the death of the grandfather ; but in the case of the purchase or gift, that took effect in the life of the grand- father, (before the title of dower of the grandmother was consum- mate,) is not defeated, but only quoad the grandmother, and in that case there shall be dos de dote." 1 24. In the foregoing case, the father, or, in other words, the grantee, becomes seized of the estate by virtue of the grant, during the lifetime of the ancestor, the grantor. The seizin thus acquired can not be defeated absolutely by the seizin of the ancestor's widow, which, even by relation, can be carried no further back than the instant of the ancestor's death, and which, therefore, would leave the seizin of the heir intervening between the date of the grant and the period of the ancestor's death, wholly unimpaired and undis- turbed. Hence, if the grantee (the father, as the case is stated by Coke) were married at any time before the assignment of dower to the ancestor's widow, 2 the seizin thus existing would be sufficient to confer upon his wife a right of dower in the whole estate, subject only to the dower interest of the ancestor's widow. If the latter were endowed during the lifetime of the grantee, such endowment would operate as an interruption of his seizin in the particular lands set off, during the existence of her estate. If the grantee were to die during her lifetime, and after she had been endowed, then his widow would be dowable of the remainder of the estate, including the reversion of that portion before set off. If, before the assign- ment of dower to the ancestor's widow, the grantee should die, and his own widow be endowed, then the subsequent assignment of dower to the elder dowress would operate to interrupt the enjoyment of the other widow in a proportionate part, during the lifetime of the former, but no longer. 3 1 Co. Litt. 31, a. and b.; accord. Perk. sec. 315. 2 See ante, \ 11. 8 Park, Dow. 156; 1 Roper, Husb. and Wife, by Jacob, 382-4; 1 Cruise, Dig. 164 ; 4 Dane, Ab. 663 ; 1 Washb. Real Prop. 210, \ 29 ; Bustard's case, 4 Co. 122, a. ; Geer v. Hamblin, 1 Greenl. 54; Dunham u. Osborn, 1 Paige, Ch. 634; Durando v. Durando, 23 N. Y. (9 Smith,) 331; S. C. 9 Amer. Law Reg. 630; Manning v. Laboree, 33 Maine, 343 ; In the Matter of Cregier, 1 Barb. Ch. 598. 320 THE LAW OP DOWER. [CH. XV. 25. This point appears to have been involved in an early case found in the reports. 1 A grandfather gave lands to the father, in tail. The latter died, and his widow was endowed of the third part of the whole estate by his son. Afterwards the grandfather died, and his widow brought a writ of dower against the widow of the father. The latter vouched the son, by whom she had been endowed, and the question was as to how much she should recover against him in value ; whether a third of two parts, or a third of the whole ; it was adjudged that she should recover generally to the value which she lost, "for dower tolled the estate which by law descended, but not the estate acquired and gained by purchase." 2 26. But even in a case of purchase, if the grantee do not marry until after the assignment of dower to the grantor's widow, the maxim, dos de dote peti non debet, applies, and this upon the prin- ciple already stated, that the assignment converts the estate of the grantee into an estate in reversion in the lands assigned. 3 As to those lands, he would have no seizin during the coverture, (unless the grantor's widow should die in his lifetime,) of the present freehold estate. i Paris'a case, 5 E. 3, Vouch. 249 ; 4 Co. 122, a. 2 Park, Dow. 156, 157. See, also, Co. Litt. 31, b.; Perk. sec. 316. 3 Ante, 1 11. CHAPTER XVI. DOWER IN ESTATES IN JOINT TENANCY, COPARCENARY AND COMMON. \ 1-5. The rule at common law as to estates in joint tenancy. 6-12. Statutory modifications in the United States. \ 13-17. Dower in estates in coparce- nary and common. 18-33. Effect of sale in partition. The rule at common law. 1. The doctrine of the common law excluding dower from estates held in joint tenancy has already been adverted to. 1 It is thus stated by Littleton : "And it is to be understood that the wife shall not be endowed of lands or tenements which her husband holdeth jointly with another at the time of his death." 2 It is difficult to trace the origin of this rule. The earliest text-books in which it is laid down appear to be Fitzherbert's Natura Brevium and Eolle's Abridgment. 3 It is also found in the text of Brooke. 4 In the Na- tura Brevium, the 34 Edward L, "Dower," 179, is cited. Brooke cites and relies upon the 3d Henry IV., page 6 ; but all the treatises fail to give the particulars of these cases, or the reasoning upon which they were determined, stating simply the naked point decided. Chief Baron Gilbert has supposed the rule to be referrible to feudal principles: "In that case of joint tenancy," he says, "during the joint seizin, the wife's contract of dower can never attach upon the estate, because the other joint tenant comes in by the feudal con- tract, superior to the marriage contract ; so to the wife's infeudation ;: for though the marriage contract had been prior to the joint tenancy, yet it will not attach upon it, because the estate in joint tenancy is i Chap. 12, H 33-35. > Litt. g 45. 8 Fitzh. N. B. 147, (E.); Ibid. 150; 1 Roll. Abr. 676. * Bro. Dow. pi. 30. The point is also decided as to curtesy, in Cowley v. Ander- son, Toth. 83. vol. I. 21 ( 321 ) 322 THE LAW OF DOWER. [CH. XVI. so created that it should survive. Et cujus dare ejusdem disponere; therefore, though the marriage were precedent, yet it can not take place upon this infeudation." 1 Lord Coke's explanation of the rule is in these words : " The reason of this diversity is for that the joint tenant, which surviveth, claimeth the land by the feoffment, and by survivorship, which is above the title of dower." 2 2. So long as the rule is confined within the limits fairly implied in the text above quoted from Gilbert and Coke, the reasoning upon which it proceeds is very easily understood. As against the sur- vivor, it is plain there can be no dower, because, from the very nature of the estate, and by virtue of the original grant, the entire interest becomes absolutely vested in him upon the death of the cotenant. The rule, however, as established, goes much further than this, and not only denies dower as against the survivor, but absolutely pre- cludes it from attaching during the existence of the joint estate. The principle upon which this extreme doctrine rests is not entirely obvious. There is no essential quality in a joint estate necessarily incompatible with the existence of an inchoate dower interest, and by analogy to the cases of estates determinable by condition, 3 or by title paramount, it would seem perfectly consistent with principle to hold that the right of dower attaches upon such estate, subject only to be defeated by the survivorship of the. cotenant of the husband. 4 But the doctrine of the common law is too well settled to be shaken at the present day ; 5 and, indeed, is carried into the dower act re- cently adopted in England. 6 3. One consequence resulting from this rule is, that if the husband sever the joint estate by conveying his share to a third person, the right of dower is thereby entirely defeated. 7 Ordinarily any act which determines the joint tenancy during the lifetime of the hus- i Gilb. Uses, 404. ' Co. £itt. 37, b. » Supra, ch. 14, || 3-5. * Park, Dow. 38. 6 Lift. sec. 45; 1 Roll. Abr. 676; Fitzh. N. B. 147 (E.) and 150; Bro. Dow. pi. 30; Co. Litt. 31, b.; Cowley v. Anderson, Toth. 83; Sutton v. Rolfe, 3 Lev. 84; 1 Roper, Husb. and Wife, by Jacob, 367; Perk. sec. 334; Park, Dow. 37, 40; Watk. on Conv. 42; 3 Prest. Abstr. 367; Burton, Real Prop, g 353; 4 Kent, 37; Mayburry v. Brien, 15 Peters, S. C. R. 21 ; Hamblin v. Bank, &c, 19 Maine, (1 Appl.) 66 ; see ch. 12, I 33 et seq. e 3 & 4 Will. IV., ch. 105, Code, 1852, \ 1312 ; Parsons s. Boyd, 20 Ala. 112. » Comp. Stat. 1853, ch. 135, \ 2. 12 Nixon, Dig. 1855, p. 127, \ 34. By construction conveyances to husband and wife are excepted ; Den v. Hardenbergh, 5 Halst. 42. » Dorsey's Laws, let ed. p. 784, ch. 162; 1 Maryl. Code, p. 350, g 12; see Purdy v. Purdy, 3 Md. Ch: Decis. 547. " Code, 1851, ch. 78, I 1206 ; Revision of 1860, chap. 95, art. 1, \ 2214. " Cobb, New Dig. 1851, pp. 293, 545. " Code, 1858, \ 2010. » Oldham & White, Dig. 1859, p. 245, art. 1037. i 8 Thompson's Dig. 1847, p. 191, Davis v. Logan, 9 Dana, 185; Weir v. Tate, 4 Ired. Eq. R. 264; Reed «. Ken- nedy, 2 Strobh. (S. C.) 67; James v. Rowan, 6 S. & M. 393; see 4 Kent, 37, note; 1 Washb. Real Prop. 157, g 9 ; 1 Hilliard, Real Prop. 2d ed. 568, H 43, 45, and note ; McMahan v. Kimball, 3 Blaokf. R. 13, note (2.) In Hamblin v. Bank, &c., 1 App. 66, the common law principle excluding dower from joint estates was re- cognized by the court. So in Mayburry i>. Brien, 15 Pet. 21. 8 Sutton v. Rolfe, 3 Levinz, 84. CH. XVI.] ESTATES IN JOINT TENANCY, ETC. 327 in common was resisted upon the ground that the wife of a tenant in common was not dowable until after partition made ; but the court overruled the objection, and gave judgment for the demandant. The doctrine of this case is now firmly settled, and the rule is that dower will be set off in common, unless during the lifetime of the husband his share has been set apart to him in severalty by partition, in which event the dower of the widow will be restricted to, and it is her right to have it assigned in the portion so set apart. 1 A voluntary parti- tion, if the division be fairly made, and no fraud is practiced on the wife, will have the same effect, in this particular, as a partition by virtue of legal proceedings. 2 But in proceedings in partition, unless the wife be made a party, it is necessary, in order to limit her claim to "endowment, that partition be actually made. Where she is not a party to the proceedings, she is not barred by a mere decree for partition which is not executed in her husband's lifetime. 3 14. In Davis v. Logan, 4 certain parties made a parol partition of the estate which had descended to them from their ancestor. Lot eight, as designated in the plat of division, fell to John Logan, who was then married. He subsequently sold this lot to one Davis. Afterwards the whole estate was conveyed to William Logan, one of the heirs, in trust, to make sales. He conveyed lot eight, with certain other parcels, to the same Davis who had originally pur- chased from John, describing in the deed the boundaries of the entire tract, but without showing the particular location or extent of a por- tion of the parcels thus conveyed. After the death of John, it was held that his widow was entitled to dower out of lot eight in the tract sold to Davis. 15. In Rank v. Hanna, 5 the husband was seized in fee of an un- divided interest in lands, which he sold, and the purchaser and his cotenant, in the husband's lifetime, made voluntary partition, and confirmed the same by deed. It was held that the widow might i Litt. sec. 44, 45; 1 Roll. Abr. 674; Perk. sec. 310; Park, Dow. 42, 153; Tud. Cas. 46 ; Potter v. Wheeler, 13 Mass. 504 ; Wilkinson v. Parish, 3 Paige, 653 ; Tot- ten v. Stuyvesant, 3 Edw. Ch. 500; Dolf v. Basset, 15 John. 21 ; Jackson v. Edwards, 22 Wend. 498 ; Mosher v. Mosher, 32 Maine, 412 ; 1 Washb. Real Prop. 158, g 10 ; 1 Hilliard, Real Prop. 180, \ 12. Mr. Dane refers to a case in which dower was allowed in jiff w °' tne g reat sheep pasture in Nantucket. 4 Dane's Abr. 674. » 1 Hilliard, Real Prop. 180, \ 12 ; Totten v. Stuyvesant, 3 Edw. Ch. 500. But Bee Rank v. Hanna, 6 Ind. 20 ; post, \ 15. • Wilkinson v. Parish, 3 Paige, 653. * Davis v. Logan, 9 Dana, 185. * Rank v. Hanna, 6 Ind. 20. 828 THE LAW OF DOWER. [CH. XVI. have her dower assigned out of the whole undivided estate as if no partition had been made. 16. It is held in New Jersey that a parol partition will not conclude the wife, even though made under such circumstances as will bind the husband ; nor is the question affected by the fact that possession is taken in severalty under the partition, and maintained for a series of years. The widow is, notwithstanding, dowable of her husband's proportion of the whole land. 1 17. If, after partition made of lands held in coparcenary, one of the coparceners be evicted by title paramount, he may recover a pro- portionate share of the premises set apart to the husband, discharged of the claim of dower. In such case the common estate is dimin- ished by the eviction, and as the estate of the coparcener who re- covers pro rata has relation" to the time of the death of the ancestor, it follows that to the extent of his recovery the right of dower is overreached and defeated. 2 Effect of sale in partition. 18. The statutes of most, if not all the States, provide for the sale of lands held in common, where, upon proceedings for partition, it is ascertained that a division can not be made without serious det- riment to the estate. In such cases the money arising from the sale is brought into court, and distributed to the several tenants in com- mon in proportion to their respective interests in the common prop- erty. From these statute regulations has sprung a question of great interest and importance, namely, whether a sale made in conformity thereto operates to divest the contingent right of dower of the wife of a cotenant, and to pass the entire estate absolutely to the pur- chaser ; and if so, whether, for that reason, it is proper that the court under whose direction the sale is made, should require a portion of the husband's share of the proceeds of the sale to be invested for her benefit in case she should survive him, and her right thus become absolute. 19. Upon the first point, Vice-Chancellor McCoun, of New York, i Lloyd v. Conover, 1 Dutch. 47; Woodhull v. Longstreet, 3 Harr. 405. See, also, Lee v. Lindell, 22 Misso. 202, 206. 3 Perk. see. 310; Park, Dow. 153. CH. XVI.] ESTATES IN JOINT TENANCY, ETC. 329 has twice expressed the opinion that a sale so made does not divest the inchoate right of dower, 1 and one ground upon which he bases this conclusion is, that the courts possess no power to compel the wife to accept a provision in money in lieu of her interest in, and consequent right to, the enjoyment of the land itself. "Where an actual partition is made," he observes, "it has not the effect of divesting the right, for the right remains unimpaired, though it attaches itself to the land set apart to the husband in severalty. But where a sale, instead of an actual partition is found to be neces- sary, it is supposed by the complainant's counsel that the right or interest of the wife, as well as the title of the husband, passes, and that the purchaser will hold the land free of dower. The statute in relation to partition proceedings has not so declared in terms ; and if such had been the intention of the legislature, it appears to me there would have been some provision in the law for securing the fund or proceeds belonging to the husband, or some portion of it, at least, for the benefit of the wife in the event of her survivorship; but no such provision is made. Where there is an estate in dower, or by the curtesy, the statute is explicit in its directions, and the powers of the court are declared. (2 R. S. 325, § 50 to 55.) How can these provisions be applied to the case of a mere contingent or inchoate right? The practical effect, as it seems to me, would be rather- ludicrous ; since it would be converting a wife into a widow during the husband's life. Then, has the court power, independently of any statutory authority, to deal with the proceeds of the husband's share, and to compel him to make a settlement upon his wife, in the event of her surviving him, in lieu of her dower in the lands sold ? Cases do frequently occur where the Court of Chancery has jurisdic- tion to control a husband in the exercise of his legal rights in respect to the wife's property until he shall make a settlement upon her ; but in a case like the present, the control must be had over the wife, to compel her to accept a provision in money instead of the use of the land, which the law leaves to her own free choice. Here lies the difficulty; as the law stands, the court can not compel her to accept a settlement in lieu of dower, though it should undertake to coerce the husband into a settlement upon her. The statute in relation to dower expressly gives the wife an election in many cases, and the 1 Matthews v. Matthews, 1 Edw. Ch. R. 565 ; Jackson v. Edwards, 7 Paige, 386, 390, 391. 330 THE LAW OF DOWER. [CH. XVI. sixteenth section (1 R. S. 742) is more explicit, that no act or deed, or conveyance, executed or performed by the husband without the assent of his wife evidenced by her acknowledgment thereof in the manner required by law to pass the estates of married women, and no judgment or decree, confessed by, or recovered against him, shall prejudice the right of his wife to her dower, or preclude her from the recovery thereof. How, then, can the courts say that the act of the husband in subjecting his wife to a partition suit, or that a judgment or decree rendered therein without her assent evidenced in the man- ner pointed out, is to have the eifect of barring her right ; or that she shall accept a pecuniary or any other provision in lieu of her dower? Her assent appears to be absolutely necessary; and if she is competent in law, and willing to give such an assent, let her give it by uniting with her husband, in a release duly executed and ac- knowledged. It is, after all, a conventional matter between them, whether she has been made a party to the suit or not." 1 20. Upon appeal, the Chancellor (Walworth) was of a different opinion. "That it was the intention of the revisers," he observed, after referring to certain amendments to the act relating to parti- tion, "to enable the courts to give to a purchaser under the judgment or decree, when a sale of the premises was found to be necessary, a perfect title as against every future or contingent interest in any undivided share of the property, is evident from the note which they appended to the new provisions introduced by them in relation to incumbrances on such shares. Indeed, without such a power, it would be very difficult to make the partition equal in the case of a sale ; as a contingent right of dower or other defect in the title as to one share in the property must, upon a sale, necessarily diminish the amount bid for all the shares collectively. The same difficulty, there- fore, would exist in determining the value of a wife's inchoate right of dower in the undivided share of her husband, for the purpose of dividing the proceeds of the sale among the different tenants in com- mon according to equity, as is apprehended by the counsel to exist in makiDg a suitable provision for this contingent right of the wife, out of the whole of the proceeds of her husband's share of the sale, if she chose to insist upon her right to such a provision. And, in addition to that, the fact that the title in the hands of the purchaser i Jackson v. Edwards, 7 Paige, 391, 392. See, also, the reasoning of the Vice- Chancellor in Matthews v. Matthews, cited supra. CH. XVI ] ESTATES IN JOINT TENANCY, ETC. 331 would be incumbered with a contingent right of dower of a feme covert, in an undivided share of the premises, which might subject the owner to future expense and litigation, would diminish the value of the property in the hands of the purchaser to more than double the actual value of such contingent right. I can not believe that the legislature intended to leave this contingent interest, or inchoate right of dower of the wife of a tenant in common, an incumbrance upon the title in the hands of a purchaser, any more than that it was intended that a similar contingent interest of the husband in the wife's property should remain an incumbrance thereon. Although the husband has a present interest in his wife's real estate from the time of the marriage, for the joint lives of himself and wife, he is not even a tenant by the curtesy initiate, so as to give him an estate for his own life in the premises, until the birth of issue. And I believe it has never been doubted that a sale in a partition suit, to which he was a party, either under the act of 1813 or under the provisions of the revised statutes, would have the effect, not only to divest his present estate in the property during the joint lives of both, but also to bar his contingent interest in the property for the remainder of his life, after the death of his wife, in case he should afterwards have issue and survive # her. Yet I have not been able to find any pro- vision in the revised statutes which can reach such a case which is not equally applicable to the wife's inchoate right of dower in the husband's estate." 1 21. The Chancellor also referred to the provisions of the revised statutes to show that it must have been the intention of the legisla- ture to bar all future and contingent rights in the premises by a sale in partition, so as to give a perfect title to the purchaser : " The fifth section of the title of the revised statutes relative to the parti- tion of lands, (2 R. S. 318,)" he said, "requires the" plaintiff, in his petition, to set forth the rights and titles of all persons interested in the premises, so far as is known to him, including the interest of any tenant for years, for life, by the curtesy, or in dower, and the persons entitled to the reversion, remainder or inheritance after the termination of any particular estate therein, and every person who, by any contingency contained in any devise, grant, or otherwise, may become entitled to any beneficial interest in the premises. This lan- guage is certainly broad enough to include the contingent right of > Pages 406-8. 332 THE LAW OF DOWER. [CH. XVI. dower of the wife of one of the tenants in common, as well as other future or contingent interests. And the next section authorizes every person having such an interest as is mentioned in the fifth section, whether the same is in possession or otherwise, and every person entitled to dower in such premises, if the same has not been admeasured, to be made a party to the suit. The special provision in relation to dower was inserted in this section to reach the case of a dowress who was entitled to an estate as tenant in dower in the whole premises ; as the Supreme Court had decided that the pro- visions of the revised law of 1813 did not reach the case of a dow- ress whose husband was not a tenant in common of an undivided share of the estate. (See Coles v. Coles, 15 John. Eep. 319.) The language of the seventh, tenth, eleventh, twelfth and thirteenth sec- tions of this title as originally passed, is equally comprehensive with the fifth ; and show that it was the intention of the revisers and of the legislature that the owner of every future and contingent interest, whether known or unknown, as well as the owners of the present interests, should be made parties to the suit ; and that their several rights and interests should be ascertained and settled by the court before a judgment or decree for a partition or a sale of the premises should be made. By the 61st section, the conveyance which is directed to be executed by the commissioners, under a judg- ment for sale of the premises, is declared to be a bar both in law and equity against all persons interested in the premises in any way, who shall have been named as parties in the proceedings : and as against all such persons or parties as were unknown, if notice of the application for partition shall have been given by publication as directed by the statute ; and as against all other persons claiming from such parties, or either of them. And by the 84th section, the same force and* effect is given to a master's deed, under a sale by virtue of a decree of this court. I am, therefore, compelled to de- clare that the opinion of the Vice-Chancellor in this cause, and in the case of Matthews v. Matthews, (1 Edw. Ch. Rep. 565,) as to the effect of a sale in partition upon the inchoate right of dower of the wife of a tenant in common, who has been made a party to the suit in conjunction with her husband, is erroneous; and that a purchaser' under the judgment or decree will be protected against any future claim on her part, both in equity and at law." 1 i Pages 410, 411. CH. XVI.] ESTATES IN JOINT TENANCY, ETC. 333 22. The Chancellor also held, contrary to the opinion expressed by the Vice- Chancellor, that the court was authorized, and indeed required, to ascertain the present value of the wife's contingent right of dower in the husband's share of the proceeds of the sale, and to direct it to be invested for her benefit. This, he appeared to think, was the necessary result of his conclusion, that by the sale, the lands became discharged of her dower. His views upon this point are thus stated : " If, in either case, there should be such a disagreement be- tween the husband and the wife as to render it necessary for the court, in providing for- the legal rights of each, to settle their pro- portion of the proceeds of the sale, and if there was no other way to protect their rights than to ascertain the present value of the con- tingent interest of the husband or wife in such proceeds, it would be much easier to ascertain the present value of the wife's contingent right of dower than to ascertain the value of the husband's chance of becoming a tenant by the curtesy, not only by surviving his wife, but also by becoming the father of a child by her. Indeed, the annuity tables have furnished the court with the means of ascertain- ing the probable value of the wife's contingent right of dower during the life of the husband. These tables show the value of annuities which depend, not only upon the continuance of single lives of dif- . ferent ages, but upon the continuance of two or more joint lives. The proper rule for computing the present value of the wife's con- tingent right of dower, during the life of the .husband, is to ascertain the present value of an annuity for her life, the value of a similar annuity depending upon the joint lives of herself and her husband; and the difference between those two sums will be the present value of her contingent right of dower. (McKean's Pr. L. Tables, 23, § 4; Hendry's Ann. Tables, 87, Prob. 4.) Should it be necessary, in the case of an infant, or an adult wife, for the court to protect her con- tingent right of dower upon a sale under a decree in partition, where the value of the husband's undivided share of the estate was such as to render it proper, the present value of that contingent right may be ascertained in that manner. And the amount may be invested in the trust company, or in a savings' bank, in the name of the regis- ter, to accumulate for her benefit during the joint lives of herself and her husband ; so that the whole accumulated fund may then be paid over to her, or her personal representative, at that time, in full of her share in the proceeds of the sale. Her rights may also be effect- ually protected by directing the whole proceeds of the husband's 334 THE LAW OF DOWER. [CH. XVI. share to be paid to him, upon his giving security to the register or clerk, that the interest or income of one third of such proceeds shall be paid to his wife after his death, during the term of her natural life, if she survives him." 23. "Although," he adds,' "the revised statutes have given spe- cific directions as to the mode of ascertaining and securing the shares of the proceeds belonging to the tenants in dower and by the curtesy, and other tenants for life having present estates in possession in the premises, there is still a large class of future estates, both vested and contingent, in lands which may be sold under -judgments and decrees in partition, that are not embraced in those specific directions. In all such cases it will be the duty of the court to ascertain and settle the value of such future estates and interests upon just and equitable principles, and to make such order as may be necessary for the pro- tection of the shares of the fund which may belong to the persons who then are or may thereafter be, the owners of such future estates or interests, in analogy to the express provisions of the statute rela- tive to the shares of parties who have present estates for life in pos- session. I can not, therefore, concur in the opinion of the Vice- Chancellor, that the neglect of the legislature to make a specific provision for the ascertainment of the value of the wife's contingent right of dower, and to secure the same for her benefit, is any evi- dence that it was intended to leave that, or any other future or con- tingent interest of a party to the suit, as an incumbrance upon the title of a purchaser under the judgment or decree." 1 In conformity to these views an order was made requiring the wife's contingent interest in the fund arising from the sale, to be secured to her. 2 The case, however, was subsequently carried to the Court of Errors, and was finally decided on other grounds, the mem- bers of that court differing upon the question as to whether the inchoate right of dower was divested by the sale. 3 24. In Wilkinson v. Parish, 4 pending proceedings for partition, one of the parties died. The Chancellor held that in order to make a perfect title to a purchaser, in case it became necessary to sell the premises, the widow of the deceased tenant in common must be made a party. "The widow," he said, "does not take her dower as the i Pages 408-10. » g ee page 413< 3 Jackson v. Edwards, 22 Wend. 498. * Wilkinson v. Parish, 3 Paige, 653. CH. XVI.] ESTATES IN JOINT TENANCY, ETC. 335 representative of the husband, or by descent from him. She takes it by a title which is prior in point of time, to the commencement of this suit, and which can not be affected by any act of the husband, or by any proceedings in a suit to which she was not a party. By the marriage, the wife becomes entitled to a life estate in one third of the real estate of the husband, after his death, provided she sur- vives him. She is therefore in the situation of a contingent remain- der-man whose estate becomes vested by the death of a party to the suit upon whose death without issue the contingency depends. . . . In the case of Wilde v. Jenkins, which came before this court in March last, upon an application to overrule, as frivolous, a demurrer of the widow to a bill of revivor filed against her, it was decided that the wife's right to dower could not be affected by a suit against her husband to which she was not a party." So in Van Gelder v. Post, 1 it was held by the Vice-Chancellor that a sale in proceedings at law for partition, where the wife is not a party, will not bar her right of dower. "It appears to me impossible," he said, "that such a proceeding can bar her dower, any more than a simple alienation by the husband would have done. It is true that the statute declares the sale and conveyance by the commissioners to be a bar against the owners and all persons claiming by, from, or under them, or any or either of them ; 2 yet it could not have been intended to affect a wife's right to dower — who, according to my understanding of the law as it exists, and always has existed in this State, can not be deprived of this right except by a voluntary act of her own." 3 25. The following case, bearing, in some degree, upon this sub- ject, was determined in Maryland: The wife of one of the joint owners of lands united with her husband as complainant in a bill for partition. The property was sold under a decree upon such bill. It was held that the purchaser took the lands discharged of dower. "It is by no means certain," the court remarked, "even prior to the act of 1839, ch. 23, a sale under such a decree for partition would not bar a 'potential ' or inchoate right of dower in the wife of one of the joint owners of the land. But conceding that such a sale would not have barred her right to dower in the property after her hus- i Van Gelder v. Post, 2 Edw. Ch. 577. 2 1 Kent & Radcliff's ed. Laws, 542. 8 Accord. Lambert on Dower, 143. For the present New York statute regulating sales in partition where there is an inchoate dower interest in the premises, see post, \ 30. 336 THE LAW OF DOWEB. [CH. XVI. band's decease, if the sale had taken place before the act, there can be no doubt that under like circumstances occurring since the year 1839, she can not demand dower of the purchaser, inasmuch as the act referred to provides that a decree may be passed directing a sale of land, or real estate held jointly, or in common by two or more persons, and that a sale under such a decree shall pass to the pur- chaser all the interest and estate of all persons who are parties to the suit, either complainants or defendants; and also further pro- vides that 'if any feme covert, by marriage with one of the joint tenants, or tenants in common, shall have acquired a potential right of dower in part of the estate to be sold, such right of dower is hereby expressly declared to be within the power of the court or judge to decree the sale, she being made a party to, the proceedings, either complainant, or defendant.' . . . When the sale was made and rati- fied, any inchoate or possible dower right of Mrs. Warren in the land, to which she may previously have been entitled, was trans- ferred to the proceeds of the sale, out of which the court had full power to provide for any legitimate claim on account of dower. And if the proceeds were not correctly distributed by the court, the purchaser would not be held responsible for an error of that kind." 1 26. In Missouri it has been held that a widow's dower is divested by a sale in partition during the coverture, although she is not joined with her husband as a party. "It may be," the court said, "that as between the husband and wife the law should haVe provided some security for her dower out of the proceeds of the sale, but that such failure should be visited on the purchaser, would be a great hard- ship. The omission to make it could, on no principle, vary the nature of the proceeding, and make that of no force which was before binding." 2 27. This question was also recently considered in Ohio. A sale had been made on proceedings in partition, and after the death of one of the cotenants, his widow instituted proceedings for dower against the grantee of the purchaser at the sale. The statute regu- lating the partition of lands in Ohio, in force at the time the sale was made, differed materially from the New York statute before referred to. The latter act, as has been seen, required all persons i Warren .v. Twilley, 10 Maryl. 39. » Lee v. Lindell, 22 Miaso. 202, Leonard, J., dissenting; S. P. Sire t>. City of St. Louis, Ibid. 206. CH. XVI.] ESTATES IN JOINT TENANCY, ETC. 337 having any contingent interest in the premises to be made parties to the proceeding. 1 The Ohio statute, on the other hand, simply directed that each joint tenant, coparcener, or tenant in common, and any widow entitled to dower in the lands should be made defendants to the petition. 2 The statute did not require, nor in the case referred to had the wife been made a party to the proceeding in which the sale was made. The court, nevertheless, held that the inchoate right of dower was extinguished by the sale. 3 28. "The question before us," the court observed, "is one of legis- lative intention. Did the General Assembly, in providing for the sale of estates in proceedings in partition, intend that the entire estate should pass to the purchaser divested of a wife's inchoate right of dower? In seeking for the intention of the legislature on this point, and in the absence of any clear and decisive expression of that inten- tion in the language of the statute, it seems to us that the maxim, argumentum ab inconvenienti plurimum valet in lege, very properly and forcibly applies ; for, ' if the words used by the legislature have a necessary meaning, it will be the duty of the court to construe the clause accordingly, whatever may be the inconvenience of such a course. But unless it is very clear that violence would be done to the language of the act by adopting any other construction, any great inconvenience which might result from that suggested may certainly afford fair ground for supposing that it could not be what was contemplated by the legislature, and will warrant the court in looking for some other interpretation.' Broom's Legal Maxims, 140, 141. "To apply this maxim to the case before us, let us suppose two coparceners, each the owner of an equal undivided half of an estate inherited from a common ancestor. One of them has a wife; the other is unmarried. One of them petitions for partition of the com- mon estate, which is found to be incapable of actual partition, and is ordered to be sold. It is understood to be the settled law that the inchoate right of dower of the wife is not divested by the sale. The consequence is, inevitably, that the estate must be sold for much less than it would otherwise have brought. Yet, on the distribution of ' Vide opinion of Walworth, Chancellor, cited ante, \\ 20, 21. 2 Act of February 17, 1831, 29 Ohio Laws, 254; Swan's Stat. ed. 1841, p. 613, sections 2, 13. 3 Weaver v. Gregg, 6 Ohio St. R. 547. vol. i, » 22 388 THE LAW OF DOWEE. [CH. XVI. the proceeds of the sale, the husband comes in for an equal share; and the loss consequent on the existence of the contingent incum- brance, falls alike on the unmarried and married coparcener. This is a necessary result, and it is not only inconvenient, but grossly unjust ; too inconvenient and too unjust to permit us to suppose it to have entered into the intention of the legislature. "We are of opinion, therefore, that it was the intention of the legislature, by a sale in partition, to divest the wife of her inchoate right of dower. In so holding, we do not subject this right at all to the will or caprice of the husband. The sale is the act of the law, designed to do justice to joint owners, and render estates available, and put forth only when, from the fact that the estate is incapable of actual partition, the necessities of the case require it. The legis- lature has deemed it more important to the public interest to render estates available to their owners without sacrifice of their value, by a sale, in case of necessity, than to preserve in all cases whatsoever, the wife's remote and contingent interest, at the expense of parties on whom she can have no proper claim. " On the whole," they add, " our view of the question is this : The right of dower in the wife subsists in virtue of the seizin of the hus- band ; and this right is always subject to any incumbrance, infirmity or incident, which the law attaches to that seizin, either at the time of the marriage, or at the time the husband became seized. A liabil- ity to be divested by a sale in partition, is an incident which the law affixes to the seizin of all joint estates ; and the inchoate right of the wife is subject to this incident. And when the law steps in and divests the husband of his seizin, and turns the realty into person- alty, she is, by the act and policy of the law, remitted, in lieu of her inchoate right of dower in the realty, to her inchoate right to a distributive share of the personalty into which it has been trans- muted." 29. This reasoning addresses itself to the understanding with great force and cogency, and tends strongly to support the conclusion to which the court arrived. In the case supposed by the court, the injury resulting from a sa.le, subject to the contingent right of dower of the wife of one of the cotenants, is very evident. At the same time it does not seem perfectly clear that, from these ad- mitted premises, a general rule should be deduced which is to be made applicable to all cases alike. In many cases the inequality suggested by the court has no existence in fact. The argument, ah CH. XVI.] ESTATES IN JOINT TENANCY, ETC. 339 inoonvenienti, applies with much force, where a part, only, of the coparceners are married, but in the view taken by the court, this maxim would seem to have no application, if the parties, in this respect, all stand upon an equal footing. The mind instinctively feels that it is a hardship upon the wife to deprive her of her right of dower against her consent, and without any fault on her part, even though the deprivation be the result of a purpose to do justice to another. Nor can we entirely divest ourselves of the impression that thereby the rights of one person are sacrificed, in order that those of another — in no degree, perhaps, more meritorious — may be protected and preserved. Where there is no inequality in respect of the coverture of the parties, the rule divesting the wife of her dower would seem to operate still more harshly. And it may be remarked that instances may not unfrequently occur in practice where a cotenant would be subjected to the consequences of a de- preciation produced by a sale of the common property subject to an inchoate right of dower, and where it would hardly be claimed that such right was impaired by the sale. For example, if two coparce- ners, one of them married and the other unmarried, should unite in a mortgage of their lands, the wife not joining, and the premises were afterwards brought to sale by proceedings in foreclosure, the interest of the unmarried coparcener would be affected by the con- tingent incumbrance precisely in the same manner as in the case supposed by the court in Weaver v. Gregg. So if the joint estate were taken in execution and sold for the satisfaction of a joint debt. The liability to depreciation for this cause seems an inseparable incident of estates held in coparcenary or common. 30. It is manifest, however, that in proceedings in partition, the interests of all parties would be promoted by a sale free from the incumbrance of dower. An uncertain and contingent interest of this character would undoubtedly affect the market price of the property to an extent greatly disproportioned to the actual value of that inter- est. This consequence may be avoided, and the rights of all parties preserved, by extending to the wife, in all cases where she desires it, the protection suggested by the chancellor in Jackson v. Edwards. 1 Upon this point, the court, in Weaver v. Gregg, were not called upon to make any order, as that case was a simple proceeding for dower in the lands, instituted at a period long subsequent to the sale and i Supra, \\ 22, 23. 340 THE LAW OP DOWER. [CH. XVI. the distribution of its proceeds. The opinion of the court, however, contains what may be construed to be an intimation against the pro- priety and legality of the course pointed out by Chancellor Walworth. After observing that the statute under which the sale was made directed that the proceeds of the sale should be distributed by order of the court in which the proceeding was had, to and among the several parties entitled to receive the same, in lieu of their respective parts and proportions of the estate or estates, according to their just rights and proportions, they add: "Now, in .case of a sale as pro- vided for in this statute, where the husband is the owner of the fee, and the wife has but a contingent right of dower, how, and to whom, is this distribution of the proceeds of the sale of the estate made ? Always, in practice, so far as we know, it is made to the husband, and to him alone. And we think properly; for he is the sole repre- sentative of the estate. She has a contingent possibility of interest in it, which may be released, but no property, no actual interest in it which is the subject of grant or assignment. Miller's Adminis- trator v. Woodson, 14 Ohio Rep. 518. Nor is the value of her pos- sible and contingent interest capable of estimate with any degree of accuracy. Moore v. Mayor, etc of New York, 4 Selden, 110. And, on this point, we may consider the rule of distribution as settled by the universal and unvarying practice." 1 This reasoning would seem to apply, with equal propriety, to any contingent interest. A con- tingent remainder is no more the subject of grant than a contingent l'ight of dower. And its value is equally incapable of accurate esti- mate. But it is hardly to be supposed that for this reason a court of equity, upon a sale of real property under its direction, would wholly disregard an interest of that character. The present value of a contingent right of dower would seem to be just as capable of ascertainment as the present value of the absolute right after the death of the husband. In either case the estimate depends mainly upon results to be derived from tables of mortality, and in either case, also, these results are equally problematical. 31. That the difficulties attending an estimate of the present value of an inchoate right of dower are not regarded as insuperable, is evi- 1 In accordance with the opinion here expressed, it was held by the Superior Court of Cincinnati (General Term, Oct. 1862) that, upon a sale of lands in parti- tion, the inchoate dower interest of the wife of one of the joint owners is not only divested, hut that she is not entitled to have any portion of the fund invested for her benefit. Pullen v. Shillito, opinion per Hoadley, J. CH. XVI.J ESTATES IN JOINT TENANCY, ETC. 341 dent from the fact that in several of the States express provision is made by statute for the protection of the interest of the wife in cases of sales in partition during the lifetime of the husband. The New York statute of 1840 is as follows : — In all cases of sales under judgment or decree in partition, where it shall appear that any married woman has an inchoate dower right in any of the lands divided, or sold, or that any person has any vested or contingent future right or estate in such lands, it shall be the duty of the court under whose judgment or decree such sale is made, to ascertain and settle the proportional value of such inchoate, contingent, or vested right or estate, according to the principles of law applicable to annuities and survivorship, and to direct such proportion of the proceeds of the sale to be invested, secured, or paid over in such manner as shall be judged best to secure and protect the rights and interests of the parties. 1 The same act also provides for the release, by any married woman, to her husband, of her interest in the fund, and upon such release being made, directs that her share of the proceeds of the sale shall be paid to her husband. And such release, and also the payment, investment, or otherwise securing any share of the proceeds of the sale, according to the first section of the act, operates as a bar, both in law and equity, against any such right, estate, or claim. 2 32. In Bartlett v. Van Zandt, 3 which arose under the foregoing act, the decree was so framed as to ascertain at once and definitely, the whole value of the dower interest of the wife of one of the par- ties. It directed the value of the inchoate right to be settled by a master, on the principle of life annuities, and that the amount thus ascertained should be paid into court from the proceeds of the sale, to be invested under the direction of the court. The income arising from this sum was to be paid to the assignees of the husband's inter- est, during the life of the husband,* and after his death the principal was to be paid as the court should direct. The husband survived the wife. It was held that the value thus ascertained represented the present worth of the wife's dower right, and that the sum paid or reserved on account thereof, became her absolute property with- out condition or contingency; that the sale operated as a statutory i Laws of 1840, ch. 177, J 1; 3 Rev. Stat, N. Y. 5th ed. p. 614, \ 65. 2 gg 2, 3; 3 Rev. Stat. 5th ed. p. 614, \\ 66-68. a Bartlett v. Van Zandt, 4 Sandf. Ch. 396. 4 Compare the statement of the case, (p. 397,) where it is said the income was to be paid to the assignees during the life of the wife, with the opinion of the court, (p. 399,) where it is stated, no doubt correctly, that the assignees were to receive the income during the life of the husband. 342 THE LAW OF DOWER. [CH. XVI. conversion, impressing upon the sum payable to the wife for her dower interest, the character of personalty, and that upon her death it went to her husband. Statutes similar to that of New York have been adopted in Min- nesota and Virginia. 1 33. In England, when it became established that estates in joint tenancy were not subject to dower, one of the modes devised by conveyancers to intercept that right, was to convey lands in such manner as to create, technically, an estate in joint tenancy in the husband. 2 If it be once settled that sales in partition completely extinguish the wife's right of dower, it will not be difficult, in the transmission of titles to real property, to frame conveyances with reference to this doctrine, and in a great measure practically nullify existing statutes securing the right of dower. If the courts, in the absence of legislation upon the subject, possess no power to protect the inchoate interest of the wife, a due regard to her rights would seem to require a prompt exercise of the legislative authority in all those States in which provision has not already been made for the protection of that interest in cases of the character here referred to. i Stat. Minn. (1858,) p. 602, gg 36, 37. See, also, p. 599, g 12. Code of Va. (1849,) p. 474, g 3. The Maryland Code also provides for the sale of the lands of joint owners free from dower ; vol. i. p. 78, g 33 ; and see ante, g 25. For a discussion of the question relating to the right of the wife to have her inchoate dower interest protected where lands are sold in the husband's lifetime under proceedings in foreclosure, or to satisfy a vendor's lien, see ch. 23, gg 26-30, and ch. 25, g 7. * Park, Dow. 83. CHAPTER XVII. DOWER IN ESTATES NOT OF INHERITANCE. § 1-5. Rule at common law as to es- tates for life. 6-9. Rule in the United States. \ 10-18. Dower in estates for years. 19. In estates at will. 20, 21. In wrongful estates. At common law estates for life not subject to dower. 1. An estate for life, although possessing all the dignity of a free- hold estate, is, nevertheless, by the rules of the common law, not subject to dower. It is obvious that dower does not attach upon an estate which the husband holds for his own life, as the right of dower is but a continuation of the husband's estate; 1 and although the same reason for excluding dower does not exist where an estate is held •pur autre vie, yet the common law, for reasons which will be here- after stated, makes no distinction, and rigorously applies the same rule in both classes of cases. 2 2. "By common speech," says Littleton, "he which holdeth for term of his own life, is called tenant for term of his life, and he which holdeth for term of another's life, is called tenant for term of another man's life." 3 Upon which Lord Coke has these observations: "Now it is to be understood that if the lessee in that case dieth, living cestui que vie, (that is, he for whose life the lease was made,) he that first entreth shall hold the land during that other man's life, and he that so entreth is within Littleton's words, viz. tenant pur autre vie, and shall be punished for waste as tenant pur autre vie, and subject to the payment of the rent reserved, and is in law called an occu- i Park, Dow. 48, 49; 1 Greenl. Cruise, 181, § 17. And see Exton v. St. John, Finch, 368. 1 Ibid.; Bracton, 92, b.; Plow. 556; Bowles v. Poore, 1 Bulstr. 135; Low v. Bur- ron, 3 P. Wms. 262; see 1 Ves. Sr. 303. • Litt. sec. 56. (343) 344 THE LAW OF DOWER. [CH. XVII. pant, (occupans,) because his title is by his first occupation. In like manner it is of an estate created by law, for if a tenant by the cur- tesie or tenant in dower grant over his or her estate, and the grantee dieth, there shall be an occupans." 1 This rule, which was limited to corporeal hereditaments, was founded upon the idea that the estate, upon the death of the grantee, could not go to the heir, for the reason that there were no words of inheritance ; nor to the execntor, because it was a freehold estate. For ihese reasons it was supposed the estate became derelict, and that the person who first entered might lawfully retain possession, and would become vested with all the rights and subject to all the obligations and liabilities of the grantee. 2 Upon such an estate, so long as this doctrine was recog- nized, it is manifest no right of dower could attach. 3. The intrinsic injustice of such a doctrine is very palpable ; and it is also apparent that it must have been the fruitful source of much mischievous controversy, and would necessarily call for modification at the hands of the legislative power. Accordingly, by the statute of 29 Car. II., chapter 3, sec. 12, it was enacted "that any estate pur autre vie, shall be devisable by will, &c, and if no such devise thereof be made, the same shall be chargeable in the hands of the heir, if it shall come to him by reason of a special occupancy, as assets by descent, as in case of lands in fee simple. And in case there be no special occupant thereof, it shall go to the executors or administrators of the party that had the estate thereof by virtue of the grant, and shall be assets in their hands." A statute upon the same subject was also passed in the 14 of Geo. II. which, after re- citing the 29 Car. II., and that doubts had arisen, where no devise had been made of such estates, to whom the surplus remaining after the payment of debts, belonged, enacted as follows: "That such estates pur autre vie, in case there be no special occupant thereof, of which no devise shall have been made according to the said act, or so much thereof as shall not have been so devised, shall go, be applied, and distributed in the same manner as the personal estate of the testator or intestate." 3 A more recent act provides that estates pur autre vie, if not devised, shall be chargeable in the hands i Co. Litt. 41, b. 2 1 Greenl. Cruise, 109, § 43 ; Lambert on Dower, 21, 49. s 14 Geo. II. oh. 20, 69 Dower in estate of cestui que trust. J 4. The Statute of Uses, as we have just seen, had the effect by its own inherent force, of executing the use, or in other words, of con- verting it into a legal estate. Thus, if a conveyance were made to A. for the use of B., the statute immediately transferred the legal estate to B. But here its operative power was expended. Con- sequently, if a conveyance were made to A. for the use of B. in trust for C, the statute would execute the use in B. by investing him with the legal estate, but it would not transfer the estate to 0. In such case, therefore, B. would take the legal estate in trust for C., and this trust the Courts of Chancery stood ready to uphold precisely as they had already sustained and enforced conveyances to uses. And by refinement so subtle, and a contrivance so simple^ was the celebrated Statute of Uses practically abrogated; so far, at least, as it was intended thereby to unite, in all cases, the legal with the equitable estate. 1 5. One of the recitals contained in the Statute of Uses is to the effect, "that by uses men lost their tenancies by the curtesy, and women their dowers," 2 and this was one of the mischiefs sought to be remedied by that act. 3 Indeed, it had become a common practice to convey lands by way of use, for the express purpose of defeating dower.* After the passage of the statute of uses, and the invention of conveyances in trust, the courts of equity so far respected the manifest intent of the legislature as to annex to trust estates the incident of curtesy; 8 and some of the most learned of the equity judges labored zealously to effect the same result with respect to dower. In this, however, they ultimately failed. But for a long time the question of the right of dower in the estate of the cestui que trust was in an unsettled condition, and the rule excluding dower 1 Williams, Real Prop. 134-36 ; Walker's Amer. Law, 300. 2 27 H. 8, oh. 10; Banks v. Sutton, 2 P. Wms. 700, 714; Chudleigh's case, 1 Co. 123, b. s Chudleigh's case, 1 Co. 123, b., 124, a. * Chaplin v. Chaplin, 3 P. Wms. 229 ; D'Arcy d. Blake, 2 Sch. & Lef. 387 ; 1 Washb. Real Prop. 161, \ 13. 5 Watts v. Ball, 1 P. Wms. 108; 2 Eq. Ab. 727; Sweetapple v. Bindon, 2 Vern. (pt. 2,) 536; Casborne v. Soarfe, 1 Atk. 603; 2 Eq. Cas. Ab. 728; Cunningham v. Moody, 1 Ves. Sr. 174; Roberts v. Dixwell, 1 Atk. 607; Hearle n. Greenbank, 1 Ves. Sr. 299; 3 Atk. 716; Chaplin v. Chaplin, 3 P. Wms. 229; Pitt u. Jackson, 2 Bro. C. C. 51 ; Steadman v. Palling, 3 Atk. 423; Sugd. Gilb. Uses, 48, note. vol. I. 24 370 THE LAW OF DOWER. [CH. XIX. therefrom was not established without great difference of opinion and contrariety of decision. 1 6. The first case in which the question was made appears to have been Colt v. Colt, decided in the 15 of Charles II. 2 In that case the widow claimed dower of a trust estate which the husband had himself created. The claim was disallowed. After this came Fletcher v. Robinson, determined in 1653. 3 According to the statement of that case, one Henry Robinson, for a valuable consideration, agreed to assure certain lands to Henry, his elder son, in fee ; but falling into trouble for counterfeiting a patent under the Great Seal, conveyed the estate to John, his younger son, in fee, to prevent a forfeiture, and the younger son executed a declaration in trust to the father, who, being afterwards freed from his troubles, conveyed the estate to the elder son, and died. Subsequently the elder son died, leaving a widow, (the plaintiff,) but no issue ; whereby the younger brother became his heir. The widow brought her writ of dower at law against the surviving brother, and instituted proceedings in the Court of Chancery to set aside the conveyance made to him, as an impediment to the recovery of her dower in the courts of law. The court thought the case a fit one to be maturely considered, and ordered it to be stated by one counsel on each side. The case, stated in conformity to this order, concludes as follows: "So that, upon the whole matter, the case, upon the bill, answer and proofs will fall out to be, that Henry, the father, being cestui que trust in fee, con- veyed to Henry, the son, (i.e. the eldest son,) and his heirs, and Henry, the son died. Now whether the wife of the son, (the interest in law being still in the trustee ; that is, the younger son,) shall be holpen to dower in equity, is the single question. Whereupon," the report continues, "the court is of opinion that there is good ground to set aside the said deed made to John, the youngest son, and that the plaintiff should have her dower out of the said manor of Binton, and other, the lands conveyed to the plaintiff's husband. and his heirs, for the time to come, and to the arrears thereof from the death of her husband." 4 A decree was entered accordingly, directing the deed to the younger son to be set aside, as against the plaintiff; that it should not be given in evidence on the trial at law ; and that as to 1 Park, Dow. 124 ; Greening's note, Perk. sec. 349. a Colt v. Colt, 1 Ch. R. 254 ; cited in Banks v. Sutton, 2 P. Wms. 708. » Fletcher v. Robinson, Preo. Ch. 250 ; cited in Banks v. Sutton, 2 P. Wms. 710. * Banks «. Sutton, 2 P. Wms. 710, 711. CH. XIX.] TRUST ESTATES. 371 the arrears of dower, the plaintiff should resort to the Court of Chan- cery for further directions, after the trial was had. In conformity to this direction a trial was had in the law courts, but upon that trial, the deed, notwithstanding the foregoing decree, was given in evi- dence, and the plaintiff was consequently nonsuited. Upon her application, and these facts being shown, the Court of Chancery ordered a commission to set out her dower, stayed proceedings on the nonsuit, gave her her costs in both courts, and ordered the de- fendant and his attorney, who insisted on giving the deed in evidence on the trial, to stand committed. 1 7. This case was, for a time, justly regarded as an authoritative decision in favor of the right of dower in trust estates of inheritance. 2 The commissioners for the custody of the Great Seal at the time the decision was made, were Widdrington, Whitlock, and Lisle ; 3 and in the subsequent case of Dudley v. Dudley, the Master of the Rolls, Sir John Trevor, thus alluded to the previous case, and to the learn- ing and integrity of the commissioners before whom it was heard : " Though this was much contested, yet equity prevailed ; and though the time in which it was adjudged may be objected, yet were they (the commissioners) learned men, who deliberated well, and pro- nounced their decrees according to their oaths, and according to justice and equity." 4 The ruling in Fletcher v. Robinson, however, met with much opposition ; and in Radnor v. Rotheram, 5 it was de- clared by Lord Chancellor Somers to be agreed on all sides that a woman was not dowable of the trust of an inheritance. But the point had not yet been definitely settled ; for a few years afterwards, in Otway v. Hudson, 6 it was maintained by Lord Cowper that the widow of a cestui que trust of a copyhold estate was entitled to her widow's estate [i.e. customary dower) in the same manner as if the husband had been clothed with the legal title. Nevertheless, in Bot- tomley v. Fairfax, it is said to have been "clearly agreed, that if a husband, before marriage, conveys his estate to trustees and their heirs in such manner as to put the legal estate out of him, though the trust be limited to him and his heirs, yet of this trust estate, the i Banks v. Sutton, 2 P. Wms. 711. * Per Sir Joseph Jekyll, in Banks ». Sutton, 2 P. Wms. 712. 3 Vide Whitlock's Memoirs, sub anno 1654; 2 P. Wms. 712, note. * Preo. in Ch. 250 ; 2 P. Wms. 712. B Radnor v. Rotheram, Pree. Ch. 65 ; decided in 1696. 6 Otway v. Hudson, 2 Vern. (pt. 2,) 583; 27 Feb. 1706. 372 THE LAW OF DOWER. [CH. XIX. wife, after his death, shall not be endowed, and that this court hath never yet gone so far as to allow her dower in such a case." 1 So in Ambrose v. Ambrose, it was assumed as a settled point that a woman was not dowable of an estate bought by her husband in the name of a third person, and this decree was afterwards affirmed in the House of Lords. 2 8. Thus stood the law when the celebrated case of Banks v. Sut- ton, determined in 1732, by Sir Joseph Jekyll, Master of the Rolls, came up for consideration. 3 The case was a proceeding for dower in behalf of the widow of a tenant in tail of a trust, to whom the legal estate was, by the will of the donor, directed to be conveyed, upon his attaining the age of twenty- one years, and who had lived to that age, and died without receiving a conveyance. The authorities were carefully reviewed, and the whole subject was very fully and thor- oughly discussed. The opinion of the master of the rolls is an ex- ceedingly able argument in behalf of the claims of the widow, and will well repay an attentive perusal. In the outset of his remarks he labored to show that dower is not only a legal right, created by express law, and a moral right, founded on the obligation of the hus- band to provide for the wife during her lifetime, 4 but also that it is an equitable right arising from contract, and founded on a valuable consideration: "By the common law," he says, "where a husband had an inheritable estate, it was part of the marriage contract that the wife should have her dower, one species of which was ad ostium ecclesise. Litt. sec. 39. ' When the husband comes to the church door to be married, after affiance or troth plighted between the husband and wife, he endows her;' 5 which implies that such endowment is before the marriage completely solemnized; and "though my Lord Coke says such dower is after the marriage solemnized, this is a mis- take. 6 Also, by the Romish ritual used here before the Reformation, it appears that all marriages were celebrated ad ostium ecclesise; so that it should seem to be incumbent on the husband, if he could do i Bottomley v. Fairfax, in 1712, Prec. Ch. 336; 1 Ch. Rep. 254; cited in Banks v. Sutton, 2 P. Wms. 708, 709. » Ambrose v. Ambrose, in 1716, 1 P. Wms. 321. " Bants v. Sutton, 2 P. Wms. 700 ; 2 Eq. Cas. Ab. 382, note. * See ante, ch. 1, \ 32. 5 See ante, ch. 1, \\ 14, 20. 6 In this the master is himself mistaken. See Perk. sec. 437 ; Hughes on Orig. Writs, 176 ; 2 Bl. Com. 134, note ; Park, Dow. 133, note. CH. XIX.] TRUST ESTATES. 373 it, to endow his wife, and to specify the dower upon the marriage, instead of which the general words of endowing with all his worldly goods, in the office of matrimony now in use, have come in ; from whence it is to be inferred, that dower is, and time out of mind has been, a part of the marriage contract, when it came to be publicly solemnized ; and if so, a right of dower is founded in contract, and is, therefore, an equitable right." 1 He also proceeds to show that the right to tenancy by the curtesy in trust estates had become well established : "And as dower is more favored in law, reason and equity, than curtesy," he adds, "therefore every precedent for tenancy by the curtesy of a trust, is an authority for dower of a trust." And referring to the opinion of Lord Cowper in Watts v. Ball, 2 he makes these further observations: "His lordship laid down the rule gener- ally, that trusts are to be governed by the same law, and are within the same reason as legal estates ; and if there were not the same rule of property in all courts, things would be at sea, and there would be the utmost uncertainty; which general position, extending to the case of dower, as well as tenant by the curtesy, may be reck- oned an authority for the one as well as the other. That trusts and legal estates are to be governed by the same rules, is a maxim which has obtained universally." 3 1 Banks v. Sutton, 2 P. Wms. 705, 706. Mr. Park criticises these observations with much severity, as loose and unsound, and but little to the purpose. "That the wife has a moral right to a provision," he remarks, "is a consideration of legislative, and not of judicial application; courts of equity do not sit to enforce naked moral obligations ; neither does the moral obligation of a husband to provide for his wife dictate any such specific and defined provision as that entitled dower." Park, Dow. 181. "It is difficult," he adds, "to conceive any reasoning more loose than the above, but even had it been otherwise, its application to equitable estates would have been sufficiently rebutted by Lord Talbot's observation before stated. Of the passage in the marriage service of the Church of England, alluded to by the learned judge, it is perhaps difficult now to point out the real history. That service was not composed by lawyers ; and the divines who inserted it probably intended nothing more than to express the moral duty of the husband to make his wife the partaker of his worldly fortune. If the lawyers had been consulted on the subject, and it had been proposed by them to engraft a species of dower ad ostium ecclesise upon the formulary of the Protestant Church, they would surely have suggested some other mode of expressing it than that of 'with all my worldly goods I thee endow;' and if the effect of that expression be such as Sir Joseph Jekyll has represented it, it is difficult to say how a man can answer to his conscience in making that declaration in the face of the Church, who has the day before executed a settlement for barring his wife's dower." Ibid. 134, 135. a Watts v. Ball, cited 2 Vern. (pt. 2,) 681 ; 1 P. Wms. 108. » Banks v. Sutton, 2 P. Wms. 712, 713. 374 THE LAW OF DOWER. [CH. XIX. 9. But while insisting with much force of argument that trust estates were subject to dower, the master of the rolls, nevertheless, eventually narrowed his proposition to a very small limit. He took a distinction between a trust created by the husband himself, and a trust created by a third person, and conceded, upon authority, that estates of the first class were not subject to dower. " The first case of this kind," he remarked, "is Colt v. Colt, 1 Chan. Rep. 254, 1 but the year and folio of the Register book there set down are false printed ; it is the 15 Car. 2, fo. 794, and was a claim of dower of a trust created by the husband himself, as is the case of Bottomley and Fairfax, Preced. in Chan. 336, 2 and that of Ambrose v. Ambrose, (1 P. Wms. 321, ) 3 heard in this court in 1716, and affirmed in the House of Lords in June, 1717. Where, therefore, the trust of an inheritance is created by the husband himself, I take it to be settled that the wife shall not have dower, even against the heir, nor against a devisee, the cases in reason being the same." 4 He contended, how- ever, argumentatively, that where the trust was not created by the hus- band, the wife was dowable. " But whether the wife shall have dower of a trust of an inheritance created by another person, as against the heir or devisee, is a very different question. That the wife shall not have dower of a trust created by the husband, or (which is all one) of a purchase made by him in a trustee's name, may be reasonable, since it may be presumed to be done with intent to bar dower, and every man may do as he pleases with his own. Accordingly it has been commonly practiced for a purchaser to take a conveyance in his own name, and in the name of another person as trustee, pur- posely to prevent dower. It is said in Shower's Parliament Cases, 71, that Sergeant Maynard made a long lease to a servant on pur- pose to prevent dower, and the case of Bottomley and Fairfax in the book before mentioned seems to go upon the act and intention of the husband. . . . But where there is no conveyance to trustees by the husband in order to put the legal estate out of him, and the equi- table interest (which in this court is taken for the whole) descends, or comes to the husband from another, who can not be presumed to have lodged the legal estate in trustees to prevent dower out of the estate of a future cestui que trust, (perhaps one not then born,) this seems to differ in reason, and does so by the authorities. I find i Ante, \ 6. 2 Ante, \ 7. » Anle, § 7. * Banks v. Sutton, 2 P. Wms. 708. CH. XIX.] TRUST ESTATES, 375 no resolution against dower in such case, but on the contrary some allowing that as well as tenancy by the curtesy." 1 10. Notwithstanding this course of reasoning, Sir Joseph Jekyll expressed himself unwilling, by judicial decision, to carry it to its legitimate result. After reviewing the authorities, he concludes his opinion upon this point as follows: "But after all these reasons and authorities, I must declare that I would not take upon myself to determine whether a wife should have dower out of a trust of inher- itance where it is created, not by the husband, but some other per- son, and no time limited for conveying the legal estate; when that comes to be the- case it will be time enough to do it; but the present very much differs from the common case of trust estates in that there is a time limited for conveying the legal estate, and that time come in the life of the plaintiff's husband; this makes it clear for dower, upon a principle well known and established in this court, that where an act is to be done by a trustee, that is to be looked upon as done which ought to be done ; consequently the estate directed to be con- veyed to the plaintiff's husband ought to be considered as actually conveyed to and vested in him, and then the plaintiff hath a right of dower out of it." 2 11. Upon careful consideration of the opinion of the master of the rolls in the foregoing case, it will be observed that he holds : First. Upon the authority of decided cases, that there can be no dower of a trust estate where the trust is created by the act of the husband. Second. That where the trust is created by a third person, and a time is limited for conveying the legal estate, and that time has ex- pired in the lifetime of the husband, the widow is entitled to dower as against the heir or devisee of the husband. He does not decide that she can have dower, even in such case, as against a purchaser from the husband. Third. He leaves the point undecided whether dower can be had of a trust estate created by a third person, where no time is limited for conveying to the husband the legal estate. 12. The case of Chaplin v. Chaplin, 3 decided by Lord Chancellor Talbot in the .following year, is directly against the right of dower in trust estates. The principal question in the case was whether the plaintiff was dowable of an equitable rent charge, in the creation of which the husband had taken no part. On the hearing, the lord i Banks v. Sutton, 2 P. Wms. 709. 2 Ibid. 715. 3 Chaplin v.' Chaplin, 3 P. Wms. 229, decided in 1733. 376 THE LAW OF DOWEK. [CH. XIX. chancellor was pressed with the argument that a right to tenancy by the curtesy existed in such cases, as was well established by the authorities cited, and that "it would not be pretended there were less strong reasons to be urged in favor of a dowress." But he refused to be influenced by these considerations, and in the course of his opinion disclosed, for the first time, the true ground of the disinclination of courts of equity to place doWer and curtesy upon the same footing with reference to trust estates. Referring to the case of Sweetapple v. Bindon, 1 he remarked "that it might be right to allow an husband to be tenant by the curtesy of money to be laid out in land, since money agreed to be laid out in land is as land in equity, where everything directed by a will, or agreed by articles to be done, is looked upon as done." 2 In respect of Otway v. Hudson, 3 he said the decree in that case was not made upon a general rule that every widow of a cestui que trust had a right to dower, but upon the great and obstinate delay of the trustee, who refused to convey, and stood out a bill in the Court of Chancery requiring him so to do. He also noticed and commented upon Fletcher v. Robin- son, 4 as a strange case and a most extraordinary trust: "For," he observed, "if the father, the cestui que trust, should have come for a performance of that trust, he could never have recovered; but the son should have held the land discharged, it being a fraudulent trust, made to protect the estate against a forfeiture. This probably was a short note of the case for the private use of some gentleman, and can be of service to no other." Upon the direct question of the right of dower in the trust estate, the report of the opinion of the lord chancellor is as follows : " His lordship took notice that by the preamble of the Statute of Uses, 6 it is recited that by means of these uses the wife was defeated of her dower ; by which it appears that 1 Sweetapple v. Bindon, 2 Vera. (pt. 2,) 536. 8 In a note to Chaplin v. Chaplin it is pertinently suggested that these observa- tions will serye to warrant the resolution of the master of the rolls in Banks v. Sut- ton ; for, however that learned argument may be considered as tending to prove in general that a woman ought to be endowed of a trust, yet in that particular case the legal estate was, by the will of the donor, directed to be conveyed to the cestui que trust on his reaching the age of twenty-one. As he actually lived to that age, his widow, on the principle above mentioned, was well entitled to dower. 3 P. WmB. 232, note B. Some of the American courts, in allowing dower in this class of cases, have acted upon this doctrine. Post, \ 22. » Otway v. Hudson, 2 Vern. (pt. 2,) 583 ; ante, § 7. * Fletcher v. Kobinson, Prec. Ch. 250; ante, . Somerville, 3 Stew. & Port. 347 ; Edmonson v. Montague, 14 Ala. 370; Allen v. Allen, 4 Ala. 556; Crabb v. Pratt, 15 Ala. 843; Parks v. Brooks, 16 Ala. 529. ' Rev. Code Missis. (1824,) p. 232, . Purdy, 3 Md. Ch. Dec. 547 ; Steuart v. Beard, 4 Md. Ch. Dec. 319. " 1 Rev. Stat. N. C. p. 614, \ 6; N. C. Code, (1854,) p. 602, ch. 118, g 6; Thomp- son v. Thompson, 1 Jones' N. C. Law R. 430 ; Klutts v. Klutts, 5 Jones' N. C. Eq. R. 80. CH. XIX.] TRUST ESTATES. 385 Ohio, 1 Indiana, 2 Illinois,' Iowa, 4 Rhode Island, 5 Tennessee, 6 Mis- souri, 7 and Kansas, 8 dower is allowed in equitable estates. And it is not required in all these States that the equity of the husband shall be complete, but in some of them the widow may claim dower subject to prior equities or incumbrances, to the extent of the actual interest of the husband in the lands at the time of his death. 9 21. The introduction of the English doctrine into Virginia was strongly resisted by some of the most eminent of the judges of that State. As early as 1755, in the old General Court, with the attor- ney-general of counsel upon the one side, and Mr. Pendleton upon the other, the question was argued whether a widow should have dower of an equitable estate in a case where the husband died after the time limited for conveying to him the legal title. And with the exception of P. Randolph, J., the court were unanimously of opinion that she was entitled to dower, and decreed accordingly. 10 Again, in Claiborne v. Henderson, 11 Wythe, Chancellor, made a similar decree; and on appeal, Tucker, J., in an opinion of great ability, insisted that the English rule was never in force in Virginia, and that consequently equitable estates were subject to dower in that commonwealth before the adoption of their statute upon the subject. 1 Swan's Stat. (1841,) p. 296, \ 1; Swan's Stat. (1854,) p. 329, § 1; 1 Swan & Critch. p. 516, § 1 ; Smiley v. Wright, 2 Ohio, 506 ; Miller v. "Wilson, 15 Ohio, 108 ; Rands v. Kendall, Ibid. 671 ; McDonald v. Aten, 1 Ohio St. 293. 2 Rev. Code, 1824, p. 157, \ 1 ; Rev. Code, 1831, p. 209, Owen v. Robbing, 19 111. 545 ; approved in Wooley v. Magie, 26 111. 526. * Crabb v . Pratt, 15 Ala. 843 ; Gillespie v. Somerville, 3 Stew. & Port. 447 ; Lewis „. Moorman, 7 Port. 522 ; Rogers v. Rawlings, 8 Port. 325 ; Edmondson v. Montague, 14 Ala. 370. 5 Edmondson v. Montague, 14 Ala. 370. 6 Gillespie v. Somerville, 3 Stew. & Port. 447. ' Rogers v. Rawlings, 8 Port. 325. CH. XX.] EQUITABLE ESTATES. 421 equitable estates although the purchase money is not fully paid, subject, however, to the vendor's lien for the residue. 1 The same rule prevails in Ohio, 2 Tennessee, 3 Maryland, 4 North Carolina, 6 and Iowa. 6 In Indiana, an early statute 7 giving dower in equitable estates was construed against the widow with some degree of strict- ness. In a case in which the husband purchased real estate and obtained a title bond therefor, but died without paying any part of the purchase money, or receiving a conveyance, and the land was afterwards sold by his executors, the court refused to endow the widow of any portion of the proceeds, although the sale produced a considerable surplus beyond what was required to discharge the pur- chase money. The court said that neither the deceased "nor his heirs ever had the right to compel a specific performance of the con- tract which he held for the property; they had not the legal title, nor the equity to enforce a legal title. His widow can not complain that the price of the lot was paid with funds to a distributive share of which she would otherwise have been entitled. The lot paid for itself by the application of a part of the avails of the executor's sale to the discharge of the purchase money due to Stanton, and as the rest of the proceeds of that sale, as well as all the personal prop- erty of the estate, was applied to the satisfaction of other debts of Grentner, nothing was left for distribution." 8 But subsequently it was held that where the purchase money remained unpaid, the widow of the vendee had an equitable right to be endowed of the interest during her life, of one-third the amount produced by a sale of the land, over the unpaid purchase money and costs. 9 The following provision was also carried into the Revised Statutes of 1838 : "The husband shall be considered equitably entitled to any real property for which he has made a contract, in proportion to the 1 Hawley v. James, 5 Paige, 318 ; Church v. Church, 3 Sandf. Ch. 434. 2 Smiley v, Wright, 2 Ohio, 507 ; McDonald v. Aten, 1 Ohio St. R. 293 ; 1 Swan & Critch. Stat. 595, \ 149. s See Thompson v. Cochran, 7 Humph. 72. * Miller v. Stump, 3 Gill, 304 ; Steuart v. Beard, 4 Md. Ch. Decis. 319. 5 Thompson v. Thompson, 1 Jones' N. C. Law R. 430 ; Klutts v. Klutts, 5 Jones' N. C. Eq. 80. « Barnes v. Gay, 7 Clarke, (Iowa,) 26 ; Rev. 1860, \ 2477. I R. C. 1831, p. 209, \ 12. e Smith v. Addleman, 5 Blackf. 406. • Malin v. Coult, 4 Ind. 535. See, also, Crane v. Palmer, 8 Blackf. 120. 422 THE LAW OF DOWER. [CH. XX. purchase money actually paid in his lifetime." 1 The Revised Statutes of 1843 were still more full and explicit upon this point. 2 The Revised Code of Mississippi contains the following provision: — When any person shall die possessed of lands purchased, the payment for which has not been completed, and no title has been made, such lands shall be subject to the dower of the widow, but only according to the value of the in- terest of the deceased, unless she will contribute her proportion of the purchase money to complete the payment. 3 44. Where the vendor retains the legal title as a security for the payment of the purchase money, it is uniformly held that his lien is paramount to the dower of the widow of the vendee. 4 And this principle was applied in a case where the lands of a decedent were sold as incapable of division, and purchased in by one of the heirs, who gave bond for the purchase money, but failed to procure a con- veyance. It was held that his widow could not be endowed to the prejudice of the coheirs who retained a lien on the lands for the'ir shares of the purchase money. 5 So where the purchaser took a title bond conditioned for a conveyance on full payment of the purchase money, and paid a large proportion of it, but died leaving the balance unpaid, and the lands were sold under proceedings to en- force the lien, and were bid in by the vendor for a sum less than the balance due, it was held that the widow of the purchaser had no dower in the premises. 6 The sale, in such case, extinguishes or divests her interest in the lands, and she must look for endowment to the surplus moneys, if any, remaining after discharging the lien of the vendor. And it has been held that if the purchase money be not paid, the widow may go into a court of equity and compel a sale of the lands for the satisfaction of the lien thereon, in order to i Rev. Stat. 1838, p. 238, \ 12. > Rev. Stat. 1843, p. 428, \\ 80-83. 3 Rev. Code Missis. (1857,) p. 468, art. 166. See, also, Torrence v. Snider, 27 Missis. 697. * Crane v. Palmer, 8 Blaekf. 120 ; Malin v. Coult, 4 Ind. 535 ; Naz. Lit. & Benev. Inst. v. Lowe, 1 B. Mon. 257 ; Willett v. Beatty* 12 B. Mon. 172 ; McClure v. Harris, 12 B. Mon. 261 ; Warner v. Van Alstyne, 3 Paige, 513 : Church v. Church, 3 Sandf. Ch. 434; Miller v. Stump, 3 Gill, 304; Steuart u. Beard, 4 Md. Ch. Decis. 319; Firestone v. Firestone, 2 Ohio St. R. 415; Pritts v. Ritchey, 29 Pa. St. (5 Casey,) 71; Barnes v. Gay, 7 Clarke, (Iowa,) 26; Thompson v. Cochran, 7 Humph. 72; Kirby v. Dalton, 1 Dev. Ch. 195 ; Wilson ». Davisson, 2 Rob. Va. 384. See post, ch. 25. 6 Miller v. Stump, 3 Gill, 304. • Crane v. Palmer, 8 Blackf. 120. CH. XX.] EQUITABLE ESTATES. 423 render her right to be endowed of the surplus available. 1 If the vendor take proceedings to enforce his lien after the death of the vendee, it is necessary, in order to conclude the rights of the dowress, that she be regularly made a party to the proceedings, and have her day in court. 2 The husband must be possessed of the equity at the time of his death. 45. The general rule is that if the husband, during his lifetime, dispose of any equitable estate he may have in lands, the dower right of his wife therein will be defeated. It is only in such equita- ble interests as he may possess at the time of his death, that she can claim dower. "The principle of the revised statutes," says the chancellor in Hawley v. James, 3 "extends only to those cases in which the equitable interest of the husband in the trust property continues down to the time of his death, so as to be inheritable by his heirs. And if he aliens it in his lifetime, the widow will not be entitled to dower therein, as against the grantee." And this is the general doctrine of the authorities, and in some States is expressly declared by statute. 4 46. When this question first arose in Kentucky, it was regarded by the courts as difficult of solution. We have seen that by con- struction, the provisions of the statute of 1796 giving dower in the estate of the cestui que trust, were extended to estates acquired by executory contract, upon the principle that when the consideration was paid, the vendor was to be regarded as holding the legal title in trust, or for the use of the vendee. 5 And, under the language of 1 Thompson v. Cochran, 7 Humph. 72 ; Daniel v. Leitoh, 13 Gratt. 195. 8 McArthur v. Porter, 1 Ohio, 99 ; Willett o. Beatty, 12 B. Mon. 172. s Hawley v. James, 5 Paige, 318, 453. * Pritts e. Bitchey, 29 Pa. St. (5 Casey,) 71 ; Junk v. Canon, 34 Pa. St. (10 Casey,) 286 ; Bowie v. Berry, 1 Md. Ch. Deois. 452 ; Purdy v. Purdy, 3 Md. Ch. Decis. 547 ; Smiley ti. Wright, 2 Ohio, 506; Miller v. Wilson, 15 Ohio, 108; Bands v. Kendall, Ibid. 671 ; Owen v. Bobbins, 19 111. 549 ; Wooley v. Magie, 26 111. 526 ; Barnes v. Gay, 7 Clarke, (Iowa,) 26 ; Lobdell v. Hayes, 4 Allen, 187, 191 ; Hamilton v. Hughes, 6 J. J. Marsh. 581 ; Lawson v. Morton, 6 Dana, 471 ; Heed v. Ford, 16 B. Mon. 114; 2 Stanton's Ky. Bev. Stat. p. 27, art. 4, \ 13; 1 Swan & Critchf. Stat. (Ohio,) p. 516, I 1; Bev. Code N. C. (1855,) p. 602, \ 6; Bev. Code Missis. (1857,) p. 468, art. 166; Code Tenn. (1858,) p. 473, \ 2398. In Edmondson v. Montague, 14 Ala. 370, the court were in doubt upon this point. See, also, ante, oh. 19, \ 25. s See ante, \\ 13, 14. 424 THE LAW OF DOWER. [cm XX. that statute, it was somewhat problematical whether, when the vendee had thus acquired a perfect equitable estate, the dower right of the wife did not become fixed, and beyond the power of the husband to divest by his individual act of alienation. But the point was re- solved against the widow: "If it (the statute) should be construed to give the wife a right of dower in such cases," the court said in Hamilton v. Hughes, 1 "by mating the right attach as soon as the husband acquires such an equity during the coverture, then she has a dower right which can not be defeated but by her own act, and unless she conveys her right according to the forms prescribed by law, she may assert it after her husband's death. It follows that in order to get clear of the wife's dower in such case, it would be neces- sary for her husband to execute a formal deed of conveyance, with a regular relinquishment of dower on the part of the wife, when the husband had an equitable interest only. Besides, title bonds for land are made assignable by law. The obvious intention of the act regulating assignments, was, to vest the entire interest in the as- signee, and this act would be defeated if there was an interest existing in the wife which could not be transferred. We are, therefore, of opinion that the said 14th section does not embrace implied trusts, except such as the husband shall hold at the time of his death. These, and these only, are included in the former adjudications of this court. To extend the statute further, and to make it embrace all cases where the husband, any time during the coverture, may have possessed an equity and parted with it before his death, would open another Pandora's box." Notwithstanding tbis decision, the Circuit Court, in the case of Lawson v. Morton, allowed dower to the widow of a vendee who had disposed of his beneficial interest in his lifetime, but on appeal the decree was reversed. 2 It would seem, however, that this construction of the statute was not entirely satis- factory to the profession, for as late as 1855 the question was again pressed upon the attention of the court, and it was insisted that the doctrine of Hamilton v. Hughes was inconsistent with the principles laid down in Bailey v. Duncan, 3 and affirmed in subsequent cases, giving dower in equitable estates resulting from executory contracts, and that the opinion in the case first named presented no satisfactory 1 Hamilton v. Hughes, 6 J. J. Marsh. 581, (1831.) * Lawson v. Morton, 6 Dana, 471. 3 Bailey v. Duncan, 4 Mon. 256 ; ante, \ 14. CH. XX.] EQUITABLE ESTATES. 425 reason for the limitation it placed on the right of the wife. But the court, in an elaborate opinion, adhered to the views expressed in that case, and, principally for the reasons there stated, held the dower of the wife in this class of equitable estates defeated by the alienation of the husband. 1 The question is now set at rest in Ken- tucky by a statute embodying the doctrine of these cases. 2 47. In Pennsylvania the point was first judicially determined against the dowress, in Pritts v. Ritchey, 3 afterwards approved in Junk v. Canon. 4 In the latter case the vendor executed and delivered to his agent a deed for the lands sold, with instructions to deliver it to the vendee on payment of the purchase money. The purchaser parted with his interest to a third person and afterwards died. Subsequently the assignee paid the purchase money to the agent of the original grantor, and received the deed left in his hands as above stated. It was held that the widow of the first purchaser had no dower in the lands. 48. The rule allowing the husband to alienate his equity free from the incumbrance of dower, also permits him to agree to a rescission of the contract. Thus, A. and B. purchased land to be divided between them by a specific line. A. was to pay the whole purchase money to the vendor, and B. was to pay A. his portion thereof within a certain time. After B. had paid part of such portion to A. the agreement between them was rescinded, A. agreeing to take B.'s part of the land, and the amount paid by B. was credited on another account. B. was never in possession of the land. It was held that B. had not such an equity as would, on his decease, entitle his widow to dower, as the contract between him and A. was execu- tory, and such as it was competent for them to rescind. 5 49. It is also held that dower does not attach to land where the husband has conveyed before he had either a legal or equitable title. Thus, where A. without any title in himself, conveyed land to B. for which he afterwards received a certificate of purchase from the land oflice, upon which a patent was subsequently issued to A., it i Heed v. Ford, 16 B. Mon. 114. * 2 Ky. Kev. St. by Stanton, p. 27, art. 4, \ 13. 8 Pritts v. Eitehey, 29 Pa. St. (5 Casey,) 71. * Junk v. Canon, 34 Pa. St. (10 Casey,) 286. s Wheatley v. Calhoun, 12, Leigh, 264. See, also, Owen v. Bobbins, 19 111. 649, 554, accord. 426 THE LAW OE DOWER. [CH. XX. was adjudged that the wife of the latter was not dowable of the land. 1 ' Rule where the husband receives the legal title after assigning his equitable interest. 50. If, after the vendee has assigned his equitable estate, the legal title be conveyed to him by the vendor, equity regards him as hold- ing it in trust for his assignee, and therefore no right of dower arises in behalf of his wife. The case of Winn v. Elliott 2 appears to con- flict somewhat with this doctrine. In that case, one Elliott, who held the bond of the patentee, Gillaspie, for title, sold the land to the Winns, and executed to them his bond for a conveyance. Gil- laspie afterwards conveyed to Elliott, and the latter died in posses- sion without having conveyed to the Winns. Being thus seized of the legal title, and having actual possession at his death, the court held his widow entitled to dower, notwithstanding the previous sale by him, and the fact that his bond for the title was still outstand- ing. But in Heed v. Ford, 3 where the purchaser transferred his interest, and afterwards received a conveyance of the legal title, it was held that he did not, by virtue thereof, acquire any such bene- ficial interest or seizin in the land as entitled his widow to dower. In another case the husband sold his interest to a third person and put him in possession. Afterwards the heirs of the assignee, in order to obtain from the assignor a conveyance with covenants of warranty, procured a deed to be made to him by the vendor, and he thereupon conveyed the title to them. "Here," the court said, "the husband had parted with his equitable title to the land, and with the posses- sion of it, before he obtained the legal title. He held the legal title in trust: it conferred upon him no beneficial interest in the land, but was acquired for the benefit of, and conveyed immediately by his deed to the heirs of his vendee. It was not such a beneficial seizin, therefore, as entitled the wife to dower." 4 51. The following case was decided in Maryland: The husband purchased land in 1832, during coverture, taking a bond for a con- veyance from the vendor. In 1839 he sold the land, and executed i Wooley v. Magie, 26 111. 526. 2 Winn v. Elliott, Hardin, (Ky.) 482. " Heed v. Ford, 16 B. Mon. 114. * Gully v. Ray, 18 B. Mon. 107. See, also, ante, \ 49. CH. XX.] EQUITABLE ESTATES. 427 to his vendee a bond with condition, upon payment of the purchase money, to convey the title in fee, clear of incumbrance. In 1843, he completed his payment of the purchase money and took the legal title to himself from his vendor. He subsequently died without having executed a conveyance to his vendee, the latter not having paid all the purchase money. It was held that his widow was entitled to dower ; but that, as part of the money received by the husband from his vendee was applied by him in payment for the land, this sum must be deducted from its value at the death of the husband, before the assignment of dower. 1 In this case the courtj while recognizing the general doctrine that the husband, by part- ing with his equitable title defeats his wife's dower, nevertheless took a distinction between a present absolute assignment, and a mere outstanding executory agreement by the husband to transfer his in- terest upon payment of the consideration by the assignee. "In the cases which have been decided in this State since the act of 1818, ch. 193, which gives the wife dower in an equitable estate," the court observed, "the wife was denied her dower because the husband's estate was divested during his lifetime. No case has been decided in which it has been held that a mere executory contract to convey by the husband, has had the effect to defeat the dower, and certainly no case can be found in which the wife's right to dower in a legal estate of inheritance in the husband, either in deed or in law, has been defeated by the act of the husband, without the concurrence of the wife, where the act was performed after the inception of the right of dower. Here, the contract of 1839, which was made after the right to dower had attached, is relied upon. But the contract was never consummated; nor had the purchaser, in the lifetime of the husband, nor has he now, put himself in a condition, by paying the money, to demand its fulfillment. And after the date of it, the hus- band took to himself the legal title, which deprived him of the power of defeating his wife's right to dower without her consent." 52. It would seem that dower is defeated as well where the husband mortgages his equitable interest, as where he transfers it absolutely; at least as against the mortgagee. Thus, if the hus- band, being possessed of an equitable estate, execute a mortgage of the land in the usual form to a creditor, and afterwards the legal title is conveyed to him, and then the creditor forecloses the , / i Bowie v. Berry, 3 Md. Ch. Deois. 359. 428 THE LAW OF DOWER. [CH. XX. mortgage and sells the land, the purchaser, it is apprehended, would take the title unincumbered by dower. 1 The mortgage would oper- ate as a conditional assignment of the equitable estate, good as against the mortgagor and his wife, 2 and upon breach of the con- dition, and enforcement of the lien, they would be divested of all interest in the land. This point appears to be fully met by the case of Miller v. Stump, 3 decided in Maryland. There the husband, dur- ing the coverture, mortgaged an equitable estate then held by him, and it was decided that his widow could not claim dower in the land to the prejudice of the mortgagee. The court further held that if, upon a sale of the equity after the husband's death, it brought more money than was required to satisfy the mortgage debt, the widow might be endowed of the surplus, but that this was a matter with which the purchaser had nothing to do. The premises, in his hands, were entirely discharged from her claim. 4 1 This point was expressly so held by S. Finch, J., in a case determined in the Court of Common Pleas of Knox County, Ohio ; Welker v. Israel, February Term, 1858. 2 In Philly v. Sanders, 11 Ohio St. R. 490, a mortgage, with covenants of war- ranty, of an equitable estate, was held good against a mortgagee whose mortgage was executed after the mortgagor had acquired the legal title. 3 Miller v. Stump, 3 Gill, 304. 4 See, also, upon this point, Purdy v. Purdy, 3 Md. Ch. Decis. 547. CHAPTER XXI. DOWER UNDER THE DOCTRINE OF EQUITABLE CONVERSION. \ 1 . The doctrine of equitable conver- sion. 2-11. Dower in money directed to be converted into land. \ 12. Dower in land ordered to be turned into money. 13-15. The right and effect of elec- tion. The doctrine of equitable conversion. 1. It is a principle in courts of equity that those things which are agreed or directed to be done, are to be regarded as having been actually performed ; and from the application of this principle has sprung what is familiarly known as the doctrine of equitable conver- sion, which is defined to be "that change in the nature of property by which, for certain purposes, real estate is considered as personal, and personal estate as real, and transmissible and descendible as such." 1 In equity, therefore, by force of this doctrine, money agreed or directed to be laid out in land, and land agreed or ordered to be sold and turned into money, are to be considered as that species of property into which they are respectively agreed or directed to be converted. 2 From this statement of the rule in question, it will be readily seen that it occupies an important place in the law of dower as administered in courts possessing equitable powers, and is deserv- ing of particular and careful consideration, in so far, at least, as a correct application of the rule affects the question of the right of dower, either in money which, by express direction, is to be em- ployed in the purchase of land ; or in land which, by like direction, is to be converted into money. 1 Francis' Maxims, Max. 13; Leigh & Dalzell on Equit. Conv. 1, 2. 2 Fletcher v. Ashburner, 1 Bro. C. C. 497; Wheeldale o. Partridge, 5 Vesey, Jr. 396 ; Craig v. Leslie, 3 Wheat. 563 ; Peter v. Beverly, 10 Peters, 532, 563 ; 1 Jar- man on Wills, ch. 19, p. 523. See 1 Lead. Cas. in Eq. 598, [*541], et seg., notes to Fletcher v. Ashburner, where the numerous English and American cases bearing upon this subject are collected and considered; Leigh & Dalzell on Equit. Conv. 59, 87. (429) 430 THE LAW OF DOWER. [CH. XXI. Money directed, to be converted into land. 2. The rule that money, imperatively directed to be laid out in land, is, in equity, completely clothed with all the essential quali- ties, and impressed -with all the material properties of real estate, is so well settled at this day as to admit of no question. Money ordered to be thus applied descends as real, and not as per- sonal estate. Its effectual disposition by will by the party entitled thereto, requires the observance of all the formalities attending a devise of land. It will pass under a general devise of all the lands of the person for whose benefit the conversion is directed to be made, while it will not pass as money by a general bequest to a legatee. 1 In the terse but comprehensive language of the learned English editor of Leading Cases in Equity, "the authorities show that money agreed or directed to be laid out in land, becomes land so completely as to acquire all the property of land." 2 3. The general doctrine is undoubtedly as stated by the writer just referred to, and carried to its natural and logical result, would seem to establish a right of dower in money directed to be laid out in land, in behalf of the widow of the beneficiary of the fund. Act- ing, apparently, upon this reasonable view of the subject, Chancellor Kent has stated the rule as follows : " In equity lands agreed to be turned into money, and money into lands, are considered as that species of property into which they were agreed to be converted; and the right of dower is regulated in equity by the nature of the property in the equity view of it." 3 While the doctrine thus broadly stated appears to be consonant to principle, and a necessary incident of the rule of equitable conversion, as established and applied in courts of equity, a careful consideration of the authorities bearing more directly upon the question of the right of dower as affected by this rule, will show that, by a singular anomaly in the English law, money directed to be converted into land, although held to be and treated in equity as land for all other purposes, including the right to tenancy by the curtesy, is declared not to be land for the purposes of dower. 4. The case of Sweetapple v. Bindon,* decided in 1705, is gener- 1 See authorities cited in preceding note. - 1 Lead. Cas. in Eq. 598, [*541]. a 4 Com. 50. * Sweetapple v. Bindon, 2 Vern. 536. CH. XXI.] MONET DIRECTED TO BE TURNED INTO LAND, ETC. 431 ally regarded as having settled the question that tenancy by the curtesy attaches, in equity, upon money directed to be laid out in land. In that case a testatrix bequeathed ,£300, to be laid out in land, and settled to the use of her daughter and her children, and if her daughter died without issue, to go over. The daughter married and had a child by her husband. Before the money was laid out in land, the daughter and her child both deceased. Upon bill filed by the husband, it was held that he might either have the money laid out in land, and settled on himself for life, as tenant by the curtesy, or in lieu of the profits of the land, might have the interest of the money during his lifetime. The correctness of this decision has been recognized in the cases cited below. 1 But where the property is set apart for the sole and separate use of the wife this rule does not apply, for in such case the husband could neither come at the profits nor the possession, and therefore could have no seizin at law nor in equity, which is an essential requisite to enable the estate of tenancy by the curtesy to attach. 2 5. It is to be observed that the case of Sweetapple v. Bindon was determined at a period when the doctrine of equitable conversion was comparatively in its infancy. It was not until about the time of Charles II. that the principles upon which the rule is founded were generally acted upon in courts of equity, and the case of Law- rence v. Beverleigh, 3 decided about the year 1670, only thirty-five years before Sweetapple v. Bindon arose, seems to be one of the earliest cases in which the rule was applied in a definitive form. 4 There is nothing in the books of that early day indicating a disposi- tion on the part of the courts to make any distinction, in this class of cases, between the right to dower and the right to tenancy by the curtesy. 6. We meet with no reported case in which allusion is made to the question with reference to dower, until we come to Crabtree v. Bram- ble, 5 determined by Lord Chancellor Hardwicke, in March, 1747. The controversy in that case was between the personal representa- 1 Otway v. Hudson, 2 Vera. 583, 585 ; Fletcher v. Ashburner, 1 Bro. C. C. 498 ; Cunningham v. Moody, 1 Vesey, Sr. 174; Uodson v. Hay, 3 Bro. C. C. 404. See Leigh & Dalzell on Equit. Conv. (5 Law Lib.) 62 ; 1 Lead. Caa. in Eq. 599, [*542] ; 1 Jarm. on Wills, p. 523 et seq. 2 Hearle v. Greenbank, 1 Vesey, Sr. 298, 307. 8 Lawrence v. Beverleigh, 2 Keble, 841. * Leigh & Dalzell on Equit. Conv. (5 Law Lib.) 2. 5 Crabtree v. Bramble, 3 Atk. 680. 432 THE LAW OF DOWER. [CH. XXI. tive and the heir at law of the party for whose benefit land had been ordered to be converted into money; and the principal question was as to what acts were necessary on the part of the beneficiary of the fund proposed to be raised from the sale, to constitute a valid elec- tion to take the land in its original condition, so as to work, in the estimation of courts of equity, a reconversion of the fund into real estate. In the course of the discussion of this question the lord chancellor made the following observations: "It must be allowed equity follows the contracts of parties, in order to preserve their intent, by carrying it into execution, and depends on this principle, that what has been agreed to be done for valuable consideration, is considered as done, and holds in every case except in dower." Next in order is the case of Cunningham v. Moody, 1 decided by the same judge in December, 1748, which, among other points, involved the question as to the right to tenancy by the curtesy in money directed to be laid out in land. The lord chancellor disposed of this question with these remarks: "Next as to the consequences of this; (the failure of a sufficient election on the part of the wife to take the fund as money.) The first is, that, as she would be tenant in tail of the land, and had the same interest in the money, the husband surviving is entitled to be tenant by curtesy, according to the case of Sweet- apple v. Bindon, 2 Vera. 536, although the court does not give that indulgence in the ease of dower." We find no further reference to this question in any reported case until in 1779, when Fletcher v. Ashburner 2 came up for determination. This is very generally re- garded as the leading case upon the doctrine of equitable conversion. In delivering his opinion, Sir Thomas Sewell observed "that nothing was better established than this principle, that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted ; and this in whatever manner the direction is given : whether by will, by way of contract, marriage articles, settlement, or otherwise, and whether the money is actually deposited or only covenanted to be paid, whether the land is actually conveyed or only agreed to be conveyed. The owner of the fund, or the contracting parties may make land money, or money land. The cases established this rule universally. If any difficulty 1 Cunningham v. Moody, 1 Ves. Sr. 174. 3 Fletcher v. Ashburner, 1 Bro. C. C. 497. CH. XXI.] MONET DIRECTED TO BE TURNED INTO LAND, ETC. 433 has arisen, it has arisen from special circumstances. In the case' of Sweetapple v. Bindon, 2 Vern. 536, it was determined that a hus- band was entitled to money to be laid out in land as tenant by the curtesy, and although it is held that a wife is not entitled to dower in a similar case, yet it is allowed that it is so held because cases have been determined, and not from any principle." 7. Upon the strength of the opinions thus expressed . by Lord Hardwicke and Sir Thomas Sewell, as well as upon the general principle of the English law denying dower in equitable estates, Mr. Park insists that a woman is not dowable of money directed or agreed to be laid out in land. 1 In this conclusion he is supported by Mr. Jacob, who, in his edition of Roper on Husband and Wife, remarks " that a widow will not be entitled to dower out of an estate agreed to be purchased by her husband, but not conveyed to him, or out of money agreed or directed to be invested in land." 2 Leigh and Dalzell, in their work on Equitable Conversion, incline to the same opinion: "It has been decided," they say, "that although the husband is entitled, where there is an equitable seizin only, to be tenant by the curtesy of a fund impressed with real uses, yet the wife is not likewise entitled to her dower." 3 So in Fonblanque's Equity it is laid down as the rule, that' money decreed to be laid out in land is considered as land inter alia, so as to be subject to the curtesy of the husband, but it will not entitle a woman to dower.* 8. We have already sufficiently explained the origin and cause of this incongruity in the law, and shown that it proceeded entirely from a desire on the part of the English equity judges to maintain the security of titles to real estate. 6 " It has been so long and so clearly settled," said Lord Redesdale, "that a woman should not have dower in equity who is not entitled at law, that it would be shaking everything to attempt to disturb the rule." 6 But however forcibly the reasoning in the case just referred to may apply with respect to estates conveyed in trust for the use of the husband, or to other equitable interests in land acquired, by him under the sys- tem of conveyancing adopted in England, founded on the common 1 Park on Dower, 136. * 1 Roper on Husb. and Wife, by Jacob, 356. 3 Leigh & Dalzell on Equit. Conv. 62. < 1 FonBlanq. Eq. 420; accord. 1 Madd. Ch. 371. 6 Ante, ch. 19, \\ 13, 17. 6 D'Arcy v. Blake, 2 Sch. & Lef. 887. See a full quotation from this opinion, ante, oh. 19, § 17. vol. i. 28 434 THE LAW OF DOWER. [CH. XXI. understanding of conveyancers that dower did not attach upon equitable estates, it is not so clear that it applies with the same degree of force to that class of cases which comes within the doc- trine of equitable conversion. Where money directed to be laid out in land has been invested during the lifetime of the husband, and the title conveyed to him, the conversion is then complete at law as well as in equity, and no question would remain as to the right of dower. And where the death of the husband has intervened before the investment is made, and there has been no attempt by him in his lifetime to change the nature of the property by an election to take it as money, so that it remains in equity impressed with the character of real estate, it can hardly be said with truth, that titles to real property would be imperiled, even in the condition of things supposed by Lord Redesdale, by permitting the widow to be en- dowed of the fund standing thus undisposed of and uninvested, in the same manner that the husband, in similar cases, has been allowed to take as tenant by the curtesy. The denial of this right to the widow is admitted to be a violation of principle, and, as before stated, the result purely of a desire to maintain the security of titles to real estate. This manifest departure from principle, it would seem, should be extended no further than the necessities which led to it require. If it be objected to this view that it would tend to embarrass the disposition by the husband of money directed to be invested in land for his benefit, upon the supposition that it would render the concurrence of the wife necessary to divest her inchoate right of dower therein, the answer is easy and obvious. The rule in equity which impresses upon money directed to be ex- pended in the purchase of land, the character of land, also recog- nizes the right of the party in interest, at any time before the purchase is made, to elect to take the fund in its original and actual character of money; 1 nor is the consent of the wife at all necessary to render the act of election effectual and complete. In this man- ner the power of absolute disposition is preserved in the husband so long as the fund remains in its original shape, by the same rule which attaches to it in legal contemplation the qualities and attri- butes of real property. It is only where the husband dies while the fund is in this condition, and while, therefore, the rights of no third » Lewin on Trusts, (24 Law Lib.) 679; Seeley v. Jago, 1 P. Wms. 389; Walker v. Denne, 2 Ves. Jr. 182 ; and see authorities cited in note, ante, \ 1. CH. XXI.] MONET DIRECTED TO BE TURNED INTO LAND, ETC. 435 persons have intervened, that the reasonable application of the rule would accord to the widow the right of dower in the fund in its equitable character of real estate. Lord Hardwicke appears to have had this feature of the doctrine of equitable conversion in view, while considering the case of Cunningham v. Moody, 1 for he there made the right of the husband to hold as tenant by the curtesy, depend upon the question whether the wife, in her lifetime, had done any act sufficient in law to amount to an election, to take the fund directed to be laid out in land, as money. It was only upon de- termining this question in the negative, that the validity of the claim of the husband was recognized. And indeed it is a general, if not a universal rule, in those American States where dower in equities is given by statute, that the right is limited to such equita- ble interests as the husband possessed at the time of his death. 2 The present English dower act, which is more particularly referred to in the next section, contains a provision to the same effect. 9. The statute of 3 & 4 Will. IV. chapter 105, worked a great and radical change in the English law of dower as it previously ex- isted. Indeed, it may be said to have effected, substantially, the entire abolition of the former system, inasmuch as it subjects the right of dower to the unlimited control of the husband. Among the changes introduced, however, is one in favor of the widow. The second section of the act reads as follows: "When a husband shall die beneficially entitled to any land for an interest which shall not entitle his widow to dower out of the same at law, and such interest, whether wholly equitable, or partly legal and partly equitable, shall be an estate of inheritance in possession, or equal to an estate of inheritance in possession, (other than an estate in joint tenancy,) then his widow shall be entitled in equity to dower out of the same land." 3 It appears to have been the intention of the Real Property Commis- sioners who framed this law, to comprehend in the foregoing section all that class of cases in which, by force of the doctrine of equita- ble conversion, money is impressed with the character of real estate. In their report the commissioners use this language, which very clearly expresses their understanding as to the effect of the sec- tion: "We propose that dower should attach upon all estates of i Cunningham v. Moody, 1 Ves. Sr. 174 ; see ante, \ 6. 2 See ante, ch. 20, I 45. 5 See Appendix. This act applies only to persons married after January 1, 1834. 436 THE LAW OF DOWER. [CH. XXI. inheritance in possession, excepting the species of property to which dower is not incident, and on property considered in equity as real estate, of or to which any husband dies seized or entitled in fact or in law, whether legally and beneficially, or beneficially, only, which, if belonging to the wife, would be subject to the husband's curtesy. .... By this enactment the artificial distinction between legal and equitable estates will be taken away." If it were not that the high legal character of the eminent gentlemen who composed that commission would seem to forbid it, the suggestion might be ven- tured that in preparing the section above given, language might have been selected that would express more clearly the intention to give dower in property considered in equity as real estate. The report is explicit enough, and, taken as a glossary, renders the meaning of the section perfectly obvious. But without the explanation thus furnished, it is not so manifest that an enactment which confers upon the widow the right of dower in an equitable interest in land, ex- tends the right to property which is not in fact land, nor an interest in land, but is impressed with the fictitious character of real estate in a court of equity only. There is a plain difference between an equitable interest in land, and money which is merely regarded as land by virtue of an equitable fiction. In the one case the party has a right in specific real estate; in the other he has no such right until the money is actually invested. The doctrine of equitable con- version operates upon the property, rather than upon the title, leav- ing the latter to follow precisely the direction it would take at law upon complete performance of the act directed to be done. There- fore when money is directed to be invested in land, the title to which is to be conveyed to the party in interest, equity regards the fund as land, and the beneficiary as having the legal title thereto, pre- cisely as if the investment had been made, and the title actually conveyed; not simply as having an equitable interest in real prop- erty. For these reasons it may admit of doubt whether the terms employed in the section to which reference has been made, if inter- preted according to the usual understanding of the profession, would have the extended application intended for them by the commis- sioners who prepared the law. And upon this point it may be added that the English editor of Leading Cases in Equity, while giving it as his opinion that since the passage of the act, a woman is dow- able of money directed to be laid out in lands of inheritance, is nevertheless exceedingly cautious as to the form in which that CH. XXI.] MONEY DIRECTED TO BE TURNED INTO LAND, ETC. 437 opinion is expressed. "But since, by a singular anomaly," he says, "a woman was not entitled to dower out of an equitable estate, she was not dowable out of money directed to be laid out in land : Cun- ningham v. Moody, 1 Ves. 176; Crabtree v. Bramble, 3 Atk. 687; but now, by 3 & 4 Will. IV. c. 105, women married after the 1st of January, 1834, whose dower has not been barred, will be dowable out of equitable estates, it would seem to follow that they will be dowable out of money to be laid out in lands of inheritance." 1 No case has yet arisen in which the statute, upon this point, has received a judicial construction. The English text writers, however, appear disposed to acquiesce in the construction which the Real Property Commissioners intended it should receive, as declared in that por- tion of their report to which allusion has been made. 2 10. In those States where dower is allowed in equitable interests in land, adopting by analogy the construction given to the second section of 3 & 4 Will. IV. chap. 105, the right to dower in money impressed'in equity with the qualities of real estate, may be regarded as established. 3 And in those States where no such statutory pro- vision exists, but where the general doctrine of equitable conversion is recognized as a rule of property, it remains for the judiciary to determine whether the symmetry of the rule shall be preserved; or whether, as in England before the legislation of 3 & 4 Will. IV., its just proportions shall be marred, to serve an ulterior purpose. The acknowledged reason which led the English courts to so wide a departure from principle in respect to this question, can be said to exist in but few, if indeed in any of the States of the American Union. 11. The American reports are barren of cases having a direct influence upon this particular phase of the subject. In Potts v. Cog- dell, 4 a certain sum of money had been settled to the use of husband and wife for life, with remainder to their issue. The money was partially converted into land by the husband after the death of his wife. It was held that his second wife was entitled to dower in the land, although it was, in all other respects, to be treated as per- sonalty. This case, it will be perceived, scarcely meets the point. In the first place, the money was not directed to be invested in land ; and secondly, if such direction had been given, the conversion was 1 1 Lead. Cas. in Eq. 599, [*542.] * See 2 Sugd. on Vendors, 224. * See 1 Washb. Real Prop. 181. * Potts v. Cogdell, 1 Desaus. 454. 438 THE LAW OF DOWER. [CH. XXI. actual, and not fictitious. No other American case is to be found appearing to involve the question under consideration. Land ordered to he turned into money, 12. It has already been shown that land ordered to be sold and converted into money, is treated in a court of equity as the latter species of property. 1 The conversion is there looked upon as having actually been made. One consequence naturally, and perhaps neces- sarily resulting from this principle is, that as a general rule, the widow of the party for whose benefit the fund is to be raised, is not entitled to dower therein. Thus, in Berrien v. Berrien, 2 where a testator by his will directed that the residuum of his estate, real and personal, should be sold by his executors, and the money arising from the sale divided among his children, it was held that the devi- sees took a vested interest in the proceeds of a sale of the estate, both real and personal, and that neither of the sons took such an estate in the land as would entitle his widow to dower. So in Cos- ter v. Clarke, 3 five persons entered into an agreement for the purchase of real estate to be resold for profit. By the terms of the agreement it was stipulated that the title should be taken in the name of one of the five, and that he should hold the land and receive the avails for i. joint account until sales were effected, and the land converted into money. Title was made accordingly ; and afterwards, upon bill filed for partition, sale, and account, it was held by the vice-chancellor that the land was not subject to dower. This decision was placed mainly upon the ground that by the agreement of the parties in interest, the land purchased had, in equity, lost its character of real estate, and become personalty. The right and effect of election. 13. When we come to consider this subject with reference to the right of the intended recipient of the fund to take the land directed to be sold, instead of its proceeds, we encounter questions which, in the absence of judicial determination of the points involved, can not be very readily nor satisfactorily solved. Where there is but a single individual interested in the fund ; or, if there be more than i Ante, (S 1. 2 Berrien v. Berrien, 3 Green's Ch. R. 87. 8 Coster v. Clarke, 3 Edw. Ch. R. 428. CH. XXI.] MONEY DIRECTED TO BE TURNED INTO LAND, ETC. 439 one, where they all concur in the act of election, no difficulty what- ever can arise. Where parties are competent in law to its exercise, the power of election is very simple of execution, and in either of the cases above supposed, unless there be absolute incompetency by reason of some existing personal disability, there is no obstacle in the way of its easy performance. Any act clearly and unmis- takably indicating a purpose to take the land in its original con- dition, and to dispense with a sale, will be sufficient to effect that purpose. 1 From that moment a reconversion is worked ; the owner- ship of the realty is, in equity, vested in the party or parties in interest, and a conveyance of the title, where circumstances render such conveyance necessary, may be enforced. But where two or more persons are entitled to the fund, it is necessary that all should concur in the act of election in order to make it effectual to prevent a sale. No one singly has a right to elect that his own undivided share shall not be disposed of. A different rule prevails where money is directed to be invested in land, and in such case, any one of several parties interested may elect to take his share in money. The ground upon which this distinction rests is, that in the case of land ordered to be sold it is supposed the withhold- ing of one or more of the undivided shares from the sale would prejudice the sale of t.he remaining shares; while in the case of money ordered to be invested in land, a portion of the fund may be invested quite as advantageously as the whole sum. 2 14. As an illustration of the embarrassing questions which may possibly arise with respect to the right of dower, by reason of this distinction in the law as to the power of election, the following hypothetical case is presented for consideration. Suppose a tes- tator to have died seized of land, and by his will to have directed a sale thereof by his executors for the benefit of his heirs at law. The fee in such case, it is supposed, would descend to and vest in the heirs, until divested by the execution of the power, according to the well-established rule that a mere naked power of sale in 1 See notes to Fletcher v. Ashburner, 1 Lead. Cas. in Equity; 1 Jarman on Wills, ch. 19, p. 523 et seq. * Lewin on Trusts, (24 Law Lib.) 679; Fletcher v. Ashburner, 1 Bro. C. C. 500; Deeth v. Hale, 2 Moll. 317; Smith v. Claxton, 4 Madd. 494; Chalmer v. Bradley, 1 J. & W. 59; Seeley v. Jago, 1 P. Wms. 389; Walker i>. Denne, 2 Ves. Jr. 182; notes to Fletcher v. Ashburner, 1 Lead. Cas. in Eq. 440 THE LAW OF DOWER. [CH. XXI. executors does not operate to vest in them the estate. 1 Suppose further, that pending the execution of the power, one of the heirs at law and beneficiaries of the fund, elects, so far as it is in his power to make an election, to take and hold his share as real estate ; that the remaining heirs insist upon a sale, and that a sale is made accordingly. The right of dower, attaching sub modo upon the estate taken by descent, would of course be defeated by the sale, for the estate itself would be defeasible and would terminate with the sale. But what would be the effect of the effort to exercise the power of election, as above supposed, upon the right of dower of the wife of the party making such attempt? If he were the only party in interest, the inchoate right of his wife would instantly at- tach. Does the fact that other parties are interested with him in the land, or in its proceeds, operate to prevent the right from attach- ing upon the share of the husband? A concurrence on their part in the act of election by the husband, would render the reconversion complete, and unquestionably perfect the right of dower. Is it in their power, and at their option, by refusing their concurrence, to control the right? If so the wife, so far as her dower estate is con- cerned, in a case of this character, is completely at the mercy of any one of the cotenants in interest with her husband. It seems hardly reasonable to make the right of the_ wife depend upon the caprice of third parties, or upon "the conflicting views they may chance to entertain as to the expediency of a sale. The act of elec- tion by the husband, though not in itself sufficient to prevent a sale, may, with seeming propriety, be deemed sufficient in equity to entitle his wife to dower ; for the sale goes on, not for his benefit, but to protect the interests of other parties. He is permitted to elect to take his proportion of money directed to be invested in land for the benefit of himself and others, and, in that way, to deprive his wife of dower therein. This privilege is granted him upon the assumption that an election in such case would not prejudice the rights of the 1 1 Sugden on Powers, (15 Law Lib.) 128, \ 25; Vint. v. The Heirs of King, 2 Amer. Law Reg. 712 ; Bergen v. Bennett, 1 Caine's Caa. 16 ; Snowhill v. Snowhill, 3 Zab. 447; Elle v. Young, Ibid. 478; Gest v. Flock, 1 Green's Ch. R. 108; Jack- son v. Schauber, 7 Cowen, 187 ; Schauber v. Jackson, 2 Wend. 13, 57 ; Jackson v. Burr, 9 John. R. 104. .By a special statute of Pennsylvania it is provided that a power of sale conferred upon executors by will shall have the effect to vest them with the estate. See Allison v. Wilson, 13 Serg. & R. 330, 332 ; but this is a pal- pable innovation upon the rule of the common law. CH. XXI.] MONEY DIRECTED TO BE TURNED INTO LAND, ETC. 441 other parties interested. It seems difficult, therefore, to assign any good reason why, in a case of the other description, he should not be allowed to secure to his wife the right of dower, by electing to take land instead of money; or why third parties should be held to possess absolute control over the subject. A sale which is re- quired to be made in order that the rights of others may not suffer injury, should not be permitted to work serious detriment to the in- terests of the wife. In the event of the decease of the husband between the date of the election by him, and the time of the sale under the power, and when it became a question whether she should have a portion of the husband's share of the fund for the support of herself and her children, or whether it should all be swept away by creditors, the injustice of a rule overruling her claim would be most glaringly apparent. 1 But questions of this nature, with all the com- plications which varying circumstances may create, must be left for future discussion and adjudication, as cases involving them may chance to arise. 15. An infant is held incompetent in law to make a valid elec- tion. 2 It follows, therefore, that where money is directed to be invested in land, or land is ordered to be converted into money, for the benefit of an infant, it is not in his power, by any act of his own, to change the character of the property in any respect. In the event that he has a wife, he can neither impair her right of dower in prop- erty regarded in equity as real estate; nor can he enable the right to attach upon land ordered to be sold. Nor does his guardian pos- sess the power to elect for him ; 3 but a court of equity, it is said, may exercise the power of election in his behalf.* A lunatic, for obvious reasons, is also incompetent to make a valid election. 5 1 See 1 Jarman on Wills, 537, 538, and note. 2 Carr v. Ellison, 2 Bro. C. C. 56 ; Van v. Barnett, 19 Vesey, Jr. 102 ; Burr v. Sim, 1 Wharton, 252, 265; 1 Lead. Cas. in Eq. 607, [*552.] » Burr v. Sim, 1 Wharton, 252, 265; 1 Lead. Cas. in Eq. 617. * Turner v. Street, 2 Rand. 404 ; Pratt v. Taliaferro, 3 Leigh, 419, 428 ; 1 Lead. Cas. in Eq. 617. s Ashby v. Palmer, 1 Mer. 296; 1 Lead. Cas. in Eq. 607, [*552.] CHAPTER XXII. DOWER IN MORTGAGED ESTATES. 1 1-7. Dower in equities of redemp- tion at common law. 8-20. The rule in the United States. g 21. Dower in equities of redemption of mortgages for years. 22, 23. Dower in the estate of the mortgagee. Dower in equities of redemption at common law. 1. Until the passage of the late dower act, it was held in Eng- land that equities of redemption of mortgages in fee were not sub- ject to dower. This was considered a necessary result of the rule excluding dower from equitable estates, 1 the right of redemption being regarded as a mere equitable title. But this question was not settled until after it had undergone some contrariety of decision. In Banks v. Sutton, already cited, 2 Sir Joseph Jekyll, after reviewing the authorities pertinent to the point, declared that he "did not know, nor could find any instance where a dower of an equity of redemption was controverted and adjudged against the dowress ; and as there were authorities in cases less favorable, therefore he declared that the plaintiff, being the widow of the person entitled to the equity of redemption of the mortgage in question, (which was a mortgage in fee,) had a right of dower." And he accordingly directed her dower to be set out in the mortgaged premises, she to keep down one-third the interest of the mortgage debt. 3 But in the subsequent case of Dixon v. Saville, 4 the doctrine of Banks v. Sutton, after long argu- ment, was overruled by the Lords Commissioners of the Great Seal, upon the ground that the question was nothing more than whether a woman was dowable of a trust. And Lord Loughborough remarked : i See ch. 19. 2 Banks »>. Sutton, 2 P. Wms. 719; ante, ch. 19, \ 8. » And see 2 Powell on Mortg. 731. * Dixon v. Saville, 1 Bro. C. C. 326 ; 2 Powell on Mortg. 720 ; Lambert on Dower, 37. (442) CH. XXII.] EQUITIES OP REDEMPTION, ETC. 443 "I confess I think it so much settled that it would be wrong to dis- cuss it much." In this case there were peculiar equities in support of the wife's claim to endowment. The husband had distinctly inti- mated a wish that she should have dower in his estate, and was informed by the person who drew his will that she was entitled thereto. Acting upon this belief, the husband made but little pro- vision for her by will., Among his bequests to her, however, were certain articles of plate, and a coach and horses, which were, in a measure, useless to her without an adequate support. But these features of the case appear to have had no influence on the minds of the members of the court. The doctrine of this case became the established rule in English practice, 1 and was rigidly adhered to until the law was changed in this particular by the 3d & 4th Will. IV. ch. 105. 2 2. To such an extent was this technical doctrine carried, that actual payment of the mortgage debt at a period subsequent to the time when it became due, would not render the wife dowable unless the estate were reconveyed to the husband during his lifetime. Pay- ment upon the day named in the condition would of itself operate to reinvest the husband with the estate, but a subsequent payment would not have that effect. 3 And, as a general rule, it was not material, with respect to the right of dower in equities of redemption, whether the mortgage were executed by the husband before the marriage, or by the husband and wife after the marriage. By joining her hus- band in levying a fine on a mortgage in fee, the right of dower of the wife became absolutely extinguished, and she could no more redeem such a mortgage than one made before the marriage. 4 To this general rule, however, there were certain exceptions, which will be noticed in the succeeding sections. 5 3. According to English writers, where a fine was levied and its use either resulted to, or was declared in favor of the husband, sub- ject only to the charge created, it would not necessarily bar the wife's i Park, Dow. 138, 350, 351; Williams v. Lambe, 3 Bro. C. C. 264; D'Arcy v. Blake, 2 Sch. & Lef. 388; 4 Kent, 44; Tud. Cas. 46; 2 Crabb, Real Prop. 161; 1 Washb. Real Prop. 161 ; 1 Roper, Husb. and Wife, by Jacob, 357. 2 See. 2. See Appendix. ' Park, Dow. 137. * Ibid. 351. 5 In his note to Sheafe v. O'Neil, 9 Mass. 9, 13, Mr. Rand says: "If a mortgage in fee be made after marriage, with the assistance of a fine or recovery, wherein the wife concurs, the wife may redeem, and so become entitled to dower." This propo- sition, to the extent stated, does not appear to be supported by authority. 444 THE LAW OF DOWER. [CH. XXII. dower, although she joined therein, and the fine itself imported a grant of the fee. This was the doctrine of the courts of law, and it appears to have been the understanding of the profession that the courts of equity were disposed to carry the point still further in favor of the dowress, and that cases might occur where a fine, although an abso- lute bar at law, would, in equity, on the ground of its having been levied for a particular purpose, only, be restrained from operating to exclude the widow from her dower, except to the extent of the particular purpose originally contemplated. It is difficult to glean with precision the circumstances under which this equitable relief would be dispensed. In a case shortly stated from a MS. report in 2 Eq. Abr. 385, 1 it is said : "A wife joined with the husband in a fine, in order to make a mortgage, which afterwards was not made ; the husband died, and the wife brought a writ of dower and got judg- ment by default ; and the heir could not be relieved against it here, [in equity,] as he would have been, if the fine had been a bar of her dower in equity as it was at law." The court must, therefore, have in effect decided, that the fine was no bar in equity, the particular purpose having failed. It seems, however, to have escaped observa- tion, that, as no mortgage was made, the use resulted to the husband, and consequently the fine was no more a bar at law than in equity. 2 4. In Naylor v. Baldwin, 3 Richard Baldwin made a mortgage by demise to one Tirril, for securing £400 lent by Tirril, and to con- firm the mortgage, Baldwin and his wife acknowledged a fine to Tir- ril. On a bill in equity for divers matters, the court is reported to have said : "As for Mrs. Baldwin's dower, unless she have barred herself totally by levying the fine, the court makes no order therein at present, but declared that if she levied the fine only to secure the lease, [mortgage,] no debt could bar her except Turn's debt on the lease." It is impossible to deduce any satisfactory result from a case so vaguely reported. It does not even appear whether the fine was or was not an absolute bar at law, but the concluding observation of the court certainly seems to address itself more to the intention than to the technical operation of the fine. 5. In the case of Jackson v. Parker, 4 Sir Thomas Sewell laid hold of the circumstance of the equity of redemption being limited to the 1 And see S. C. cited Pr. Ch. 34, as Mrs. Danby's case. » Park, Dow. 207. a Naylor O.Baldwin, 1 Ch. Rep. 130, (15 Car. I.) * Jackson v. Parker, Ambl. 687. CH. XXII.] EQUITIES OF REDEMPTION, ETC. 445 husband and wife jointly, to infer an intention that the wife should, in equity, retain her right to dower, subject to the mortgage debt. In that case, John Jackson, tenant in tail of the lands in question, made a mortgage by lease and release and fine, in which his wife joined, to Frances Stubbs, which contained a proviso that if the said John Jackson and Esther his wife, their heirs, executors, adminis- trators or assigns should pay the mortgage money and interest, then Frances Stubbs, her heirs or assigns, should reconvey the premises to the said John Jackson and JUsther his wife, their heirs or assigns ; and there was a clause at the end of the deed which declared the uses of the fine to be (subject to payment of £300 and interest) to John Jackson, his heirs and assigns. Upon a question as to what interest the wife took in the equity of redemption on this mortgage, Sir Thomas Sewell was of opinion that, notwithstanding the language of the proviso, there was no room to presume any contract between the husband and wife, by which the latter was to take a joint interest in the equity of redemption in lieu of her dower, but that if it had been so it would have been recited in the deed. But he added, "the wife had a right to redeem, and if she had redeemed, a court of equity would not have taken the estate from her but upon the terms of allowing her dower." 1 6. In the previous case of Dolin v. Coltman, 2 which was not ad- verted to in the argument of Jackson v. Parker, this doctrine seems to have been carried to. a still greater length. In that case there was an express agreement that the wife should have the equity of redemption, but that agreement failing upon a special ground, it was held that she should be restored to her dower. The case is thus stated : " The wife joins with her husband in a mortgage, and levies a fine, to the intent to bar her dower, and in consideration thereof the husband agrees the wife shall have the redemption of the mort- gage ; and the husband afterwards mortgages this estate twice more. The court took this agreement to be fraudulent as against the subse- quent mortgagees, so far as to entitle the wife to the whole equity of redemption ; but in regard the wife, in confidence of this agreement had levied the fine, and thereby barred her dower, and the husband and wife being both living, the court decreed that after the husband's decease, the wife, in case she should happen to survive him, should enjoy her dower." i See, also, Southcoat v. Manory, Cro. Eliz. 744. s Dolin v. ColtmaD, 1 Vera. 294, (in 1684.) 446 THE LAW OF DOWEE. [CH. XXII. 7. The foregoing cases appear to have been regarded as establish- ing the doctrine that where a married woman joined in a fine of her husband's estate to a mortgagee in fee, and the equity of redemption was in terms limited to the wife, if this limitation failed of effect as a settlement of the equity of redemption, either by reason that the deed furnished no evidence of a contract between the husband and wife for a transfer thereof to her, 1 or by reason of a third person subsequently obtaining a legal priority against her as a volunteer, a court of equity would take advantage of the right of redemption limited to her, to restore her to her dower. 2 Dower in equities of redemption in the United States. 8. The English rule excluding dower from equities of redemption prevails to but a limited extent in the United States. In many of the States the right to be endowed of this species of estate is secured by express statute, while in others it is recognized and declared in numerous decisions of the courts of last resort. 9. Massachusetts . — Some of the earlier Massachusetts cases — in this- respect differing from the later decisions — evince a tendency in the minds of the judges of that day to follow the rulings of the Eng- lish courts, and deny, to some extent, the right of dower in equities of redemption. Thus, in Majury v. Putnam, 3 a wife joined with her husband in the execution of a mortgage of his land ; subsequently a judgment creditor of the husband sold his equity of redemption on execution ; the purchaser paid the mortgage debt, and the mortgage was discharged on the record by the mortgagee ; no part of the mort- gage debt was ever paid out of the husband's estate ; and it was held that the wife of the mortgagor had no right of dower in the land, upon the ground that he had never performed the condition of the mortgage, and the execution gave the judgment creditor his whole estate. So in Popkin v. Bumstead, 4 where, the wife joined her hus- band in a mortgage of his lands, and after his death the equity of redemption was sold by his administrator, and the grantee of the purchaser paid the mortgage debt, and procured the mortgage to be 1 Upon this point, see Innes v. Jackson, 16 Ves. 356. * Park, Dow. 207-11 ; Ibid. 351. See, also, pp. 196, 197. s Majury v Putnam, 4 Dane's Abr. 183, 676, (decided in 1793.) See Story's Plead- ings, 359, for the form of the plea in this case. * Popkin v. Bumstead, 8 Mass. 491. CH. XXII.] EQUITIES OF REDEMPTION, ETC. 44T discharged upon the record, it was held that the widow of the mort- gagor was barred of her dower. The court said : "It has been con- tended for the demandant, upon the facts exhibited in the pleadings in this case, that her title to dower has revived, and is as if she had never released it in the deed of mortgage. It would be singular, if, when the tenant had paid the money due on the mortgage, and sup- posed that he had thus perfected his estate by extinguishing the only incumbrance he knew to exist upon it, he should, by that act, revive the claim of the demandant which she had before solemnly renounced under her hand and seal, and which, as he was under no obligation, it can not be presumed he meant to do. But the facts produce no such absurdity. When the tenant purchased the equity of redemp- tion, it belonged to him to pay the money due on the mortgage, and thus rid his estate of that incumbrance. Having all the equitable interest in himself, when he had paid the money due by the mort- gage, the legal estate followed the equitable interest, and he became seized of the whole fee simple. If this were not the plain legal oper- ation of the transaction, the law would construe the discharge of the mortgage by the mortgagee a release of the legal estate by him to the tenant, who had become lawfully possessed of the equitable inter- est, and from whom the consideration for that discharge flowed, rather than such a mischief should follow." The result of this decision was simply a denial of the right of the widow to be endowed of the equity of redemption. The purchaser from the administrator of the hus- band stood in no better position than would have been occupied by a purchaser from the husband himself, and it would seem that the refusal to grant dower in a case of this description was equivalent to holding that equities of redemption were not subject to that estate. The fact that the purchaser had redeemed the lands might have raised a question as to the extent to which the widow should be endowed ; or whether she was not called upon to contribute to the payment of the mortgage debt, but it could hardly affect the prin- cipal question, as to the right to dower itself. 1 10. In Bird v. Gardner, 2 which was also a proceeding for dower, a disinclination to depart from English precedents was again man- ifested. The material facts of the case are thus, stated by the court: "The demandant's husband, Benjamin Bird, in his lifetime purchased the premises of which dower is demanded, from John 1 See post, ch. 24. * Bird v. Gardner, 10 Mass. 364. 448 THE LAW OF DOWER. [CH. XXIT. Moies. They were then incumbered with a mortgage which Moies had made to John Hawes, and which he had assigned to Gardner, the tenant. After Bird became the owner subject to that mortgage, he conveyed the same premises in mortgage to the tenant. The first mortgage remains unpaid, and the tenant has, therefore, the legal title as it was conveyed by Moies before Bird had any interest in the premises." Upon this state of facts the court held the demandant not entitled to dower. "It is upon the strength of that title," they added, "by Hawes' assignment vested in the tenant, that he is en- abled to resist the demand of dower. The title of Bird, the demand- ant's husband, was a seizin during the coverture, whereof she was entitled to dower against all other persons than Moies' mortgagee and his assigns. But against them, until the redemption of the mort- gage, the demandant's husband had nothing but an equity of re- demption; no seizin of any estate of which his wife was dowable. The tenant, therefore, as assignee of the mortgage before the demand- ant's husband had anything in the premises, must prevail upon this title. It is well settled that a wife is not dowable of an equity of redemption ; and as a purchaser of the premises subject to Moies' mortgage, Bird had only an equity of redemption." The court sug- gested, however, that possibly the widow might have some, remedy in a court of equity. "The demandant's right of dower," they ob- served, "might be maintained against the second mortgage, that which her husband in his lifetime made to the tenant, if his title under the first mortgage were removed; and it may be that in a Court of Chancery having a general jurisdiction in matters of equity, the demandant might have relief, and her demand of dower might be enforced by some specific reme"dy to compel the representatives of the mortgagor to redeem. But whether this can be done in this court, with the very limited jurisdiction indulged to it, which has any resemblance to the powers of a Court of Chancery, is at least questionable." 1 11. In Bolton v. Ballard, 2 the court discussed somewhat at length the question whether a widow is dowable of an equity of redemp- tion, and it was remarked by Parker, C. J., that this question had not at that time received a direct judicial decision in the courts of i At the time Popkiu v. Bumstead and Bird v. Gardner were decided, they were understood to recognize the English doctrine as being in force in Massachusetts. See Stearns' Real Act. [282,] 2d ed. s Bolton v. Ballard, 13 Mass. 227. CH. XXII.] EQUITIES OF REDEMPTION, ETC. 449 Massachusetts. "There are strong reasons," he observed, "in favor of dower under such circumstances ; and by the common law, which, in this regard is founded in public policy as well as upon a due re- gard to the situation of widows, dower is a favored estate. Although between mortgagor and mortgagee, the latter is considered as having the whole estate, defeasible only by a performance of the condition; so that no right can be set up against him by the mortgagor or any person claiming under him ; yet as to all other persons, the mort- gagor remains the lawful proprietor, and may maintain his right and possession, by any action proper for such purpose, in as ample man- ner as if he had never conveyed, until the mortgage is foreclosed, or actual possession taken by the mortgagee. There seems to be no reason then, why the wife should not be endowed, as long as her claim will not interfere with the rights of the mortgagee. For the husband was seized in fact after the execution of the mortgage, against all but him to whom he had thus conveyed ; and if it should be for the interest of the wife, as in some cases it may be, to redeem the estate, there can be no good reason why she should not enjoy an estate, which, but for an incumbrance which she has removed, would always have been subject to her claim." The case, however, was eventually determined upon other grounds. 12. In Snow v. Stevens, 1 it was distinctly determined that a widow is dowable of an equity of redemption as against all persons but the mortgagee and those claiming under him. "The general position that a widow is not dowable of an equity of redemption," said Parker, C. J., "we think is not true, in the extent contended for by the counsel for the tenant. No case has yet been decided upon that principle. In the cases cited, (referring to the previous decisions,) the doctrine goes no further than that the widow of him who was seized only of a right to redeem, should not have dower against the mortgagee. To this effect is the case of Bird v. Gardner which is principally relied upon; in which, although there are some general expressions which go further than the case required; yet the deci- sion was only that the claim of dower could not be maintained against the mortgagee and his assigns." This case was approved in Barker v. Parker, 2 where the right of dower in equities of re- demption was explicitly declared. "If a wife should die seized of such an estate," the court remarked, "it would be such a seizin and 1 Snow v. Stevens, 15 Masa. 278. 2 Barker v. Parker, 17 Mass. 664 vol. i. 29 450 THE LAW OF DOWER. [CH. XXII. estate as would entitle her husband to be a tenant by the curtesy ; and when the husband has been seized of such an estate during the coverture, his widow is dowable, and she would have a right to redeem the same." 13. In subsequent cases this doctrine was treated as clearly and authoritatively settled. Thus, in Peabody v. Patten, 1 Wilde, J., said: " If a widow be dowable of an equity, as was determined in the case of Snow v. Stevens, 15 Mass. R. 278, it follows conclusively that she is entitled to redeem the mortgage." And in Gibson v. Crehore, 2 this principle was again enunciated, and the right of the widow to redeem, even as against a mortgagee, expressly adjudged. "That the widow of a mortgagor is entitled to redeem the mortgage," said the same judge above quoted, "is a necessary inference from the doctrine repeatedly laid down as the law of Massachusetts, that a widow is dowable of an equity. It is a familiar principle in courts of equity that every person interested in an estate mortgaged, is entitled to redeem; and this principle is confirmed, if it requires confirmation, by St. 1798, c. 77, by which it is enacted, 'that the mortgagor or vendor or other persons lawfully claiming under them, shall have right to redeem.' If, therefore, a widow can lawfully claim under her husband, of which there can be no question, she has a right to redeem by the express words of the statute." This ruling was followed in other cases, and eventually became the settled law of the State. 8 14. The right of dower in equities of redemption in Massachusetts is now secured by statute in the following terms : — If, upon a mortgage made by a husband, his wife has released her right of dower ; or if the husband is seized of land subject to a mortgage which is valid and effectual as against his wife, she shall, nevertheless, be entitled to dower in the mortgaged premises, as against every person except the mortgagee and those claiming under him.* 15. New York. — In this State the doctrine that equities of re- demption are subject to dower, has long been well established, not » Peabody v. Patten, 2 Pick. 517, 519. 2 Gibson v. Crehore, 5 Pick. 146 ; S. C. 3 Pick. 475. 3 Walker v. Griswold, 6 Pick. 416 ; Eaton v. Simonds, 14 Pick. 98 ; Jennison v. Hapgood, Ibid. 345 ; Van Vronker v. Eastman, 7 Met. 157 ; Messiter v. Wright, 16 Pick. 151. And see Lund v. Woods, 11 Met. 566; Niles v. Nye, 13 Met. 135; Henry's case, 4 Cush. 25 i ; Newton v. Cook, 4 Gray, 46; Pynchon u. Lester, 6 Gray, 314; Band's note, Sheafe v. O'Neil, 9 Mass. 13. * Gen. Stat. Mass. (I860,) p. 468, ch. 90, \ 2; Rev. Stat. 1836, p. 409, \ 2. CH. XXII.] EQUITIES OF REDEMPTION, ETC. 451 only by judicial decision, but by legislative enactment. Chancellor Kent thus states the origin of the rule in the courts of New York : "In Waters v. Stewart, (1 Caines's Cases in Error, 47,) in which the decree of this court was, in 1804, unanimously affirmed in the Court of Errors, it was established, that an equity of redemption reserved upon a mortgage in fee, might be sold on execution at law against the mortgagor, as real estate, so long as the mortgagor was in pos- session, and there had not been a foreclosure of the mortgage. The purchaser would take as the mortgagor held, subject to the lien and rights of the mortgagee. According to this decision, the mortgagor was regarded as seized at law, before foreclosure or entry by the mortgagee. In pursuance of this decision, it was decided by the Supreme Court, in 1809, in Jackson v. Willard, (4 John. Rep. 41,) that the interest of the mortgagee in the mortgaged premises, before foreclosure or entry by him, was not the subject of sale on execu- tion at law as real estate. The one decision was a necessary con- sequence of the doctrine in the other. This doctrine was first applied in the case of Hitchcock v. Harrington, in 1810, (6 Johns. Rep. 290,) to the case of dower." 1 The following are the leading statu- tory provisions upon the subject : — Sec. 4. Where a person seized of an estate of inheritance in lands, shall have executed a mortgage of such estate before marriage, his widow shall, neverthe- less, be entitled to dower out of the lands mortgaged, as against every person except the mortgagee, and those claiming under him. Sec. 5. Where a husband shall purchase lands during coverture, and shall, at the same time, mortgage his estate in such lands to secure the payment of the purchase money, his widow shall not be entitled to dower out of such lands as against the mortgagee, or those claiming under him, although she shall not have united in such mortgage, but she shall be entitled to her dower as against all other persons. 2 i Titus v. Neilson, 5 John. Ch. 452, 455. » 1 N. Y. Rev. Stat. 1st ed. pp. 740, 741, §?4. 5 ; 3 Kev. Stat. N. T. 5th ed. p. 31, \\ 4, 5. Reference may also be had to the following adjudged cases: Coates u. Cheever, 1 Cow. 460 ; Jackson v. Dewitt, 6 Cow. 316 ; Stow v. Tifft, 15 John. 458 ; Coles v. Coles, 15 John. 319; Collins v. Torry, 7 John. 278; Hitchcock v. Harring- ton, 6 John. 290; Van Duyne v. Thayre, 14 Wend. 233; S. C. 19 Wend. 162; Wheeler v. Morris, 2 Bosw. 524 ; Smith v. Jackson, 2 Edw. Ch. 28 ; Frost v. Peacock, 4 Edw. Ch. 678 ; Titus v. Neilson, 5 John. Ch. 452 ; Hawley ,v. Bradford, 9 Paige, 200 ; Tabele v. Tabele, 1 John. Ch. 45 ; Evertson v. Tappen, 5 John. Ch. 497 ; Swaine v. Perine, Ibid. 482; Bell v. Mayor of N. Y. 10 Paige, 49; Russell v. Austin, 1 Paige, 192; Bank of Ogdensburgh v. Arnold, 5 Paige, 38; Hawley v. James, Ibid. 318; House v. House, 10 Paige, 158 ; Kittle v. Van Dyck, 1 Sandf. Ch. 76 ; Hoogland v. 452 THE LAW OF DOWER. [CH. XXII. 16. New Jersey. — In Montgomery v. Bruere, 1 it was determined that the dower law of New Jersey 2 left the right as it stood at com- mon law, altered by the 27th Henry VIII., 3 and consequently that dower could not be had of equities of redemption. But in the Court of Appeals the judgment in this case was reversed, 4 and it is now well settled in that State, in conformity to the prevailing American doctrine, that a widow is dowable of an equity of redemption, whether the mortgage be made before or after the marriage. 8 17. Maryland. — Under the. Maryland statutes of 1715 and 1766, the wife was held not dowable of equities of redemption. 6 But the law was changed in this respect by the act of 1818. 7 It is held, however, that this statute has no application where the mortgage was made previous to its enactment. 8 18. Tennessee. — In Mclver v. Cherry, 9 it was held that under the act of 1784, equities of redemption were not subject to dower. "By the act of 1784," the court said, " the widow is only dowable of such lands as the husband died seized and possessed of. But he did not die seized of lands which had been conveyed by him to another by a mortgage deed; and therefore the widow is not dowable of such lands." By the acts of 1823 and 1836, however, dower Watt, 2 Sandf. Ch. 148 ; Fitch v. Cotheal, Ibid. 29 ; Church v. Church, 3 Sandf. Ch. 434; Cunningham v. Knight, 1 Barb. 399; Denton v. Nanny, 8 Barb. 618; Runyan v. Stewart, 12 Barb. 537 ; Vartie v. Underwood. 18 Barb. 562 ; Mills v. Van Voorhis, 23 Barb. 125; S. C. 6 Smith, (20 N. Y.) 412; Cooper v. Whitney, 3 Hill, 95; Lawrence v. Miller, 1 Sandf. S. C. R. 516; S. C. 2 Comst. 245. See, also, 4 Kent, 46. 1 Montgomery v. Bruere, 1 South. 260, Southard, J., dissenting. See ante, ch. 19, I 22. > Paterson, 343, \ I ; Laws of N. J. by Justice, 397, \ 1 ; Statutes of N. J. by Phil- lips & Boswell, p. 71, \ 1 ; Nixon's Dig. p. 209, § 1 . 3 See ante, ch. 19, Woodhull v. Keid, 1 Harr. 128. * Thompson v. Boyd, 1 Zab. 58. CH. XXIII.] DOWER AS AGAINST A MORTGAGEE. 467 upon and followed. In that ca8e lands incumbered by a mortgage were sold at executors' sale, and bid in by the mortgagee. Upon the consummation of the sale the mortgagee released the executors from all claim on the bond and mortgage, acknowledging that he had received the amount due thereon, and paid the balance of the pur- chase money in cash. But in the instrument of release he declared that with the assent of the executors he retained the mortgage as a muniment of title to the lands purchased. On this state of facts it was contended in behalf of the demandant, (the widow of the per- son who had owned the equity of redemption,) that the mortgage debt was satisfied and she entitled to dower. And Whitehead, J., was of this opinion, but a majority of the court held otherwise. "Had the executors sold and conveyed the equity of redemption to any other than he who held the mortgage," said Randolph, J., "the seizin of the purchaser would have been simply that of demandant's husband, and of course, dower could not be defeated by the mort- gage, whether it was outstanding, paid off, or transferred to the pur- chaser, but as the sale and conveyance was to the person who held the mortgage, his legal estate under it became perfect, and extin- guished the husband's seizin, and the demandant's dower; for although a court of law may discharge a bond, or cause satisfaction to be entered on the judgment thereon, yet the mortgage might be detained as a title or muniment thereof, which might be important beyond the question of dower, and so long as he retained and held under the mortgage, his seizin was paramount to demandant's claim. Whether a court of equity would grant relief to the demandant under the special circumstances of the case it is not necessary to say, but I do not see any way for us, sitting as a court of law, to do so." 15. The case was taken to the Court of Errors and Appeals, where the judgment of the Supreme Court was affirmed. The court said : " The mortgagee holding, as against the mortgagor, the legal title, subject only to the condition or equity of redemption, may unite that equitable interest to his legal title, either by foreclosure or by the voluntary release or conveyance of the mortgagor. Such union of the legal and equitable estate extinguishes, or, as the phrase is, merges the equitable in the legal estate, and the latter becomes absolute. The estate which was before a fee simple, is still the same, but it is relieved of the condition or equity with which it had been previously incumbered. If by foreclosure, the condition is gone for all purposes, and the estate is absolute in the mortgagee. 468 THE LAW OF DOWER. [CH. XXIII. If by conveyance it is so at law, and if the widow has any right, it is only in equity to redeem pro tanto. In such case the mortgagee does not hold under the subsequent conveyance, but under the mort- gage, and, the equity of redemption being extinguished, his title is paramount to the dower title of the wife. It is an entirely different case where, the mortgage having been discharged, the tenant can rely only on the title derived from the husband. He who claims under the husband by conveyance during coverture will hold subject to the wife's dower." After noticing some of the views urged by counsel on the argument, the court conclude: "It is difficult to see how the prior or subsequent acquisition of the legal title under the mortgage can affect the doctrine of merger, which is said to be in- flexible at law. Merger is said by, Mr. Preston to be the conclusion of law upon the union of two estates : Merger, or in other words extinguishment, is the effect, while union is the cause. It takes place when a greater and a less estate coincide and meet in one and the same person, and an instance given is, when tenant for years obtains the fee; so when legal and equitable estates unite, the equitable must merge in the legal. But it is the union of the two estates which is described as causing this result, and which seems to owe nothing to the mere order of acquisition of those estates. There is, however, nothing in the case itself which makes it necessary to decide whether one who holds the equity of redemption by conveyance, mediate or immediate from the husband, can protect hiniself from dower by the subsequent purchase of a prior mortgage. This question, though discussed as part of the general doctrine, is not raised by the case. The present seems to be the plain case of the equity of redemption united by purchase to the prior legal title of the mortgagee, and thus extinguished at law." 1 16. If there be any doubt or question as to the correctness of the judgment in the foregoing case, it would seem to be respecting the ground upon which it is placed. Where there is a foreclosure and 1 Thompson v. Boyd, 2 Zab. 543. And see opinion of Justice Story in Dexter v. Harris, 2 Mason, 531, 539. In Van Duyne v. Thayre, 19 Wend. 162, the Supreme Court of New York made a similar decision as to the effect of a release to the mort- gagee by the mortgagor of the equity of redemption. The equity was held to be merged or extinguished in the title conveyed by the mortgage. The wife of the mortgagor had not joined in the release, which was executed during coverture, but it was nevertheless held that she had no remedy at law against the mortgagee who was in possession under his title, and that her only mode of relief was in equity by a bill to redeem. But see the case of Woods v. Wallace, post, \ 19. CH. XXIII.] DOWER AS AGAINST A MORTGAGEE. 469 sale of mortgaged premises upon a mortgage valid against the wife, the result is to entirely divest her of all claim upon the lands, and compel her to look to the surplus proceeds of the sale, if any, re- maining after satisfying the mortgage debt. In such case, also, the purchaser takes his title discharged from the mortgage incumbrance. The debt is satisfied from the money which he pays for the lands, and the lien of the mortgage is extinguished. His title is derived from the officer who made the sale, and who conveys to him, not the equity of redemption, merely, but the entire fee simple estate. If the mort- gagee were the purchaser at such sale, it is supposed he would occupy the same position in this respect as any other purchaser. In a case of this kind, it would scarcely be claimed that the title acquired under the sale merges and becomes lost in the prior legal estate held under the forfeited mortgage, and that the latter constitutes the true subsisting title to the lands. And as the law is understood in many of the States, a sale of the real estate of a decedent for the pay- ment of his debts, by his personal representatives, has the same effect in extinguishing liens upon the lands sold, whether by judg- ment or mortgage, as a sale in foreclosure; unless, indeed, the pro- ceeding for, and order of sale, be limited to the equity of redemption. And where, by reason of a power contained in the will, the executor is authorized to make sale of lands for the payment of debts without invoking the aid of a probate court, a sale made in virtue of such power would, it is believed, be attended with the same result. The fund produced by the sale would represent the lands sold, and to that the mortgagee or other incumbrancer would be compelled to look for the payment of his debt. For a misapplication of that fund the remedy of the creditor would be upon the official bond of the executor. In Thompson v. Boyd, doubts having arisen as to the power conferred by the will, an act of the legislature was passed giving full authority to make the sale for the purpose of satisfying the particular mortgage in question and other debts of the testator. There would seem therefore to be good reason to suppose that the purchaser at such sale, whether he were a third person, or the mort- gagee, acquired identically the same title, and the same rights, as against the claim for dower, as if the sale had been made under a decree in foreclosure predicated upon the mortgage. If this be so, it is clear that the widow was not dowable of the lands, but of the surplus, only, in the hands of the executors. And it is difficult to understand upon what principle the mortgage was to be treated as 470 THE LAW OF DOWER. [CH. XXIII. subsisting after the debt it was intended to secure had been paid, or how the title acquired by the sale became merged and extinguished therein. In the opinion delivered in the Court of Errors and Appeals, however, the court maintained that as the testator had nothing but an equity of redemption in the lands, the executors had no power to dispose of any interest beyond that, and in fact that the purchaser acquired nothing more by the sale. Assuming this to be so, then there was not only no foreclosure of the mortgage, but nothing equivalent thereto ; and as the executors could no more deprive the widow of her right to redeem by a sale of the equity of redemption to the mortgagee than by a sale to any third person, it follows that she was as fully invested with that privilege after the sale as before. The right of the widow in this respect, though not expressly decided, appears to be tacitly admitted in the opinions delivered in both courts. And upon a bill to redeem, full payment of the mortgage debt would have been the most that could have been required of her; and had the debt been small as compared with the value of the equity of redemption, the principle adopted by the court would have operated greatly to the disadvantage of the mortgagee. 17. Van Vronker v. Eastman 1 was a case in which the assignee of a mortgage purchased in the mortgaged premises on a sale made to satisfy a mechanic's lien. The widow of the mortgagor filed her bill to redeem and for dower. The court held that she should be endowed upon paying her due proportion of the mortgage debt. As to the extent to which she was required to redeem, the court said: "If the plaintiff had an estate in fee in one-third of the mortgaged premises, she would be bound to pay one-third of the mortgage debt and interest. But as she has only a life estate in the dower, the pay- ment of the full third part would be unjust. The value of her life estate is to be adjusted by taking into consideration her age, and the state of her health, and by ascertaining the value of the residue of the estate, including the reversion of her third part; and her proportion of the debt she is bound to pay will be according to the proportional value of her estate and that of the defendant." This case came under review in McCabe v. Bellows, 2 in which it was held that in order to entitle herself to dower, as against a mortgagee, the widow must 1 Van Vronker v. Eastman, 7 Met. 157. 2 McCabe v. Bellows, 7 Gray, 148. CH. XXIII.] DOWER AS AGAINST A MORTGAGEE. 471 offer to pay the whole amount due on the mortgage. "In Van Vronker v. Eastman," the court observed, "the question whether the plaintiff should pay the entire sum, or only in proportion to the value of her estate in dower, does not seem to have been raised. The prayer of the bill was that the plaintiff might be at liberty to redeem the estate, or contribute towards the redemption thereof. The question discussed was, whether the plaintiff should also pay her proportion of the amount of an incumbrance created under the lien law, and for which the estate had been sold under the provisions of the statute. The court decided that the widow was not bound to pay any proportion of the lien, but that she should pay towards the mortgage in proportion to the value of the estate. As the mort- gagee was the owner also of the equity, he may not have objected • to this course, because, if she paid the whole mortgage debt she would hold the mortgage as equitable assignee, beyond her propor- tion, and the defendant would have again to redeem of her There would seem to be a conflict in the doctrine of the case of Van Vronker v. Eastman with the prior case of Gibson v. Crehore and the subsequent one of Brown v. Lapham ; but it is reconciled by a careful view of the facts of the cases." In Lund v. Woods, 1 the husband of the demandant had conveyed his equity of redemption to the mortgagee without her release of dower. In her bill she prayed that the court would inquire and determine what sum it was just and equitable that she should pay to the defendant in order to be allowed to redeem, so that dower in her right might be set out in one-third part of said premises; and that, upon payment of such sum, if any, dower might be thus set out. The prayer of the bill was granted. 18. In the case of Campbell v. Knights, 2 the grantee, upon receiv- ing his deed, mortgaged the premises to the grantors for the purchase money. After the decease of the former, the dower of his widow was regularly assigned in the premises, and the equity of redemption of the deceased was sold by his administrator to the mortgagees, the conveyance to them containing a reservation in these words : "Re- serving from this conveyance the widow's dower, which has been assigned and set out heretofore." The question presented was, whether the mortgagees were entitled to recover that portion of the estate thus assigned and reserved as the widow's dower. The court i Lund v. Woods, 11 Met. 566. 2 Campbell v. Knights, 24 Maine, 332. 47-2 THE LAW OF DOWER. [CH. XXIII. said: "If their mortgage be, therefore, an outstanding and subsist- ing mortgage upon the estate, they will be entitled to recover, and the widow must redeem it to be restored to her dower. But if by the union of the two titles in the demandants, the incumbrance on the estate was extinguished, they will not be entitled to recover. The general rule is, that the mortgage may be considered as still subsisting, when it is for the interest of the party that it should be, to protect himself against any other charge or incumbrance upon the estate. When, however, it would be inequitable, or contrary to the clear intention of the parties, or conducive to fraud, the mortgage is regarded as extinguished. In this case, as the sale of the equity was made by an administrator, it must be presumed that he con- ducted legally, and that he advertised and sold the estate subject to the widow's right of dower in the premises. If others than the mortgagees had purchased, they must have paid off the mortgage to have relieved the estate, and they would then have obtained all which they purchased, without obtaining an assignment of the mortgage and claiming a contribution from the widow. The demandants purchased the equity subject to the widow's dower in the estate, and they can not be considered as equitably entitled to stand in a more favorable position than other purchasers would have done. It was obviously the intention of the parties at the time of the sale and conveyance, that the widow should be considered as fully entitled to her dower as it had been assigned; and to consider the mortgage as subsisting for the purpose of defeating that dower, would be alike inequitable and contrary to the intentions of the parties." 19. Woods v. Wallace 1 is another case in which the assignee of a mortgage had purchased the equity of redemption from the adminis- trator of the mortgagor. In discussing the right of the widow of the latter to dower, the court went fully into the question as to the ex- tent to which she was compellable to redeem. " Can the widow be permitted to enjoy any interest in the premises, excepting upon the payment by her of the whole Farley mortgage debt to the defend- ant ? Or may she entitle herself to be endowed of any part of the estate upon payment of her fair proportion of the debt, according to her dower interest ? The bill and answer show that the defendant set off to the plaintiff an interest in the premises less than one-third part. But we are of the opinion that she was entitled, upon making i Woods v. Wallace, 10 Foster's N. H. Kep. 384. CH. XXIII.] DOWER AS AGAINST A MORTGAGEE. 473 her proper contribution, to a greater share or interest. Upon pay- ment of her proper share of the debt, she was entitled to be let in upon her dower in the same manner in which she would have been entitled if she had never incumbered the estate by the execution of the mortgage. If we look at the exact relation of the several parties to the estate, we think the rights of each will be apparent. The defendant, in the first place, purchased the Farley mortgage, and it was assigned to him upon his paying the amount of it. He subse- quently purchased the right which Aaron Woods had at his death to redeem the premises. After the purchase of the equity of redemp- tion, as we conceive, he stood in the same position, and had the same rights which he would have had if he had first purchased the equity of redemption, and afterwards had paid the amount of the mortgage, or had taken an assignment of it. In either case he would be in equity and in law the purchaser and owner of the mortgage by way of redemption. The plaintiff also has the same rights in the estate that she would have had if the purchase of the equity had been made by the defendant in the first instance, and the mortgage afterwards. She has an interest in the estate mortgaged, she having executed a mortgage deed, only, and not an absolute deed to the mortgagee. Having an interest in the premises, she has, like all other parties thus situated, a right to redeem. That is a universal principle. What is she to do to entitle herself to redeem, or how is she to avail herself of her right to redeem ? The defendant, when he purchased, and so long as he held the mortgage interest, only, of Farley, was entitled to receive of the plaintiff, or of any one holding the equity of redemption, the entire sum secured by the mortgage. There was no principle of law or equity that could conflict with that right. Upon no ground could the plaintiff, or any other one holding the equity of re- demption, redeem, short of a payment of the entire sum secured by the mortgage. But when the defendant purchased the equity, she became entitled, as against him, to be endowed of one-third part of the premises, upon contributing her just proportion of the mortgage debt, according to the value of her interest. We think it would be idle to hold that the defendant was entitled to receive the whole amount of the mortgage before the complainant could be let in upon her dower estate ; for if she should so pay the amount of the mort- gage, she would clearly be entitled to the whole premises until con- tribution should be made to her by the defendant. The estate of each in the land was liable for the whole mortgage debt. He could 474 THE LAW OF DOWER. [CH. XXIII. avail himself of the equity of redemption purchased by him at the administrator's sale, in no other way than by contributing his fair proportion of the mortgage debt. Why, then, should she be driven to the idle ceremony of paying the whole mortgage, thereby giving the defendant the right to regain his interest in the premises by refunding to her his share? Such a course, we think, is not re- quired, nor is it in accordance with well considered decisions in like cases. Perhaps another view of the case may be taken, leading to the same result. The purchase of the interest of Aaron "Woods in the estate, that is, of the equity of redemption, may well be consid- ered as an extinguishment of so much of the mortgage debt as shall bear the same proportion to the whole debt secured by the mortgage, as the value of that interest in the premises bears to the whole inter- est of both the mortgagors — or the whole estate. Certainly that is an equitable view. It is the duty of a purchaser of an equity to redeem from the mortgage. If he holds the mortgage it should be considered as extinguished to that extent. To entitle herself, then, to be endowed, the complainant must pay the balance to the defend- ant, or offer to do it. This she did offer to do. And so upon paying the same into court, after its amount shall be ascertained by an auditor or master appointed for the purpose, she will be entitled to have her dower set off to her in the premises." 1 20. In a case in Michigan, the holder of a mortgage given by hus- band and wife became the owner of the equity of redemption, and afterwards conveyed the land by warranty deed. It was held that as against the grantee, in a suit by the wife for dower after the hus- band's death, she was entitled to a third of the residue of the whole value of the premises, after deducting the amount of the mortgage. It was further held that where the equity of redemption is conveyed to the assignee of the mortgage under such circumstances, it creates such a merger as to put him in the position of an assignee of the mortgagor, and as satisfying the mortgage under the laws of that State. 2 21. In South Carolina it is held that dower must be assessed on the actual value of the land, subject, only, to the lien of the mort- gage incumbrance. Therefore, where the husband sold to a mort- 1 Woods v. Wallace, 10 Foster, 384. Compare the opinion in this ease with that delivered in Thompson v. Boyd, ante, \ 15. a Snyder v. Snyder, 6 Mich. 470; 2 Comp. Laws Mich. (1857,) \ 2777. CH. XXIII.] DOWER AS AGAINST A MORTGAGEE. 475 gagee to whom the wife had relinquished her dower, and in order to give an unincumbered title it was agreed that the land should be sold under a decree of foreclosure, the mortgagee to bid it off if it did not exceed the stipulated price, and to pay the difference if it sold for less, and the land was sold accordingly, and was bought by the mortgagee for less than the stipulated price, it was held that the dower must be assessed on the price which the mortgagee had agreed to pay, and not on the price for which the land was sold under the decree, the amount of the mortgage debt being first deducted. 1 Redemption by the widow a condition precedent to dower. 22. Where a mortgage is valid and effectual as against the widow, she must exercise the equitable privilege conferred upon her, and actually redeem the lands before she can have an assignment of her dower. If she fail to redeem she can no more be endowed as against the mortgagee, or those claiming under him, than if the mortgage deed had been made absolute. 2 This principle applies with especial force where the mortgagee has entered under the mortgage for for- feiture of the condition. Where this is the case, the mortgagee, or those invested with his rights, may successfully defend the possession in a court of law against a claim for dower, and the widow is com- pelled to go into a court of equity, where, upon redeeming, she may obtain relief. 3 In some cases, the proportion which she should con- tribute by way of redemption must be first ascertained, and fixed by decree. Where this is the case, payment can not be made before instituting the proceeding, but when the amount has once been de- termined, the court will require it to be paid before ordering an assignment of dower. 4 It follows, therefore, that it is not only unnecessary, but impracticable to have an assignment of dower before instituting proceedings to redeem. 5 1 Keith v. Trapier, 1 Bailey's Ch. 63. 2 Watson v. Clendenin, 6 Blackf. 477 ; Gibson v. Crehore, 5 Pick. 146 ; Brown v. Lapham, 3 Cush. 551, 554 ; Cass v. Martin, 6 N. H. 25 ; Rossiter v. Cossit, 15 N. H. 38 ; Hastings v. Stevens, 9 Foster, 564. » Van Duyne v. Thayre, 14 Wend. 233 ; S. C. 19 Wend. 162 ; Thompson v. Boyd, 2 Zab. 543 ; 4 Kent, 45. * Gibson v. Crehore, 5 Pick. 146 ; Danforth v. Smith, 23 Verm. 247 ; Bell v. Mayor of N. T., 10 Paige, 49; Woods v. Wallace, 10 Foster, 384; Van Vronker v. Eastman, 7 Met. 157. » Gibson v. Crehore, 5 Pick. 146, 149. 476 THE LAW OF DOWER. [CH. XXIII. Right of a widow who has redeemed to be reimbursed. 23. It has already been incidentally stated that a widow who has entirely redeemed a mortgage incumbrance, or who has paid more than her proportion, may take and hold possession of the mortgaged premises, as against those whose duty it is to contribute, until she is reimbursed ; and this is the prevailing rule. In Palmes v. Danby, 1 the lord keeper allowed a dowress to redeem a mortgage on land which had descended to an infant, subject to incumbrances, by pay- ing her proportion of the mortgage money, and to hold over for the rest. By this it is understood her proportion of the debt was to be borne by her dower interest, and that she was to hold the land in the character of an assignee of the mortgage, until she was reimbursed as to the residue of the mortgage debt. In Banks v. Sutton, 2 Sir Joseph Jekyll gave to the widow her dower in the equity of redemp- tion of a mortgage in fee ; and though the case has since been over- ruled in the English courts, in respect to her title in such a case, yet upon the assumption that she was entitled, the terms of the decree were, no doubt, just, and ought to be regarded as authority. In that case, the master of the rolls allowed to the widow the arrears of her dower ; she to allow or keep down one-third the interest of the mortgage money unsatisfied at the date of the death of her husband. The rule generally applied in the American courts is in conformity to the principle of these decisions. 3 Foreclosure and sale after the husband's death. 24. The statute of New York provides that where The mortgagee, or those claiming under him, shall, after the death of the hus- band of such widow, cause the land mortgaged to be sold, either under a power of sale contained in the mortgage, or by virtue of the decree of a court of equity, and any surplus shall remain after payment of the moneys due on such mortgage and the costs and charges of the sale, such widow shall, nevertheless, be entitled to the interest or income of the one-third part of such surplus for her life, as her dower. 4 1 Palmes v. Danby, Prec. Ch. 137. The mortgage in this case was for years, only. 2 Banks v. Sutton, 2 P. Wms. 700. 3 Swaine ». Perine, 5 John. Ch. 482 ; Carll v. Butman, 7 Greeul, 102 ; Woods v. Wallace, 10 Foster's N. H. Rep. 384, 388; Bell v. Mayor of N. Y., 10 Paige, 49; Gage v. Ward, 25 Maine, 101, 103 ; McMahan v. Kimball, 3 Blackf. 1, 12 ; Gibson v. Crehore, 5 Pick. 146, 152; Wilkins v. French, 20 Maine, 111 ; 4 Kent, 162. '1N.I. Rev. Stat. pp. 740, 741, § 6; 3 N. Y. Rev. Stat. (5th ed.) p. 31, \ 6. CH. XXIII.] DOWER AS AGAINST A MORTGAGEE. 477 This section embodies the general rule regulating the right of dower in cases where a foreclosure and sale occur after the hus- band's death. Similar enactments are in force in other States and in the District of Columbia. 1 25. There are many reported cases in which this rule is recog- nized and enforced. In Smith v. Jackson and Titus v. Neilson it is said that upon foreclosure, the right of dower, in equity, attaches upon the surplus. 2 So in Hawley v. Bradford, the rule was declared that upon foreclosure and sale after the husband's death, the widow is entitled to the value of a life estate in one-third the surplus pro- ceeds of the sale, after deducting costs of the foreclosure, but without a deduction of the costs of the reference to settle her claim to the surplus. 3 In Tabele v. Tabele, the widow of a mortgagor was made party to a bill of foreclosure. She answered, submitting to the de- cree of the court. It was held that she was entitled to the use of one-third the surplus after satisfying the mortgage, as equitable dower, and to her costs out of the other two- thirds. The third assigned her was ordered to be put at interest for her benefit. 4 In Jennison v. Hapgood, dower was allowed in the proceeds of a sale of an equity of redemption by the administrator of the husband, the proportion assigned for dower being the interest on one-third the sum for which the equity sold, during the life of the widow. 5 That dower attaches upon the surplus in case of foreclosure and sale after the death of the husband, was also held in Mississippi. 6 So in New Jersey 7 and Ohio. 8 In case of such sale, the surplus represents the equity of redemption, and it is upon that surplus dower attaches. 9 1 1 Purple's Dig. 111. Stat. p. 494, oh. 2, \ 5 ; Stat, of 111. (1858,) p. 152, \ 5 ; Rev. Stat. Ark. (1838,) p. 337, \ 6; Dig. Stat. Ark. (1858,) p. 452, \ 6; Rev. Stat. Wis. (1858,) p. 646, I 5 ; Rev. Stat. Ky. (1852,) p. 393, \ 6 ; Stanton's Rev. Ky. Stat. vol. ii. p. 26, g 6; Code of Va. (1849,) p. 474, \ 3; Stat. Oregon, (1855,) p. 405, I 5; Rev. Stat. Minn. (1858,) p. 407, \ 5; 2 Comp. Laws Mich. (1857,) p. 851, \ 5; Rev. Code Dist. Col. (1857,) pp. 199, 200, \ 4. 2 Smith v. Jackson, 2 Edw. Ch. 28 ; Titus v. Neilson, 5 John. Ch. 452. • Hawley v. Bradford, 9 Paige, 200. 1 Tabele v. Tabele, 1 John. Ch. 45 ; accord. Mills v. Van Voorhis, 23 Barb. 125 ; Reed v. Morrison, 12 Serg. & R. 18, 21. B Jennison v. Hapgood, 14 Pick. 345. 6 Rutherford v. Munoe, Walker, 370. And see Mantz v. Buchanan, 1 Md. Ch. Decis. 202. 7 Hartshorne v. Hartshorne, 1 Green's Ch. 349. « Smith v. Handy, 16 Ohio, 237. 9 Hinchman v. Stiles, 1 Stockt. 361 ; Ibid. 454 ; Harrow v. Johnson, 3 Met. Ky. Rep. 578. 478 THE LAW OF DOWER. [CH. XXIII. In South Carolina the same ruling has been made. 1 If the lands sell for less than the mortgage debt, it follows that there is nothing upon which dower can attach. 2 In a case where, after assignment of dower, the mortgagee filed a bill against the heir and personal representative of the husband for foreclosure and sale, and after decree, the commissioner, not being able to sell the premises for a sum sufficient to pay the mortgage money, conveyed them to the mortgagee according to the directions of the decree, it was held that the widow of the mortgagor was not, under these circumstances, entitled to retain her dower in the premises. 3 Foreclosure and sale during the husband's lifetime. 26. A question of much interest and no inconsiderable practical importance arises with respect to the right of a wife to have her contingent dower interest in equities of redemption protected by an investment of a just proportion of the surplus proceeds of a sale, where proceedings in foreclosure are had during the lifetime of the husband. But few reported cases are to be found, however, in which this question was made the subject of judicial consideration. 27. In Titus v. Neilson, 4 husband and wife were made parties defendant to a suit in foreclosure founded upon a mortgage in the execution of which they had joined. The husband died after the decree was rendered, but before the sale. The chancellor gave the widow dower in the surplus remaining after satisfying the decree, but he placed his decision upon the ground that her right had be- come consummate upon the death of her husband before the sale; and he remarked, parenthetically, that it was clear she would have had no claim upon the surplus proceeds, had her husband been living. In the opinion delivered by the vice-chancejior in the case of Bell v. The Mayor of New York, 5 he observed that "upon a sale under a power, in the lifetime of the husband, the surplus is re- garded as personalty and may be paid to the husband ; 6 and upon a chancery sale the husband is entitled to the surplus moneys, and no 1 Keith v. Trapier, 1 Bailey's Ch. 63 ; Brown v. Duncan, 4 MoCord, 346. 2 Nottingham v. Calvert, 1 Carter, 527. » McMahan v. Kimball, 3 Blackf. 1. * Titus v. Neilson, 5 John. Ch. 452. See, also, Bell v. Mayor of New York, 10 Paige, 49, where the husband died pending the suit and before decree. 6 Bell v. The Mayor of New York, 10 Paige, 49, 55. « Wright v. Kose, 2 Sim. & Stu. 323. CH. XXIII.] DOWER AS AGAINST A MORTGAGEE. 479 provision is made for the wife." In support of the latter proposi- tion he cited Titus v. Neilson, but upon appeal the point was not noticed by the chancellor. In Frost v. Peacock, 1 the husband died after sale and confirmation, but before the moneys arising from the sale had been distributed. It was nevertheless held that the widow could not be endowed of the surplus. The vice-chancellor said: "But if that deed had not been made, it would be doubtful whether she could claim dower in the surplus arising from the sale in fore- closure, inasmuch as her husband was living when the decree was made, and when the sale took place, and for a considerable time afterward. Titus v. Neilson, 5 J. C. R. 452; and see Hawley v. Bradford, 9 Paige's C. R. 200. I think, with the master, that her dower is cut off entirely." 28. But in Denton v. Nanny, 2 the Supreme Court of New York, in an elaborate opinion, sustained the claim of the wife to have a proportion of the residuum of the sale invested in such manner as would secure to her the enjoyment of her dower interest in the event she survived her husband. In that case certain judgment creditors of the husband sought to have their claims satisfied from the balance of the moneys remaining after satisfying the mortgage debt, and insisted that inasmuch as the sale had taken place in- the lifetime of the husband, the contingent right of dower of the wife was entirely extinguished. The court refused to sustain this pro- position. They said : "Are not the equities of the wife as strong as those of the husband? During coverture she is often without the means, and therefore without the ability to pay the mortgage debt. And the only real protection which the court can extend to her, when the husband can not or will not pay, is to give her the same right in the surplus proceeds after the satisfaction of the mortgage, as she had in the mortgaged premises before the mortgage was ex- ecuted. If the judgment creditors may take the surplus, so may the husband. Their rights as against the wife are no greater than his; and if the whole surplus is to be handed over to them, then a hus- band, with ample means at his command, may suffer a foreclosure and sale when the premises are oftentimes of greater value than the mortgage debt, for the express purpose of freeing the estate from the first claims of the wife Land has been sold in which the wife had a legal interest, which was not required to pay the 1 Frost v. Peacock, 4 Edw. Ch. 678. 2 Denton v. Nanny, 8 Barb. 618. 480 THE LAW OF DOWER. [CH. XXIII. mortgage debt. And upon the principle of equitable conversion, the proceeds, so far as it respects her, must still be regarded as real estate. The claim of the judgment creditors rests upon the same foundation. Their interest in the land, like the interest of the wife, has been divested by the sale under the decree, and their liens attach in equity upon the proceeds of the land unnecessarily sold, in the same order of priority as they existed upon the land before sale She does not ask to have the money put into her immediate posses- sion. She would have no right to that; but she insists that the residuum of the subject mortgaged, not required to satisfy the mort- gage debt, whether it exists in lands unsold, or in the proceeds of land sold under the power of the court, shall be so appropriated as to secure her dower should she survive her husband. This I think she is entitled to have done. In bringing the rights of the wife within the influence of those equities which the courts are constantly extending to others, no injustice is done to the husband or to his judgment creditors; for, after providing a security for the wife, they have the same rights in the surplus as they had in the lands before the sale under the mortgage." 1 29. The ruling in the foregoing case was approved and followed in Vartie v. Underwood. 2 " The next exception on behalf of the cre- ditors," say the court in the latter case, "raises the question whether or not the wife's inchoate right of dower in the husband's land fol- lows the surplus moneys raised by a sale in virtue of the power of sale in the mortgage executed by her with her husband, and should be protected against the claims of her husband's creditors. The referee held that it did, and that one-third of the surplus should be invested, and the interest, only, paid to the creditors during their joint lives. This follows the decision in Denton v. Nanny. Upon this point I shall repose myself on the authority of that case .... and am content to adopt it until it shall be reversed or overruled by the court of dernier resort." 30. The reasoning in Denton v. Nanny appears to be founded in good sense, and the conclusion to which the court arrived in accordance with substantial justice. It may be somewhat questionable whether courts of chancery, in the exercise of their ordinary equity jurisdic- tion, are clothed with the power to make an order of the character entered in the case referred to, and whether some aid from the legis- i Denton v. Nanny, 8 Barb. 618. 2 Vartie v. Underwood, 18 Barb. 662. CH. XXIII.] DOWER AS AGAINST A MORTGAGEE. 481 lative authority is not necessary to its legitimate exercise. But what- ever argument may be urged against the strict legality of the exercise of the power, there can be no doubt of its intrinsic justice. In an early case that arose in Virginia under the act allowing dower in equitable estates, the hazards to which the dower interest of the wife was exposed, where there was a foreclosure in the lifetime of the husband, were adverted to, and the mode of protection adopted in Denton v. Nanny was there suggested. "It may be said, though," remarked Coalter, J., " that this right is contingent during the life of the husband; but if she was a party, might not a court of equity, on his failure to redeem, very properly provide a settlement for her, equal to one-third of the balance of the purchase money in case she survived? And if this was not done, might not mortgages for small sums be resorted to, in order to defeat dower rights; the wife during coverture not having it in her power to redeem? .... It may, however, be well worthy of consideration, how far it may be the duty of courts in such case as that, or of this, if they are alike in that respect, to direct the balance of the purchase money to be paid into court, and to inquire whether there be a wife entitled, and make provision accordingly. This I merely throw out for consideration and caution, without intending to be understood as giving any opin- ion upon it." 1 Impressed with this view, no doubt, the codifiers of the laws of the District of Columbia have provided, by express en- actment, for the due protection of the interests of the wife, where a sale of mortgaged premises is made in the husband's lifetime. The statute there in force declares that When any real estate in which the wife has her dower right is sold in the lifetime of her husband, under a deed of trust or mortgage executed by the husband before marriage, or in which the wife has joined with privy acknowl- edgment certified as provided in chapter 48, the trustee making such sale shall, under the direction of the Circuit Court, invest one-third of the proceeds of sale remaining after paying off the incumbrances that are valid against the wife, so that she may have secured to her, in the event of her surviving her husband, the interest thereon for the remainder of her life from the date of his death, free from any liability of his. 2 Section eighteen of the same act provides for the release by the wife of her interest in the fund, and for its payment, in the event, of such release, to the husband, or a third person for his benefit. The i Heth v. Cocke, 1 Rand. 344. 1 Rev. Code Diet. Col. (1857,) eh. 70, p. 301, g 17. VOL. I. 31 482 THE LAW OF DOWER. [CH. XXIII. release is required to be executed and acknowledged as in cases of conveyances of real estate. In Virginia, the following still more comprehensive enactment is in force : — Where land is bona fide sold in the lifetime of the husband, to satisfy a lien or incumbrance thereon, created by deed in which the wife has united, or created before the marriage, or otherwise paramount to the wife, she shall have no right to be endowed in the said land. But if a surplus of the proceeds of sale remain after satisfying the said 1 lien or incumbrance, she shall be entitled to dower in said surplus, and a court of equity having jurisdiction of the case, may make such order as may seem to it proper to secure her right. 1 The statute of Kentucky provides that where there is a sale, the widow shall be endowed of the surplus, unless it was received or disposed of by the husband in his lifetime. 2 Whether the wife is barred by 'proceedings in foreclosure in the husband's lifetime to which she was not a party. 31. The weight of authority appears to support the proposition that the inchoate right of dower of a wife is not extinguished, nor her right to redeem impaired by proceedings in foreclosure during the lifetime of her husband, unless she is made a party thereto. Vice- Chancellor Ruggles, in Bell v. The Mayor of New York, 3 intimated very clearly an opinion to this effect, but on appeal the chancellor deemed the consideration of the point not necessary to the final decision of the case. 4 ' In Denton v. Nanny, 5 however, the question was fairly presented, and the court determined, in accordance with the views suggested by the vice-chancellor in the case above referred to, "that a purchaser under a decree of foreclosure and sale in equity, in the lifetime of the husband, where the wife is not made a party, takes the estate subject to her equity of redemption. That -1 Code of Va. (1849,) p. 474, I 3. This section was reported by the revisers with- out the last clause, so as to conform the law to the opinion of the majority of the judges in Wilson v. Davisson, 2 Rob. 398. The legislature added the last clause, which conforms to the opinion of the judge who dissented in that case. — Note to foregoing section, Va. Code, 1849. See post, ch. 25, § 7. » Rev. Stat. Ky. (1852,) p. 393, | 6; Stanton's Rev. vol. ii. p. 26, \ 6. For a discussion of the question relating to the effect of sales in partition, in the husband's lifetime, see ante, ch. 16, \\ 18-33. » Bell v. The Mayor of New York, 10 Paige, 49, 56. " Ibid. 67. 5 Denton v. Nanny, 8 Barb. 618. CH. XXIII.] DOWER AS AGAINST A MORTGAGEE. 483 to bar her right to redeem she is a necessary party." The Superior Court of New York, in the recent case of Wheeler v. Morris, 1 came to a similar conclusion. The following observations are from the opinion delivered in that case : " Upon general principles it would seem quite clear that no separate interest of the wife could be affected by a suit to which she is not a party. Her husband is, in reference to her inchoate right of dower, in no sense her represent- ative. The doubt which has been thrown around the question re- sults from a want of attention to the same distinction which prevails in relation to the right of the plaintiff. At law, the mortgagee could maintain his possession against an action for dower. When he was in lawful possession, she had no claim, except 'through a redemp- tion of the premises. Hence it is said, that when the mortgagee is in, by entry or foreclosure, he may defend himself there, and the consent of the husband is sufficient to enable him to obtain posses- sion. Such a possession may be gained through a foreclosure in the lifetime of the husband although the wife be not a party. Acquir- ing all the interest of the husband, is sufficient for that purpose. Further than this, no case has gone which has fallen under our ob- servation. But a possession gained does not of itself defeat the equity of redemption: it may be defended at lawntmtil payment of the debt. We apprehend, that as to the interests of* all persons who are not parties to the suit for foreclosure, (either directly or by representation,) the suit is wholly inoperative. Making the husband a party doubtless has the same effect as if he and the mortgagee had united in the conveyance to the purchaser, under the decree, but it can have no greater effect." 32. Mills v. Van Voorhis, decided in the Court of Appeals after the determination of the case above referred to, appears to have authoritatively settled the question in New York. The case first came before the Supreme Court, and although the mortgage in ques- tion was given for the purchase money of the lands, that court fol- lowed the decision in Denton v. Nanny, and held that in order to bar her dower the wife must be made a party to the proceeding in foreclosure. 2 The Court of Appeals were of the same opinion. "It is entirely clear, therefore," said Selden, J., "that if the wife of one who owns real estate subject to a mortgage given for purchase 1 Wheeler v. Morris, 2 Bosw. 524. 2 Mills v. Van Voorhis, 23 Barb. 125, S. B. Strong, X, dissenting. 484 THE LAW OF DOWER. [CH. XXIII. money, has any inchoate dower rights at all, in respect to such property, these rights, unless by virtue of the statute, could not be affected by a foreclosure suit to which she is not made a party; and a purchaser under such a foreclosure would not obtain an unincumbered title. That she has rights of this description, under the principles uni- formly applied to mortgages in this country, is, I think, too clear to be denied These views accord with, and are sustained by those expressed by both the vice-chancellor and chancellor in the case of Bell v. The Mayor of New York, so far as that case in- volved the questions presented here. In that case the foreclosure was not completed until after the death of the mortgagor; and hence it did not become necessary to determine the effect of a fore- closure in his lifetime. There is not the slightest reason, however, for giving to such a foreclosure any greater effect in cutting off the dower rights of the wife of the mortgagor, than to one which takes place after his death. The inchoate rights of the wife are as much entitled to protection as the vested rights of the widow. Neither can be impaired by any judicial proceeding to which she is not made a party." 1 33. Upon the general subject of parties to suits in equity, Judge Story says : "Courts of equity adopt two leading principles for de- termining the proper parties to a suit. One of them is a principle admitted in all courts upon questions affecting the suitor's person and liberty, as well as his property, namely, that the rights of no man shall be finally decided in a court of justice unless he himself is present, or at least, until he has had a full opportunity to appear and vindicate his rights. The other is, that when a decision is made upon any particular subject-matter, the rights of all persons whose in- terests are immediately connected with that decision, and affected by it, shall be provided for as far as they reasonably may be." 2 If it be settled, as held in New York, that a wife is entitled to have a por- tion of the surplus proceeds of a sale in foreclosure invested for her benefit, it would seem clear, upon the principle laid down in this text, that she is a necessary party to a proceeding of that character. If the law give her a right to any part of the fund, then she should have an opportunity to assert it, and to protect herself against loss. i Mills v. Van Voorhis, 6 Smith, (20 New York,) 412. See, also, Lewis v. Smith, 5 Selden, 502. * Story's Equity Pleadings, \ 72. CH. XXIII.] DOWER AS AGAINST A MORTGAGEE. 485 In the case of Heth v. Cocke, 1 already referred to, (ante, sec. 30,) the court remarked that they were not aware of any case in which it had been held necessary to make the wife a party where the suit was in the lifetime of the husband; they suggested, however, that it is a grave question whether it is not the duty of courts of equity to protect her interest by some sort of settlement from the fund ; and whether, for this reason, she is not a necessary party. But they left both points undecided. Other reasons why the wife should have her day in court may be stated. For instance, several parcels of real estate may be mortgaged, either of which would be sufficient to satisfy the debt. A due regard to her rights would require that the decree should be so shaped as to preserve to her her interest in the parcels not necessary to be sold. 2 In a case where the mort- gage debt was payable in installments, and the master reported that the amount which had become due could be satisfied by a sale of one parcel, only, of the premises mortgaged, the court recognized the right of the widow to insist that the sale should be limited to that parcel, although the remaining parcels might be insufficient to satisfy the residue of the debt when it became due. 3 34. In Bell v. The Mayor of New York, 4 the husband died pend- ing the suit and before decree. The wife was not made a party to the original bill nor to the proceedings for revivor. The chancellor was unhesitatingly of opinion that she was not bound by the decree rendered in the case against the heirs and representatives of the deceased, and allowed her to redeem. 5 Terms upon which a dowress may redeem where there has been a foreclosure to which she was not a party. 35. This subject is very fully discussed by Chancellor Walworth in Bell v. The Mayor of New York, 6 and his conclusion in the premises is thus expressed : " The adjustment of the equitable rights of the par- ties becomes more complicated in this case, from the circumstance that the complainant has only a life interest in an undivided portion 1 Heth v. Cooke, 1 Rand. 344. 8 Titus v. Neilson, 5 John. Ch. 452. 5 Bank of Ogdensburgh v. Arnold, 5 Paige, 38. * Bell v. The Mayor of New York, 10 Paige, 49. 5 Accord. Heth v. Cocke, 1 Rand. 344. 6 Bell v. The Mayor of New York, 10 Paige, 49. 486 THE LAW OF DOWEK. [CH. XXIII. of the premises, and that there has been a valid foreclosure as to every other estate or interest. And the statute limiting a widow's claim for arrears of dower, to the time when her dower is demanded, and declaring that she shall only recover the arrears for six years, renders the adjustment of her rights still more complicated. Still I think the rights of the parties can be adjusted without departing from the general principles upon which the court permits a redemption in other cases. In the ordinary case of a life estate in the equity of redemption existing in one person and the remainder in fee belong- ing to another, if the mortgagee has foreclosed the equity of redemp- tion of the remainder-man, but has, through inadvertence, neglected to make the owner of the life estate a party to the foreclosure, the latter can not claim possession of the premises during the continu- ance of his life estate, upon paying the interest on the amount due upon the mortgage, from year to year, for life. But the court should, in such case, direct the master to fix a gross sum, upon the principles on which the present value of a life annuity is calculated, considering the annual interest on the amount then due on the mortgage as the annuity. And the proportion of the mortgage money which the owner of the life estate ought to pay being thus ascertained, he should be permitted to redeem his interest in the mortgaged prem- ises by the payment of that amount ; and then to be let into the possession during the continuance of his particular estate in the premises. Or the decree might direct his life estate to be sold, for the purpose of satisfying his proportion, of the debt thus ascertained, and that the surplus arising from such sale should be paid to him. The same mode would have to be adopted to settle the relative pro- portions which the owner of the life estate and the remainder-man ought to pay, to redeem the premises, where the mortgage has not been foreclosed as to either. If the mortgagee has been in posses- sion of the mortgaged premises, in such a case, the mode of ascer- taining the balance due upon the mortgage at the time of redemption will also be precisely the same as if the equity of redemption of the whole premises, in fee, had belonged to one person." 1 * Bell v. The Mayor of New York, 10 Paige, 49, 70. CH. XXIII.] DOWER AS AGAINST A MORTGAGEE. 487 Foreclosure by entry of the mortgagee. 36. By the Revised Statutes of Massachusetts, a mortgagee, after breach of the condition of the mortgage, may make an open and peaceable entry on the estate mortgaged, if not opposed by the mort- gagor or other person claiming it ; and such possession being con- tinued peaceably for three years, will forever foreclose the right of redemption. 1 Several cases have arisen involving a construction of this enactment as between the mortgagee and the widow of the mort- gagor. It has been decided that to render an entry and a subsequent possession for three years effectual in law to foreclose the mortgage, there must be notice, express or implied, to the person who is to be bound by such foreclosure, of the purpose for which the possession is taken and held. And where the purchaser of an equity of redemp- tion was in possession under his deed, and afterwards made an entry and held possession for three years as assignee of the mortgage, with- out notice to the widow of the mortgagor, it was held her right to redeem was not foreclosed. 2 In Lund v. Woods, it was decided that, in order to render possession under the statute effectual against the widow, it was necessary to notify her, after her husband's death, and three years before she made claim for dower, that possession was taken and continued for the purpose of foreclosure. The fact that she had actual knowledge of the possession, and of its continuance, was held not to dispense with the required notice. 3 Whether the widow may have the mortgage satisfied from her hus- band's estate. 37. In Park on Dower, it is said : A dowress, like an heir or de- visee, has, of course, a right to have the personal estate of her hus- band, as far as it will go, applied in discharge of mortgages, and other debts contracted by the husband, which are charges upon the land which she holds in dower. And even where the personal estate is insufficient to discharge the debt, it would seem that in some cases, if not in all, she has the privilege of having the lands which remain in the heir charged therewith, in exoneration of the land assigned to i Rev. Stat. Mass. 1836, p. 634, o, Reed v. Morrison, 12 Serg. & R. 18, 21. 494 THE LAW OP DOWER. [CH. XXIII. mortgage was given only as security for payment and not as pay- ment. Under our statute he could compel the administrator to dis- charge the debt. ... In case the personal estate had been solvent, the heirs at law of said Thomas would have insisted that the admin- istrators should have paid this debt, although the widow would thereby have been let in to dower in the mortgaged estate. For otherwise she would have been entitled to one-half or one-third of the surplus personal estate in fee, whereas by paying the mortgage she would be let in to the enjoyment of one-third of the real estate for life. But in this State neither the solvency nor insolvency of the estate can vary the duties of the administrator. He is bound and compellable to devote the whole of his intestate's estate, real and personal, to the discharge of his debts, without distinction. His manner of doing this ought not to affect the rights of the widow. It comes to the same result, whether he sells the mortgaged estate, free and clear of the mortgage, and pays the mortgage out of the proceeds, and ac- counts with the Court of Probate for the balance, to be appropriated to the payment of the other debts ; or sells it, subject to the mort- gage, with an agreement with the purchaser that he shall pay the mortgage. In either case the debt is paid out of the mortgagor's estate." 1 51. In North Carolina, also, it is held that the personal estate of the husband is the primary fund for the payment of his debts, and that the widow may require the personal representative to apply that fund in relieving the dower lands from existing mortgage incum- brances. 2 1 Mathewson v. Smith, 1 Angell, 22, 25. 2 Campbell v. Murphy, 2 Jones' N. C. Eq. 357. CHAPTER XXIV. DOWER AS AGAINST THE HEIR OF THE MORTGAGOR, OR THE PURCHASER OF THE EQUITY OF REDEMPTION. | 1-21. Where the holder of the equity has redeemed, the widow must contribute. 22-24. Whether she must contribute where the mortgage iB redeemed in the- husband's lifetime. 25. Principal or interest of the mort- gage debt must be payable before con- tribution can be required. 26-28. Extent to which the widow must contribute. 29-36. Rule where the holder of the equity has procured an assignment of the mortgage. 37. Election to contribute, or have the mortgage debt deducted from the value of the land. 38. As against a holder who has failed to redeem, the widow may have dower as of an unincumbered estate. 39-41. Dower where there are suc- cessive mortgages. 42-51. When the mortgage will be treated as satisfied. Where the holder of the equity has redeemed, the widow must contribute. 1. It is a rule in the American States, that where the holder of an equity of redemption has redeemed the lands from a mortgage incumbrance, the lien of which was superior to the dower interest of the widow of the mortgagor, she must contribute her ratable pro- portion of the amount paid before she can be endowed of the estate. This doctrine, although now well settled, was for a time involved in much doubt and confusion, owing to a contrariety of decisions upon the subject; and a full exhibition of the leading cases bearing upon it, and of the grounds upon which they proceeded, seems essential to its proper understanding. 2. In Hitchcock v. Harrington, 1 decided in 1810, the question was presented whether a tenant in possession, who had acquired title through the heir of the mortgagor, and who had afterwards paid off the mortgage, could avail himself of the fact that the mortgage was executed for the purchase money of the lands, and simultaneously 1 Hitchcock v. Harrington, 6 John. 290. (495) 496 THE LAW OF DOWER. [CH. XXIV. with the delivery of the deed, as a defence against the claim of the widow of the mortgagor for dower, until she reimbursed him in the amount paid, and it was held that he could not. Kent, Ch. J., said: " The mortgage no longer exists. It was paid off and discharged without having been foreclosed. The mortgage estate is extinct; and the defendants hold under the title and seizin of the husband existing prior to the mortgage. By discharging the mortgage, the title is to be deduced from the original purchase of the husband, and he is to be considered as having been seized ab initio. The defendants do not pretend to hold under the mortgage. The mort- gagee exercised no other act of ownership than making a lease for years. The title of the defendants is wholly from the heir; and when the heir sold, the amount of the mortgage was no doubt deducted from the purchase money; and the redemption of the mortgage was for the benefit of the title derived from the heir. The question is here the same as if the heir of the husband was the de- fendant ; and I can not perceive any principle that would allow him to set up a satisfied mortgage in bar of dower. It is now the set- tled law in this court, and the same principle has been recognized in the court for the correction of errors, that the mortgagor is to be deemed seized, notwithstanding the mortgage, as to all persons ex- cept the mortgagee and his representatives. When his interest is not in question, the mortgagor, before foreclosure or entry under the mortgage, is now considered, at law, as the owner of the land ; and it does not lie with the heir or his assignee, to deny the seizin, and defeat the wife of her dower. If the present tenant was the mort- gagee, or a person deriving title under the mortgage, the case would present a very distinct subject for consideration; and the question would then arise, whether the husband acquired a seizin by his deed of the 3d of May, 1774, competent to entitle his wife to dower, not- withstanding a mortgage to secure the purchase money was presently, upon delivery of the deed, re-executed by him. But as that ques- tion does not necessarily present itself, the court forbear to discuss and decide it. It is sufficient in this case, to say, that as the tenant claims title under the seizin of the husband, and no right arising under the mortgage and existing in the tenant, is set up, the tenant can not be permitted to avail himself of a satisfied mortgage in bar of the demandant's right of dower." 1 i Hitchcock v. Harrington, 6 John. 290, 294. CH. XXIV.] DOWER AS AGAINST HEIR OF MORTGAGOR, ETC. 497 3, Hitchcock v. Harrington was approved and followed in Collins v. Torry ; l and in the latter case the court also held, that where a purchaser deriving title under the mortgagor becomes the assignee of the mortgage, the effect is to discharge the mortgage entirely in favor of the title under the mortgagor. "The mortgage is there- fore to be considered as satisfied and extinguished," the court ob- served, "and the title of the tenant relates back, and is founded on the seizin of the husband. In no point of view can the mortgage now affect the demandant's claim." The same doctrine was applied in Coates v. Cheever, 2 the court being of opinion that by a union of the equitable and legal estates the mortgage became extinguished, and as a consequence that the widow of the mortgagor became dow- able of the entire estate. " The spirit of the cases cited," said the court, "seems to be this; that where the tenant in possession enters by virtue of a purchase from the mortgagor, then the subsequent purchase of the mortgage by him is an extinguishment, and the widow's right relates back to the purchase by her husband, and she shall recover. But where the tenant enters by virtue of a fore- closure, or after a forfeiture for non-payment of the money, then the estate is deemed never to have vested in the husband, and the widow is not entitled to dower." 4. Thus stood the question in the law courts of New York, in 1823. But in 1812 a case arose in Massachusetts in which the Supreme Court of that State held an entirely different doctrine. The purchaser of an equity of redemption from the administrator of the mortgagor, had paid off the mortgage, and procured the same to be discharged of record. It was held that the widow of the mortgagor, she having joined in the mortgage, was barred of her dower. "When the tenant purchased the equity of redemption," the court said, "it belonged to him to pay the money due on the mortgage, and thus rid his estate of that incumbrance. Having all the equitable interest in himself, when he paid the money due by the mortgage, the legal estate followed the equitable interest, and he became seized of the whole fee simple. If this were not the plain legal operation of the transaction, the law would construe the dis- charge of the mortgage by the mortgagee a release of the legal estate by him to the tenant, who had become lawfully possessed of « Collins v. Torry, 7 John. 278, (1810.) 2 Coates v. Cheerer, 1 Cowen, 463, 479, (1823.) VOL. I 32 498 THE LAW OF DOWER. [CH. XXIV. the equitable interest, and from whom the consideration for that discharge flowed, rather than such a mischief should follow." 1 5. All the foregoing cases were decided in courts of law. Hitch- cock v. Harrington and Popkin v. Bumstead were almost identical in their main features. In the former the title was derived from the heir, and in the latter from the administrator, of the mortgagor. In each case the tenant, while in possession, and necessarily after the death of the husband, had satisfied the mortgage. In the one case the payment was held to entirely extinguish the mortgage, leaving the tenant to rest solely on the title derived from the mort- gagor, and consequently to entitle the widow of the latter to dower in the entire estate; in the other case the equity of redemption was treated as an equitable instead of a legal estate, and it was held that the satisfaction of the mortgage debt operated to convert that equitable into a legal estate, and to invest the tenant with the whole fee simple, to the absolute exclusion of dower. It seems manifest, as the law is now settled, that in each of these cases the widow was entitled to dower; but it is very questionable whether in either case she could be lawfully let in to her dower in the entire estate except upon contribution of her proportion of the amount paid for the re- demption of the mortgage. If she could not, then the proper remedy was by bill in equity to redeem. 6. Collins v. Torry and Coates v. Cheever were decided upon a different principle. In those cases there was no formal discharge of the mortgages, but they were regularly assigned to the respective owners of the equities of redemption. The interest thus acquired, however, was held to merge and become lost in the legal estate, as the equity of redemption was there termed, and hence the assign- ment was regarded as equivalent to an actual payment and discharge of the mortgages; and, with respect to the right of dower, as at- tended with the same result. Assuming the merger to have taken place, as supposed by the court, and treating each transaction as a substantial payment by the respective tenants, the question would yet remain, whether, even in such case, they were not entitled to demand contribution before yielding to a claim for dower. It is difficult to perceive how either of these cases is to be distinguished 1 Popkin v. Bumstead, 8 Mass. 491. And see Bird v. Gardner, 10 Mass. 364. The early case of Majury v. Putnam, (1793,) 4 Dane's Ab. 183, 676, was to the same effect. CH. XXIV.] DOWER AS AGAINST HEIR OF MORTGAGOR, ETC. 499 from any other case in which a person claiming under the hushand has redeemed a mortgage valid and effectual as against the dower interest of the wife. 1 7. Coates v. Oheever and Collins v. Torry were sharply criticised by Cowen, J., in Van Duyne v. Thayre. "In Coates v. Cheever, 1 Cowen, 475, the case of Collins v. Torry is recognized as holding that a purchase of the equity of redemption and entry into posses- sion, followed by an assignment from the mortgagee to the purchaser, shall extinguish the mortgage and entitle the widow to dower; and the court followed the doctrine to that extent, without going back to look at the nature of the extinguishment. The case there ad- judged is not like the one now before us, but it certainly shows Col- lins v. Torry as well as itself to be in conflict with the cases decided in the Supreme Court of Massachusetts, which appear to me to con- tain the true doctrine. The more Collins v. Torry, on which Coates v. Cheever was founded, shall be considered, the more, I venture to say, it will be found to have been without full consideration." 2 8. In 1821, in the case of Swaine v. Perine, 3 the rule as it is now settled, requiring a widow to make contribution, where the heir or other person claiming under the husband has redeemed, was declared and applied by Chancellor Kent. The following is from his opinion in that case: "The plaintiff was a party to the mortgage to Dunn, and her claim to dower was only in the equity of redemption, or the interest which her husband had remaining in the land after satisfac- tion of the mortgage. Her right of dower was, subject to the mort- gage ; and if the heir has been obliged to redeem the land by paying that mortgage to which the plaintiff was a party, she ought, in justice and equity, to contribute her ratable proportion of the moneys paid towards redeeming the mortgage. The redemption was for her benefit so far as respected her dower. To allow her the dower in the land without contribution, would be to give her the same right that she would have been entitled to if there had been no mortgage, or as if she had not duly joined in it. It would be to give her dower in the whole absolute interest and estate in the land, when she was entitled to dower only in a part of that interest and estate." The doctrine thus announced was afterwards adopted in numerous cases to which reference will be made in the ensuing pages of this chapter. i See 12 Law Reporter, 165, 167. 2 Van Duyne v. Thayre, 19 Wend. 162, 171. 8 Swaine v. Perine, 5 John. Ch. 482, 491. 500 THE LAW OF BOWER. [CH. XXIV. 9. With respect to the doctrine of merger as held in Collins v. Torry and Coates v. Cheever, it may be proper to say that, however inflexibly that rule is adhered to in courts of law, in courts of equity the case is different. Where there is a union of rights, equity will, nevertheless, preserve them distinct, if an intention so to do be either express or implied. 1 The distinction stated by Lord Hardwicke is, that when the owner of the fee in which the charge would otherwise merge, manifests his intent that the charge shall subsist, his intent, if clear, will prevail. 2 In Compton v. Oxenden, 3 Lord Thurlow ob- serves : " It is a clear principle, both at law and in equity, that where there is a confusion of rights, where debtor and creditor become the same person, there can be no right put into exertion ; but there is an immediate merger." But equity will preserve the rights distinct, according to the intent, express or implied. Where- ever it is more beneficial for the person entitled to the charge to let the estate stand with theMncumbrance upon it, than to take it dis- charged of the inc^mbr^^&tfeatcircumstance will have a controlling influence in deciding c^^^implied intent. 4 10. The rule upon 4®13gbject is also perspicuously stated by Sir William Grant, inas|feg||||ife rolls, in Forbes v. Moffatt. 5 He says : " It is very clear, tl|j£t^gJrson becoming entitled to an estate, sub- ject to a charge for his^e^t benefit, may, if he chooses, at once take the estate and keep up the charge. Upon this subject a court of equity is not guided by the rules of law. It will sometimes hold a charge extinguished ? where it would subsist at law, and sometimes preserve it where, at law, it would be merged. The question is upon the intention, actual or presumed, of the person in whom the interests are united. In most instances it is, with reference to the party him- self, of no sort of use to have a charge on his own estate ; and where that is the case, it will be held to sink, unless something shall have been done by him to keep it on foot." 6 This reasoning is quoted with approbation by the Court of Errors of New York in the case of James v. Morey, 7 where the whole subject is very fully considered 1 4 Brown's C. C. 403. s Chester v. Willes, Ambler, 246 ; 2 Fonbl. 164, note a. 3 Compton v. Oxenden, 2 Ves. Jr. 264. 4 Per Woodworth, J., in James v. Morey, 2 Cowen, 246, 285. 5 Forbes v. Moffatt, 18 Ves. Jr. 390. 6 Per Sutherland, J., in James v. Morey, 2 Cow. 246, 303. ' James v. Morey, 2 Cow. 246. CH. XXIV.] DOWER AS AGAINST HEIR OP MORTGAGOR, ETC. 501 and discussed. And in courts of equity this doctrine is now gen- erally, if not universally applied for the protection of the holder of the equity of redemption in all cases in which he has become the assignee of the mortgage. 1 11. Bolton v. Ballard 2 was decided in Massachusetts in 1816. In that case the owner of an equity of redemption conveyed the prem- ises in fee, the grantee agreeing to pay to the mortgagee the amount due on the mortgage, and the balance of the purchase money to the grantor, all of which was done accordingly. It was held that the widow of the grantor was entitled to dower in the premises. The court said : "It can not be denied that if Savage Bolton (the grantor) had paid off the mortgage the day before he conveyed to Ballard, her claim would be maintained, for in that case the incumbrance being removed, he would have been restored to an indefeasible estate in fee, and his seizin would have been perfect. Now by the facts agreed, it appears that part of the bargain with, Ballard was, that he should pay off the mortgage ; and a sufficient amount of the purchase money was appropriated to that object. The money was in fact paid, and the bond discharged on the very day the conveyance was made to Ballard ; so that Bolton might, according to the terms of his deed, have conveyed an unincumbered estate, to him. It is not stated whether the payment or the delivery of the deed had precedence in point of time. But to execute the real intention of the parties, it must be supposed that the incumbrance was first removed. Then Savage Bolton was seized so as to vest a right of dower in his wife ; and although, in one view, this may be considered a seizin for an instant ; yet it is to be taken in connection with the former seizin, which, although affected by the rights of the mortgagee, was always in force against every other person. And when those rights ceased to exist, the estate was as if it had never been incumbered." The court distinguished the case from Popkin v. Bumstead, upon the ground that in that case the widow had joined in the mortgage and released her dower, while in the case before them, the husband be- came the owner of the lands subject to the mortgage, and the demandant had never released. It will be observed, however, that in Bolton v. Ballard, the court 1 The authorities upon this point are collected post, \\ 29-36. See, also, 1 Hil- liard on Mortg. ch. 18. 2 Bolton v. Ballard, 13 Mass. 227. 502 THE LAW OF DOWER. [CH. XXIV. treat the transaction precisely as if the whole purchase money had been paid to the husband and he had thereupon satisfied the mort- gage. With respect to such satisfaction, therefore, the purchaser, through whose hands the money passed, was regarded as the mere agent or instrument of the husband, and not as making the disburse- ment in his own right or from his own funds. Upon this view it was clear the widow was under no obligation to make contribution. 12. It was upon this principle that the Supreme Court of Ohio decided the case of Carter v. Goodin. 1 In that case, the vendees of real estate, in compliance with the terms of their contract, and in payment of part of the purchase money, satisfied a subsisting mort- gage given by the vendor, in which the wife of the latter had joined. It was held that she was dowable of the lands. The court said : " Carter by his contract with them, (the vendees,) provided for the ap- plication of a part of the purchase money coming to him in discharge of a balance of his liability to Wister, (the mortgagee.) And when the application was made, Wister released and discharged the mortgage. The money, therefore, which was applied in satisfaction of the debt, was the property of Carter, and not that of Grandin & Gwynne. And Carter suffered no default. He discharged the debt before con- dition broken, and before Wister had acquired any right to enforce the mortgage as the security for his debt. There was plainly no intention to give Grandin & Gwynne any right or interest under the mortgage, as it was released on the payment of the debt, instead of being transferred. ... It is true that the debt was paid and the mortgage discharged after Carter had sold and conveyed to Grandin & Gwynne. But the amount paid by Grandin & Gwynne to Wister on the mortgage, was in reality a payment by them to Carter. It was a part payment of the purchase money coming to Carter. It was a compliance with a stipulation in their contract with Carter, by which his liability to Wister was extinguished. The money, there- fore, thus paid by Grandin & Gwynne, was paid for Carter's use, and in satisfaction of his own debt, in the manner required by him. I know of no ground upon which Grandin & Gwynne can, under these circumstances, claim to be subrogated to the rights of Wister in the mortgage, and to acquire an interest in the premises under a mortgage, the condition of which even was never broken." - For the reasons thus clearly and emphatically expressed, it is i Carter v. Goodin, 3 Ohio State, 75, 78. CH. XXIV.] DOWER AS AGAINST HEIR OF MORTGAGOR, ETC. 503 plain that the cases of Bolton v. Ballard and Carter v. Goodin in no- wise contravene the general doctrine, that where a purchaser under the husband has removed an incumbrance valid against the wife, she must contribute to its redemption. Both those cases proceeded upon the ground that the husband, and not the purchaser, had satisfied the mortgages there in controversy. 13. In Wedge v. Moore, 1 the owner of lands had executed three different mortgages, his wife joining in the second, only. The third mortgagee took possession of the premises under his mort- gage, and paid and procured to be discharged the two prior mort- gages, without the knowledge or consent of the mortgagor, and con- veyed the whole premises to the tenant by a deed with general warranty. It was held that the widow was entitled to dower in the entire premises. The release of dower, in the opinion of the court, was incident to the estate conveyed in mortgage, and when the .mort- gage in which the wife had joined was defeated by the payment of the debt, the release of dower fell with it,- and was avoided as if it had never been made. The court added : " The only circumstance relied on to obviate the conclusion from these plain propositions is, that the mortgage was paid and the discharge of the mortgage pro- cured by the tenant. This, we think, can make no difference. He took his conveyance subject to that incumbrance, and it may be pre- sumed that the consideration paid was less by the amount of that incumbrance, than he would otherwise have paid. He paid off the incumbrance to clear his own estate, and took a discharge. The tenant must either have agreed to pay off and discharge this mort- gage, as part of the purchase, or, otherwise, he would, if evicted, have had a remedy, under his general or speeial warranty against the grantor, the demandant's husband. The fact that the tenant obtained a discharge of the mortgage, and did not take an assign- ment, leads to the conclusion, that he was to pay the mortgage him- self, as, in effect, part of the purchase money. The tenant thus obtained all which his grantor's deed could give him, namely, the estate described, subject to the wife's inchoate right of dower." 14. Eaton v. Simonds 2 was a bill in equity. The complainant had joined with her husband in mortgaging a portion of his estate. The equity of redemption was afterwards sold to the defendant, on an execution issued against the mortgagor, and the defendant, during 1 Wedge v. Moore, 6 Cush. 8. 2 Eaton v. Simonds, 14 Pick. 504 THE LAW OF DOWER." [CH. XXIV. the lifetime of the mortgagor, having paid the amount due to the mortgagee, claimed an assignment of the mortgage ; but the mort- gagee declaring that an assignment would be unnecessary, the mort- gage was discharged upon the margin of the record in the registry of deeds. It was held that this discharge was an extinguishment of the mortgage and not an equitable assignment; and that the widow was entitled to dower in the land free from the incumbrance of the mortgage. • Wilde, J., in delivering the opinion of the court, dis- posed of the question arising upon the discharge of the mortgage, aa follows : " But this discharge, the defendant's counsel contend, will operate as an equitable assignment, as it was so intended to operate by the parties ; and that the union of the legal and equitable titles may well exist without producing the effect of a merger, or the ex- tinguishment of the mortgage. Perhaps this might be so, if the discharge could be considered as an assignment of the mortgage. The general principle is, that when the purchaser of a right to redeem takes an assignment, this shall or shall not operate as an extinguishment of the mortgage, according as the interest of the party taking the assignment may be, and according to the real intent of the parties. Gibson v. Crehore, 3 Pick. 482. But Chief Justice Savage remarks in the case of Coates v. Cheever, 1 Cowen, 460: 'That the spirit of the cases seems to be this; that where the tenant in possession enters by virtue of a purchase from the mort- gagor, then the subsequent purchase of the mortgage by him is an extinguishment.' And that case was decided upon that principle. The same principle is laid down in James v. Morey, 2 Cowen, 301, and in other cases. Forbes v. Moffatt, 18 Ves. 390; Gardner v. Astor, 3 John. Ch. B. 53. The rule at law is inflexible, that where a greater and a less estate meet and coincide in the same person, in one and the same right, without any intermediate estate, the less estate is immediately annihilated or merged; and the same rule applies to the union of the legal estate with the equitable interest. But this rule is not inflexible with courts of equity, but will depend on the intention and interest of the person in whom the estates unite. In the present case, however, the doctrine of merger is not applicable, for the estate in the mortgage of William Eaton was never assigned to the defendant, and never vested in him ; so that it could not unite with the equitable title in him, so as to operate as a merger. But this mortgage has been legally discharged ; the debt has been paid, and can no longer be set up as a subsisting title, either at law or in CH. XXIV.] DOWER AS AGAINST HEIR OF MORTGAGOR, ETC. 505 equity. It makes no difference that the defendant was advised and supposed that a discharge of the mortgage would be equally bene- ficial to him as an assignment. This was a mistake, which, however, this court has no power to correct." 1 15. The court were, subsequently pressed with the argument that the widow was bound to contribute even if the mortgage were to be treated as not subsisting. The tenant had satisfied a mortgage in which the demandant had joined, and which, therefore, was a valid incumbrance upon her estate ; and the obligation rested upon .her, it was urged, to make contribution before she could entitle herself to dower. 2 The court avoided this point by distinguishing between a redemption during the husband's lifetime, and after his death, and holding that in the former case the obligation to contribute did not exist. "In the present case," they said, "the plaintiff clearly was not bound to contribute to the redemption of the first mortgage when it was paid off and discharged. This was done during the life of the husband, and clearly the wife then was not bound to contribute, and the husband was not bound to repay the mortgage debt, unless he saw fit to redeem the equity. The defendant, therefore, redeemed in his own right. He bought the equity subject to these mortgages, and there seems to be nothing inequitable in holding him bound to redeem them. In the case of Swaine v. Perine, 5 John. Ch. R. 482, it is decided by Chancellor Kent, that if the heirs pay a mortgage, the wife shall contribute as to the amount paid by the heirs, "but that as far as the husband had reduced the mortgage in his lifetime, that was doubtless so far a reduction for the benefit of the wife as well as himself. The same rule will hold where payment is made by the assignee of the husband during his lifetime; and this is decisive in the present case." 3 , 16. In the course of their opinion in the foregoing case the court comment upon the ruling in Popkin v. Bumstead in these terms: "We have, however, examined the cases cited by the defendant, but do not find that they impugn, in any respect, our former decision, excepting, perhaps, the case of Popkin v. Bumstead, 8 Mass. R. 491 ; 1 Eaton v. Simonds, 14 Pick. 98, 104. See, accord. Runyan v. Stewart, 12 Barb. 537. 2 This proposition is succinctly and ably stated in an article in the Law Reporter, vol. xii. pp. 165, 167. 3 Eaton v. Simonds, 14 Pick. 98, 107, 108. The correctness of the decision upon this point is doubted. See post, \ 22 el seq. 506 THE LAW OF DOWER. [CH. XXIV. and that is distinguished from this in an important particular. The defendant in that case had purchased of the administrator of the mortgagor, and thereby acquired the same rights which the ad- ministrator would have had if he had paid off the mortgage for the benefit of the heirs. The mortgage was paid off after the death of the mortgagor, when the widow's right of dower had become perfect, and it might therefore be supposed that she was not entitled to dower without contributing her share of the redemption money, and that the case came within the principle laid down in Gibson v. Crehore, that where several are interested in an equity of redemption, and one, only, is willing to redeem, he must pay the whole mortgage debt ; and in such case he is, in a court of equity, considered as assignee of the mortgage, and as standing, after such redemption, in the place of the mortgagee, in relation to the other owners of the equity. Unless the case of Popkin v. Bumstead can be supported on some such distinction, it is difficult to perceive any legal or equi- table ground on which it can stand. It is difficult, also, to say how that case could be decided on rules of equity, it being an action at law; but unless the principle of contribution does apply, the case seems opposed to the whole current of the authorities." 1 17. In the case of Brown v. Lapham, 2 the facts were very com- plicated. The mortgage there in question had passed through many changes, and it was claimed by the widow of the mortgagor that in contemplation of law it had become fully satisfied. But upon a careful analysis of all the facts the court were of opinion that the mortgage debt had never been paid so as to let her in to her right of dower without redemption. That in order to such payment, so as to extinguish the mortgage, the debt must be paid by the hus- band, or out of the husband's funds, or by some person as personal representative, assignee, or person standing in some other relation, which, in legal effect, makes him mortgagor and debtor, and one whose duty it is to pay and discharge the mortgage debt. And it was further said that whether a given transaction shall be held, in legal effect, to operate as a payment and discharge which extin- guishes the mortgage, or as an assignment which preserves and keeps it on foot, does not so much depend upon the form of words used, as upon the relations subsisting between the parties advancing the money, and the party executing the transfer or release, and their i Eaton v. Simonds, 14 Pick. 98, 107. 2 Brown v. Lapham, 3 Cush. 551. CH. XXIV.] DOWER AS AGAINST HEIR OF MORTGAGOR, ETC. 507 relative duties. If the money is advanced by one whose duty it is, by contract or otherwise, to pay and cancel the mortgage, and re- lieve the mortgaged premises of the lien, a duty in the proper per- formance of which others have an interest, it will be held to be a release and not an assignment, although in form it purports to be an assignment. When no such controlling obligation or duty exists, such an assignment will be held to constitute an extinguishment or an assignment, according to the intent of the parties; and their respective interests in the subject will have a strong bearing upon the question of such intent. The court conclude their opinion with the following observations: "If it be suggested, that upon the as- signment of the mortgage to Plunkett and Brayton, who had the equity of redemption as assignees, there was a union of titles which constituted a merger and extinguished the mortgage, the answer is plain, founded on a well-settled rule of law, that when any right, estate or interest intervenes between the particular and general estate, which are thus united, no coalescence takes place, but each remains distinct. If the plaintiff had the right of dower claimed, it was a real interest in the estate intervening between the mortgage and the general right of redemption, which prevented a merger by the union of these titles." 1 , 18. The principle requiring a widow to contribute was applied in Niles v. Nye, 2 under somewhat peculiar circumstances. In that case Nye mortgaged two parcels of real estate, one to Waldo, and the other to a life insurance company, his wife joining in both mort- gages. The equity of redemption in both parcels was afterwards conveyed to Green, who subsequently mortgaged it to Niles, the plaintiff. After the death of Nye, the first mortgagor, his heir took an assignment of the mortgages made to Waldo and the insurance company, and set off to the widow dower in the entire premises, as if they were unincumbered. On a bill in equity brought by Niles against the widow and heir praying to be permitted to redeem the first two mortgages, and to have the assignment of dower set aside, it was held that he was not bound by the assignment ; that the widow had no right of dower as against him without contributing her por- tion towards the redemption of the two mortgages ; and that he had a right to redeem those mortgages on paying what was due thereon, and to have them assigned to himself. i Brown v. Lapham, 3 Cush. 551, 557. * Niles v. Nye, 13 Met. 135. 508 THE LAW OP DOWER. [CH. XXIV. 19. In Cass v. Martin, 1 the grantee of lands held them subject to a mortgage for the purchase money. After his death his ad- ministrator sold the lands to the defendant under an order of the probate court. The purchaser subsequently satisfied the mortgage. It was held that the widow of the mortgagor must make contribu- tion in order to entitle herself to dower. This case is directly opposed to Hitchcock v. Harrington, 2 in so far as the latter case allowed dower without requiring the widow to contribute; it is nevertheless in accordance with the current of authority. 20. The widow must also contribute where the lands in which she claims dower are subject to a charge created by deed or will. This rule was applied in Clough v. Elliott, 3 where the husband of the de- mandant took the lands by devise, charged with a certain provision for the support of his mother ; and in Copp v. Hersey, 4 where the estate was subject to a charge of a similar character. 21. The rule exacting contribution from the widow where a person deriving title through her husband has redeemed the lands from a mortgage binding upon her interest, as a condition upon which she may be let in to her dower, is firmly established in numerous deci- sions made in the courts of the various States. 5 In some of the States this rule has been embodied in a statutory form. Thus, the Massachusetts act, after giving dower in mortgaged premises as against every person but the mortgagee and those claiming under him, 6 provides as follows : — If the heir or other person claiming under the husband, redeems the mortgage, the widow shall either repay such part of the money paid by him as shall be i Cass v. Martin, 6 N. H. 25. a Hitchcock v. Harrington, 6 John. 290 ; ante, \ 2. s Clough v. Elliott, 3 Foster, 182. 1 Copp v. Hersey, 11 Foster, 317. 6 Pynchon v. Lester, 6 Gray, 314 ; McCabe v. Bellows, 7 Gray, 148 ; Niles v. Nye, 13 Met. 135 ; Nevrton v. Cook, 4 Gray, 46 ; Wheeler v. Morris, 2 Bosw. 524; Bell v. Mayor of New York, 10 Paige, 49 ; House v. House, Ibid. 158 ; Evertson v. Tappen, 5 John. Ch. 497; Russell v. Austin, 1 Paige, 192; Swaine v. Perine, 5 John. Ch. 482; Cass v. Marti D , 6 N. H. 25; Rossiter v. Cossit, 15 N. H. 38; Adams v. Hill, 9 Foster, 202 ; Clough u. Elliott, 3 Foster, 182 ; Hastings v. Stevens, 9 Foster, 564 ; Mills v. Van Voorhis, 23 Barb. 125 ; Mantz v. Buchanan, 1 Md. Ch. Decis. 202 ; Woods v. Wallace, ] Foster, 384 ; Copp v. Hersey, 11 Foster, 317 ; Carll v. Butman, 7 Greenl. 102; Simonton v. Gray, 34 Maine, 50; Watson v. Clendenin, 6 Blackf. 477 ; Wheatley v. Calhoun, 12 Leigh, 264 ; Moore v. Rollins, 45 Maine, 493 ; Bar- bour v. Barbour, 46 Maine, 9; Wilkins v. French, 20 Maine, 111; Robinson v. Leavitt, 7 N. H. 104. « Ante, ch. 22, \ 14. CH. XXIV.] DOWER AS AGAINST HEIR OP MORTGAGOR, ETC. 509 equal to the proportion which her interest in the mortgaged premises bears to the whole value thereof ; or she shall, at her election, be entitled to dower only according to the value of the estate after deducting the money paid for the redemption thereof. 1 Provisions of like import are contained in the statutes of several of the other States. 2 Whether the widow is required to contribute where the mortgage is redeemed in the husband's lifetime. 22. It is a question of considerable importance whether a widow is bound to contribute before claiming dower, where a mortgage in- cumbrance has been redeemed by a purchaser during the lifetime of her husband. The author of a recent valuable work on the Law of Real Property, maintains that r» such obligation exists on her part. He says: "During the lifetime of the husband, the wife is not bound to contribute towards the redemption of the mortgage, and is not, therefore, to be charged therewith, whoever may redeem. But upon her husband's death, she takes her interest in the estate, if at all, charged with the mortgage, and if any one interested in the estate, as heir or purchaser, discharge or redeem the mortgage, he thereby acquires an equitable lien upon the estate, which he may hold against the widow till she contributes her proportion of the charge according to the value of her interest." 3 In the first proposition above stated by the learned author he is clearly and explicitly sustained by the case of Eaton v. Simonds,* referred to by him. But it is not so clear that he is supported by the cases of Wedge v. Moore 5 and Smith v. Stan- ley, 6 cited to the same point. 7 In Wedge v. Moore, the payment was made without the knowledge or consent of the husband by a junior mortgagee who had gone into possession under his mortgage. The tenant in possession occupied under a conveyance from this mort- gagee. In Smith v. Stanley, the mortgage in which the wife had i Gen. Stat. Mass. (I860,) p. 469, McArthur t>. Porter, 1 Ohio, 99, 101. 2 Willett v. Beatty, 12 B. Mod. 172. 534 THE LAW OF DOWER. [CH. XXV. could sell nothing more than what George Porter himself could have sold. The land, therefore, was sold by the sheriff and purchased by the complainant subject to this charge of dower. . . . The land was sold as assets in the hands of the administrator for the payment of the debt due of the purchase money. It sold for a sum sufficient, and the proceeds were applied in discharge of that debt. By this payment, the lien for purchase money, whatever its character or effect might be, became extinct. It never passed from Talliaferro, but perished in his hands." 1 6. And in North Carolina it is held that so long as the vendor does not assert his lien, the widow of the vendee may claim dower in the entire estate. Thus, in Thompson v. Thompson, 2 the husband purchased land, took a bond for the title upon making payment of the purchase money, paid a portion of the consideration, and died. Dower was assigned to the widow in the same manner as if full pay- ment had been made. "It was insisted," the court observed, "that if the widow be endowed of one-third of the land, although it is sub- ject to the rights of the vendor, still his security will be impaired, for it will be subdivided and split up into several parts. This does not follow. As long as the vendor is content with his security, and permits the widow to continue in possession of the one-third allotted to her, she can only be required to keep down the interest upon one- third of such part of the purchase money as remains unpaid. When the vendor desires to have his money, if it can not be made out of the personal estate of the vendee, (which is the fund primarily liable,) he can file a bill for the specific performance of the contract, and the money must then be paid, or raised by a sale of the land. Whether the other two-thirds of the land, and the reversion of the third covered by the dower will not be bound to exonerate the widow, by being* applied to the discharge of the debt of her hus- band, is a question that we will not now decide, as it has not been discussed before us." But the widow of a vendee can not sustain a claim for dower against a vendor, nor those succeeding to his rights, where the husband never had the legal title, and the pur- chase money has not been paid. 3 7. Where the vendor's lien is enforced in the lifetime of the hus- band, and a sale of the land produces more money than is required i McArthur v. Porter, 1 Ohio, 99. 2 Thompson v. Thompson, 1 Jones' (N. C.) Law, 430. 3 Barnes v. Gay, 7 Clarke, (Iowa,) 26. CH. XXV.] THE VENDOR'S LIEN. 535 to satisfy the claim of the vendor, it is an unsettled question whether the wife of the vendee may not insist that a proper proportion of the surplus fund shall be invested or secured for her benefit, in the event that she survives her husband. 1 In a case where the vendor of land conveyed the same to the vendee in fee simple, and received part of the purchase money, but no security for the residue, on a bill in equity to enforce the equitable lien of the vendor, a sale was de- creed, and produced more than sufficient to satisfy what remained due to the vendor. The surplus was claimed by judgment creditors of the vendee, and with the assent of the latter a decree was entered directing it to be applied on their judgments. After the death of the vendee his widow filed a bill against the parties in possession under the sale, claiming dower in the land. It was held by two of the judges that the land in the hands of the purchasers was dis- charged from her dower. The third judge dissented, holding that the widow was entitled to dower in the surplus which remained after satisfying the vendor's lien, and that the amount to which she was entitled constituted a charge upon the land in the hands of the pur- chasers. 2 Since this decision, a statute has been adopted in Vir- ginia, providing, in cases of this kind, for the protection of the inchoate dower interest of the wife, by directing that a portion of the surplus fund arising from the sale shall be invested in such manner as to secure her right. 3 1 See ch. 16, \\ 18-33 ; ch. 23, \\ 26-30. » Wilson v. Davisson, 2 Rob. Va. 384. s Code Va. (1849,) p. 474, § 3. This statute is set out, ante, oh. 23, g 30. CHAPTER XXVI. DOWER IN LANDS ACQUIRED FOR PARTNERSHIP USES. 1. When, and under what circumstances, lands acquired for part- nership uses, are to be regarded in equity as realty, and when as personalty, is a vexed question in the law. Upon this subject much diversity of sentiment has existed, and many conflicting decisions have been made. It does not fall within the scope of this work, however, to attempt an analysis of the authorities relating to this general question. Its discussion properly belongs to the department embracing the Law of Partnership, and it has already been fully treated by careful and competent hands. 1 A statement of the gen- eral doctrine appearing to result from the weight of authority, and a reference to the decided cases in which that doctrine has been applied to the right of dower, is all that will be attempted here. 2. The following propositions seem to be established by the American decisions: First. That real estate purchased with part- nership funds, or for the use of the firm, is, in equity, chargeable with the debts of the copartnership, and with any balance that may be due from one copartner to another upon the winding up of the affairs of the firm. Second. That as between the personal repre- sentatives and the heirs at law of the deceased partner, his share of the surplus of the real estate of the copartnership, which remains after paying the 3ebts of the copartnership, and adjusting all the equitable claims of the different members of the firm as between themselves, is to be considered and treated as real estate. 2 Of his share of the surplus thus "treated and considered as real estate, the widow of the deceased partner may claim dower. 3. In equity the right of the partners to have the real estate of the partnership treated as a fund properly applicable to the payment 1 Coll. Partn. 4th Amer. ed. \ 133 et seg., and note; ji 156, and note; Story, Partn. I 93; Gow, Partn. ch. 5, \ 3; 3 Kent, 37-39, and notes; 1 Story's Eq. \ 674. 2 Per Walworth, Chancellor, in Buchan v. Sumner, 2 Barb. Ch. R. 165. (536) CH. XXVI.] PARTNERSHIP LANDS. 537 of the partnership debts, and to the» satisfaction of any balances growing out of the partnership transactions that may be due among themselves, is regarded as attaching upon the instant of the ac- quisition of the estate, and therefore as paramount to the claim of dower. The principle is that the widow can have dower of no greater nor better estate than existed in the husband at some period during the coverture. Her right attaches subject to all incumbrances or equities existing at the time of the marriage, or attaching with the purchase by the husband, and is liable to be defeated by every subsisting claim which might have defeated the husband at the period of his best estate. 4. All the cases agree that where the articles of copartnership contain an express stipulation that upon the dissolution of the part- nership the property of the firm, whether real or personal, shall be first applied to the payment of the debts of the concern, the right of the several partners to insist upon such application, to the exclusion of dower of the widow of any one of their number, is clear and in- contestable. Lord Thurlow, in the early case of Thornton v. Dixon, 1 expressed an opinion to this effect, and later decisions have thoroughly established this point as settled law. 5. Greene v. Greene 2 appears to be the first American case, in which the question was directly presented and decided. Richard- son v. Wyatt 3 was determined several years earlier, and it was there held that the widow of a deceased partner is not entitled to dower in lands purchased with the partnership funds and held in the names of the copartners, or for their use; but the case is very imperfectly re- ported, and the grounds of the decision are not stated. It does not appear whether the articles of copartnership contained any provision respecting the ultimate disposition of the partnership effects, or if any, what that provision was. But in Greene v. Greene, it is shown that by the articles of copartnership it was stipulated that, on the dissolution of the partnership, the property of the concern should all be sold, and the proceeds applied first to the satisfaction of the part- nership debts. The real estate of which dower was demanded was purchased as a site for a manufacturing establishment. Buildings necessary for carrying on the business of the firm were erected i Thornton v. Dixon, 3 Bro. C. C. 199; Park, Dow. 107. 2 Greene v. Greene, 1 Hammond, 535. * Richardson v. Wyatt, 2 Desauss. 471. See, also, Winslow v. Chiffelle, 1 Harper's Eq. 25. 538 THE LAW OF DOWER. [CH. XXVI. thereon, and were occupied and used exclusively for that purpose. The title was taken in the joint names of all the partners. The partnership was insolvent. Upon the decease of one of the part- ners, who was largely indebted to the firm, his widow made claim for dower, but it was held that the equity of the surviving partners to have the lands appropriated to the discharge of the indebtedness of the firm, was superior to her claim. " The widow, by our statute," the court said, " is entitled to dower of all lands of which the husband was seized, as an estate of inheritance, at any time during the cover- ture. Her estate is but a part of his, is derived from him, and must be subject to all incumbrances existing against it at the time of the marriage, or the acquisition by the husband. The husband can, by no act of his, destroy or affect her right of dower where it has once attached, but it only attaches where he has a real beneficial in- terest in the lands of which dower is claimed In this case the property was purchased, and the deed taken in the names of the partners, but it was bought with partnership funds, and for partner- ship uses, and was, therefore, subject to the condition expressed in the articles of partnership, that at its termination, all the property should be sold for the payment of the debts. The" interest which each partner had in the property so purchased, was, at the moment of the acquisition, subject to this condition of the agreement. This agreement, in equity, converts the land into personal property, as between the partners and their creditors, and subjects it to all the liabilities of their joint stock in trade. It shows the original under- standing of the parties, that it is to be treated as partnership effects, and not as an estate in lands held in common The princi- ple has often been recognized that lands bought with partnership funds, and applied to partnership uses, are, when there is an agree- ment that they shall be sold for the payment of debts, or other pur- poses connected with the trade, considered in equity as personal property so far as necessary for any of the purposes of the partner- ship. It is considered as a trust attaching to the estate at the time of its acquisition, and which a court of equity is bound to execute as against the partners, or those claiming under them with notice. .... At the moment of the acquisition of this estate, each part- ner acquired, as against the others, an equitable right to have this trust specifically executed according to the terms of their agreement, and each was under a corresponding obligation to the others to dis- pose of the land, and appropriate the proceeds as originally agreed CH. XXVI.] PARTNERSHIP LANDS. 539 upon. It was an equitable lien which attached to the estate at the moment of its acquisition, and each partner, and all claiming their estate, as the heir, or widow, must take, subject thereto, and can have only the interest that the deceased partner had. It has been too repeatedly determined to be now questioned, that the separate estate of a partner consists of that part of the partnership effects which shall remain after the debts of the partnership and the demands of the partner qua partner are satisfied The interest which William Greene, the husband of the complainant, had at the moment of his death, in the partnership effects, was the surplus after pay- ment of the partnership debts, and the balance due his partners. The case shows that he had never advanced anything; the whole funds, both for the purchase of the lot of which dower is claimed, and for carrying on the business, were advanced by his partners, and at the time of his decease the partnership was insolvent. If this estate is to be considered in equity as personal property, and the court have no hesitation in saying that it must be so considered as between the partners and their creditors, he had no substantial in- terest at the time of his death which would go to his representatives, or could be taken by his separate creditors. If it be considered as real estate, it was acquired subject to a condition or agreement that qualified the estate of the husband ; and the wife, when there is an agreement, unless it were executed after her right attached, would be bound thereby, so as to exclude her right to dower." 1 6. And although the decisions upon the point are, to some extent, conflicting, the better opinion appears to be, that even in the absence of an express agreement, where lands are purchased with partner- ship assets for partnership uses, the law will imply an undertaking, as among the partners, that they shall be subject to the payment of the partnership debts; and consequently, as respects dower, that the same rule applies as where an express agreement to that effect is made. 7. This was decided, after elaborate argument, in Sumner v. Hampson. 2 In that case certain persons had formed a partnership as "builders, master carpenters and general speculators," which was continued until the death of one of the partners. There were no written articles of copartnership. In the course of the business of 1 Greene v. Greene, 1 Hammond's (Ohio) R. 535, 542. a Sumner v. Hampson, 8 Ohio, 328, 364. 540 THE LAW OF DOWER. [CH. XXVI. the firm they acquired certain parcels of real estate with the part- nership funds. This real estate was required for the payment of their outstanding debts. It was held that the widow of the deceased partner was not entitled to dower. "Wherever a proper partnership subsists," the court said, " the partnership debts impose a lien upon the partnership property, both as between the partners themselves, and the creditors and the partners, or their representatives. This lien arises at the acquisition of the property, from the relation itself of partners, and is liable to be defeated by a bona fide sale, only. If lands can be holden in partnership after the same rules as personalty, the right of the dowress must be subordinate to this lien. For her estate is derived from her husband, and is subject to all incumbrances existing against it at the acquisition of his title. In the earlier stages of the common law, no proper partnership in lands could subsist; but as social arrangements became more complex, land was neces- sarily used in partnership purposes, firstly as auxiliary to the general objects of the association, or received for debts, and more lately as direct capital stock. Numerous cases upon this subject are cited in the argument. They show that the same rules which affect chattels, have gradually been extended to lands held for partnership purposes ; that wherever partners manifest their intention to hold lands as part- nership stock, either by express convention or by their course of dealing, it will be treated as such in all respects, in courts of equity. If such be the law in England, and in the elder States, its policy is more imperative here, where real estate is so much the subject of traffic." 8. In Dyer v. Clark, 1 the Supreme Court of Massachusetts, in a carefully considered opinion, came to the same conclusion. Shaw, C. J., said: "When, therefore, one of the partners dies, which is de facto a dissolution of the partnership, it seems to be the dictate of natural equity, that the separate creditors of the deceased partner, the widow, heirs, legatees, and all others, claiming a derivative title to the property of the deceased, and standing on his rights, should take exactly the same measure of justice as such partner himself would have taken, had the partnership been dissolved in his life- time; and such interest would be the net balance of the account, as above stated On the facts of the present case, we are of opinion that the real estate in question was a part of the capital i Dyer v. Clark, 5 Met. 562. CH. XXVI.] PARTNERSHIP LANDS. 541 • stock, purchased out of the partnership funds, for the partnership use, and for the account of the firm. The partners entered into articles as distillers. The business required a large building and fixtures, which they purchased and paid for in part out of the joint funds, and gave notes in the partnership name for the remainder of the price, and the estate was regarded by them as partnership effects. The repairs and improvements were also charged to joint account. These are all decisive indications of joint property. The plaintiff has received a sum in rents and profits that have accrued since his partner's death. The defendant Clark, as administrator of Burleigh, the deceased partner, has sold an undivided half of the property as his, under a license, and with the assent of the plaintiff. The widow joined to release her dower, for a nominal sum. But we can not per- ceive that the right of the widow is distinguishable from that of -the creditors and heirs of the deceased partner. As far as this estate was held in trust by her deceased husband, she was not entitled to dower. For all beyond that, she will be entitled, because he held it as legal estate, unless she is barred by her release ; of which we give no opinion." 9. In Burnside v. Merrick, 1 a similar decision was made by the same court. "The following is from the opinion delivered in that case: "We are then brought to the main question, which was dis- cussed at the bar, namely, whether real estate, purchased by part- ners, for the partnership business, paid for out of their partnership funds, or received in satisfaction for partnership debts, under deeds in common form, conveying the estate to them by their several names, that is, by such a deed as, in case of other parties, would make them tenants in common, shall be considered as partnership stock, and if so, how and in what mode? Though there has been much diversity of judicial opinion upon the subject, we think the prevailing opinion now is that real estate, so acquired, is to be con- sidered at law as the several property of the partners, as tenants in common; yet that it is so held, subject to a trust arising by impli- cation of law, by which it is liable to be sold, and the proceeds brought into the partnership fund, as far as is necessary to pay the debts of the firm, 'and to pay any balance which may be due to the other partners, on a final settlement; and can not be held by the separate owner, except to the extent of his interest in such final 1 Burnside v. Merrick, 4 Met. 537, 541. 542 THE LAW OF DOWER. [CH. XXVI. • balance. And it follows as a necessary consequence, that when the firm is insolvent, the whole of the property, so held, must be brought into the partnership fund, in order to satisfy the partnership credi- tors, as far as it will go for that purpose. And it follows as another necessary consequence, that neither the widow, nor heir at law, can claim any beneficial interest in such estate until the claims of cred- itors are first fully satisfied." The same doctrine was held in the case of Howard v. Priest. 1 10. This principle has also been adopted in Indiana. In the case of Matlock v. Matlock, 2 where the question seems to have been first presented in that State, the court say: "The pleadings show that the lands in controversy were purchased with partnership funds, for the use of the firm, and that their sale is necessary to discharge the debts of the firm. Under these facts the widow is not entitled to dower until the partnership claims are satisfied. It has frequently been decided, that the widow is not entitled to dower as against the vendor, for the purchase money, and this whether the legal estate vests in the husband during his lifetime or not. On similar principles, courts of equity regard a partner's real interest in the firm to be his share of the surplus after the debts of the firm are paid and a final balance ascertained ; and allow each partner a lien on the fund's for his share of the surplus, as well as for his indemnity against the joint debts." The subsequent case of Hale v. Plummer 3 is in accordance with the principle here laid down. 11. So in Kentucky. In the recent case of Galbraith v. Gredge, 4 the court thus express their views upon this subject: "Whether real property, held by partners as partnership stock, is to be regarded as converted into personalty, is a question about which there has been a diversity of opinion,. It would be unprofitable, and a waste of time, to attempt to collate and analyze all the conflicting authorities upon this subject. We are inclined to think that real property held in the joint names of the firm as partnership stock, should be re- garded, at law, in the absence of any agreement or understanding to the contrary, as held and owned by them as tenants in common, subject to the ordinary incidents of tenancies in common. But that, in equity, it should be considered as held by them in trust as part- 1 Howard v. Priest, 5 Met. 582. » Matlock v. Matlock, 5 Ind. 403. s Hale v. Plummer, 6 Ind. 121. * Galbraith v. Gedge, 16 B. Mon. 631. CH. XXVI.] PARTNERSHIP LANDS. 543 nership property, subject to the ordinary rules applicable to partner- ship personal property — as liable to the satisfaction of the claim of each partner upon the others, and as liable to the satisfaction of the debts of the partnership. After the satisfaction' of the claims of the several partners, and of the debts of the concern, the residue of the real estate will be considered, where the partners have not impressed upon it the character of personalty, as belonging to the partners, both in equity and at law, as tenants in common ; and it will be subject to division and several appropriation among them. The land in contest, according to the proof, was held 'as belonging to the firm, being purchased by the money of the firm,' but had not been impressed by them with the character of personalty, so far as the record shows. It was held, therefore, as partnership stock, sub- ject, in equity, to the incidents which have been mentioned; but at law, subject to the rules applicable to a tenancy in common. If these views be correct, as we think they are, in accordance with the tenor of the authorities, it follows, that upon the death of F. Gr. Gedge, his interest in the land descended to his heirs at law, who became tenants in common with the surviving partners, and a right of dower therein, of the widow, attached to this interest; but the rights of the widow and heirs were subject, in equity, to be entirely defeated by the necessity of appropriating the land to the payment of debts. This necessity existed in this case, and the widow and heirs must surrender all claim to the land." 1 12. In Florida, also, it has been held that the widow is not entitled to dower out of real estate purchased by her deceased husband and his partner, with the partnership funds, for partnership purposes, although it is conveyed to them in such manner as to make them tenants in common, until the implied trust to which such property is subject for the payment of the partnership debts has been satisfied. 2 13. And it has been decided in Missouri, that where real estate is bought by a partnership as partnership property, and is afterwards conveyed in payment of a partnership debt, and the firm is insolvent, no right of dower attaches. 3 14. In Maryland, the doctrine that the right of dower is subor- dinate to the equity of the partners to have the lands of the firm 1 See, also, Divine v. Mitchum, 4 B. Mon. 488. 2 Loubat v. Nourse, 5 Florida, 350. * Dubring v. Duhring, 20 Misso. 174. 544 THE LAW OP DOWER. [CH. XXVI. applied in satisfaction of the partnership liabilities, was expressly recognized in the case of Goodburn v. Stevens. 1 15. A case, however, has been determined in New York, in which it was held that,' in the absence of any express agreement of the partners, stipulating that lands acquired by them shall be applied in discharge of the partnership debts, this equitable doctrine does not apply, and the lands of the firm are subject to dower. In that case real estate acquired by partners with their joint funds was afterwards mortgaged by them. Upon the death of one of the partners, his widow, who had joined in the mortgage, was endowed of his share of the equity of redemption. "Although the lands were partnership property," said the vice-chancellor, after reviewing the authorities, "and the transactions relative to their purchase were of a commer- cial nature, and the proceeds (under the circumstances) are liable to be applied to the satisfaction of the joint debts, yet in a strict sense they were real estate and subject to its incidents. The part- ners were respectively seized of a legal estate of inheritance in the lands as tenants in common, notwithstanding it was to be treated as partnership property; and the right of dower attached as an inci- dent to the legal title and seizin. On this account it became neces- sary for Mrs. Jackson to unite with her husband in the mortgages. She had still a right of dower in the equity of redemption. This right was not entirely lost by the foreclosure and sale. It attached in equity to the surplus, after satisfaction of the mortgage debt. Instead of legal, it then became equitable dower ; and which no act by the husband could impair without her concurrence. My conclu- sion on the last point," the vice-chancellor added, "may not seem to be reconcilable with the decision in the Ohio case of Greene v. Greene, 2 where the court proceeded mainly upon the effect of the special agreement in the articles of copartnership, and as to its being sufficient to prevent any right of dower from attaching upon the land. If that decision can be supported upon principle, I appre- hend it can only be done through the particular circumstances of the case. It is sufficient to say the facts in the present case are dif- ferent." 3 16. The ruling in the foregoing case is supported, to some extent, 1 Goodburn v. Stevens, 1 Md. Ch. Decia. 420; S. C. 5 Gill, 1. a Greene v. Greene, 1 Ham. 535; ante, \ 5. » Smith v. Jackson, 2 Edw. Ch. 28, 35. CH. XXVI.] PARTNERSHIP LANDS. 545 by the decision of the master of the rolls, Sir William Grant, in Bell v. Phyn. 1 The real estate in question in the latter case was partnership property, bought with partnership funds, but there was no agreement that it should be applied in satisfaction of the firm debts. The lands were sold, and upon bill filed by a legatee pray- ing an account of the personal estate, and claiming the testator's share of the partnership lands as passing under the will, it was held that the widow of the testator was entitled to dower. The master of the rolls said: " If this was partnership property, there was nothing done by the partners to alter the nature of it. This sum, therefore, for which the estate sold, must be considered of the nature of real estate, and there must be a reference to the master to settle the widow's dower." According to the editor of Collyer on Partner- ship, however, the report omits to state one important fact, namely, that the estate was conveyed to the partners, " to hold to them, their heirs, &c. as tenants in common." 2 But Mr. Eden, in his note to Thornton v. Dixon, 3 intimates that the authority of the case is shaken, if not entirely overruled, by subsequent decisions. 17. The decision in Smith v. Jackson seems to be directly opposed to the current of modern authority, and has received the marked condemnation of Chancellor Kent. "The vice-chancellor in New York, in Smith v. Jackson, 2 Edwards' Rep. 28, reviews all the con- flicting cases on this point; and he follows the Supreme Court of New York, and holds, that though real estate be purchased with joint funds for partnership purposes, there is no survivorship as to the real estate, and the share of a deceased partner, as a tenant in common, descends to his heirs, unless there be an agreement among the partners that the lands so purchased shall be considered as per- sonal property; and that then, upon the foot of that agreement, and not without it, equity would apply the lands to pay partnership debts. Nay, he gives the wife her dower in the partnership share of the husband so descended. The decisions on this side of the ques- tion appear to me to be a sacrifice of a principle of policy, and above all, a principle of justice, to a technical rule of doubtful authority. There is no need of any other agreement than what the law will i Bell v. Phyn, 7 Vesey, Jr. 453. See, also, Park, Dow. 106. 2 Collyer on Partner. 4th Amer. ed. g 133, note, where reference is made to the record. » 3 Bro. C. C. 199. See, also, notes to Bell v. Phyn, 7 Vesey, Jr., Sumner's edition. vol. i. 35 546 THE LAW OF DOWER. [CH. XXVI. necessarily imply, from the fact of an investment of partnership funds, by the firm, in real estate, for partnership purposes." 1 Since the decision in Smith v. Jackson, the rule, in New York, appears to have been settled in accordance with the views here expressed. 2 18. In a case decided in Mississippi the court seem to have adopted, to some extent, the doctrine of Smith v. Jackson. It was there held that if lands are purchased by partners under an agreement that they shall be sold for the benefit of the partnership ; or if, without such agreement they are actually applied for the benefit of the concern, they are to be considered as partnership property, and not subject to dower. But that in the absence of such agreement or application, the rule is otherwise. 3 So where two persons formed a copartner- ship for the purpose of carrying on a mercantile business, and after- wards, by mutual consent, engaged also in the buying and selling of lands and town lots, conveying them, not in their partnership name, but in their individual names as tenants in common, it was held that the lands and lots so conveyed were subject to dower.* 19. It is held in Virginia that in order to exclude dower, the lands must be acquired strictly as partnership property, and be held exclusively for partnership uses. Thus, where A. and B. purchased a mill, and two hundred acres of land for the purpose of carrying on the milling business together, and took a conveyance in their joints names, and, to pay the purchase money, gave their individual bonds, it was adjudged that although such bonds were partly paid out of the copartnership funds, and the residue from money procured on the credit of the partnership, but afterwards repaid to the lender by B. alone, after the death of A., the real estate was not to be con- sidered partnership property, but as land purchased by them indi- vidually, of which each was tenant in common with the other, of an undivided moiety, and that the widow of A. was entitled to dower in his moiety of the same. 5 1 3 Kent, 39, note. 2 Buchan v. Sumner, 2 Barb. Ch. 165, 200, 201 ; Ibid. 336 ; Delmonioo v. Guil- laume, 2 Sandf. Ch. 366; Averill v. Loucks, 6 Barb. S. C. 19, and note, p. 28; Buckley v. Buckley, 11 Barb. S. C. 43. s Wooldridge v. Wilkins, 3 How. Missis. 360. 4 Markham v. Merrett, 7 How. Missis. 437. s 5 Wlieatley v. Calhoun, 12 Leigh, 264. And see Galbraith v. Gedge, 16 B. Mon: 631, 636. CH. XXVI.J PARTNERSHIP LANDS. 547 20. And where, by consent" of the partners, lands purchased with partnership funds are conveyed directly to one of the partners, with an express agreement that he shall hold them in severalty in his own right, and be charged upon the partnership books with the amount paid therefor, it seems that his widow is entitled to dower. This point was determined by Lord Chancellor Loughborough, in Smith v. Smith. 1 In that case lands had been purchased and con- veyed to one partner under an agreement of the character above stated. Some time afterwards a commission of bankruptcy issued against the firm jointly, and the lands were sold by the assignees, under the commission. At the time of the sale, an agreement was executed between the assignees and the wife of the partner to whom the lands had been conveyed, reciting that she claimed dower therein ; that the purchasers under the commission required that she should release her dower and levy a fine ; and that the assignees, as an in- ducement thereto, proposed, in lieu of dower, to allow her the sum of ,£330 in case it should be found she was dowable of the lands. The fine was accordingly levied. The case arose upon bill by the hus- band and wife, praying a specific performance of the agreement; against which it was insisted that the lands were purchased with partnership funds for the use of the partnership, and that therefore they were not subject to dower. The lord chancellor held that the wife was entitled to dower, but he placed his decision upon the ground, expressly, that by agreement of the partners, the husband was to become debtor to the firm for the amount of the partnership funds applied to the purchase of the property. " The distinction is, the agreement as to the purchase of these houses was specific. Upon that they never could be specifically divided, as if they were partW the partnership stock; but when they came to settle, the houses were Robert Smith's, and he was debtor for so much money. The whole turns upon that." 2 21. It has before been stated that it is only to the extent that its appropriation is necessary to the payment of the partnership indebt- edness, and to the equalization and adjustment of the accounts of the several partners as among themselves, that the real estate of the firm will be treated as personalty, even in a court of equity ; 3 and 1 Smith v. Smith, 5 Veaey, Jr. 189. a See, also, Park, Dow. 107 ; 1 Greenl. Cruise, *163, \ 16 ; 1 Washb. Real Prop. 158, (S 12 ; Story on Partn. \\ 92, 93. 3 Ante, \\ 2, 3. 548 THE LAW OF DOWEK. [CH. XXVI. this appears to be the doctrine of the authorities. The surplus, if any, will be considered in equity, as at law, real estate, and the widow of a deceased partner will be dowable of his proportion of such surplus. 1 But the right of the widow to be endowed in part- nership lands is suspended until the purposes of the partnership are accomplished by paying all claims against it, and adjusting the accounts of the partners. For this reason, it is held that she can not claim rents and profits from the death of her husband, but only from the period when the affairs of the partnership are settled and closed. 2 22. But contrary to the general tenor of the American authori- ties, it is held in Virginia, that the real estate of a partnership, where it is. acquired with partnership funds, and is held strictly for partnership uses, is to be regarded in equity as personalty for all purposes, and that no right of dower attaches whether the firm be solvent or not. In Pierce v. Trigg, 3 Tucker, President of the Court of Appeals of that State, after reviewing several of the English cases, remarked: "It has been a vexed question in England, whether the interest of the deceased partner in the real estate belonging to the firm, and the proceeds of the sale of that interest, belong to the personal representative or to the heir. The better opinion gives the fund to the former, and with reason; since upon familiar principles, as the land was bought with the personalty, and was brought into the firm as stock, it ought, as between the executor and the heir, to replace the fund withdrawn from the personal estate. By placing it as stock in the partnership fund, the deceased evinced a design to treat it as personalty, and it ought to go accordingly. The repre- sentatives of the deceased can claim it only as stock, and as stock in trade it is ex vi termini, personal." In this connection the presi- dent referred to the subject of dower in lands so held by partners, and, noticing the case of Smith v. Smith,* said: "In that case, the conveyance was made to one of the partners, and the question was whether his wife had a right of dower. The court decided she had, i Goodburn v. Stevens, 5 Gill, 1 ; S.C.I Md. Ch. Dec. 420 ; Hale v. Plummer, 6 Ind. 121; Matlock v. Matlock, 5 Ind. 403; Galbraith v. Gedge, 16 B. Mon. 631; Loubat v. Nourse, 5 Florida, 350 ; Dyer v. Clark, 5 Met. 562 ; Howard v. Priest, Ibid. 582 ; Burnside v. Merrick, 4 Met. 537 ; 1 Washb. Real Prop. pp. 158-160, \ 12. See, also, Buchan i>. Sumner, 2 Barb. Ch. 165. 3 Goodburn v. Stevens, 1 Md. Ch. Decis. 420; S. C. 5 Gill, 1. • Pierce ». Trigg, 10 Leigh, 405. * See ante, \ 20. CH. XXVI.] PARTNERSHIP LANDS. 549 but upon the specific provisions of the deed, which proved that the purchase was made with the express agreement that her husband, to whom the deed was executed, should not hold for the firm, but in his own right, and be held debtor to the firm for the money advanced. The chancellor held, that but for this specific agreement, ' although the deed was taken to one of the partners, the estate would have been regarded as partnership property,' and so the wife would not have been entitled to dower. See, also, Sir S. Romilly's argument in Bell v. Phyn, 7 Ves. 456. A case has been mentioned by my brother Parker, of Taylor v. Thompson, not reported, in which this court allowed dower to the widow of a partner who had purchased property with the partnership funds. It was not bought for part- nership purposes, nor so held, although it was paid for, I think, out of partnership funds. It resembles, therefore, the case of Smith v. Smith, 5 Ves. 189, and it is probable the court considered the de- fendant as having a mere equity to charge the estate, which could not prevail against the widow's legal right of dower. Be that as it may, the facts of that case are too obscurely recollected to enable me to follow it as a guide. Upon the whole, I am of opinion that the late English cases propound the true rule, and that real estate purchased with partnership funds, must be regarded as partnership stock, and treated as personalty." The firm was solvent, but the court, upon this reasoning, nevertheless held that the widow of one of the parties who had deceased free from all indebtedness to the surviving partners, was not entitled to dower. The members of the court, however, were not unanimous upon this question. Two of the five judges were absent, and one of those present dissented from the decision. 1 1 See, also, Coster ». Clarke, 3 Edw. Ch. 428. CHAPTER XXVII. DOWER IN LANDS APPROPRIATED TO PUBLIC USES. 1. In the time of Henry III. the Great Charter of King John was so amended as to withhold from. the widow the privilege of quaran- tine 1 in the castle of her husband. 2 "This," says Lord Coke, "is intended of a castle, that is warlike, and maintained for the neces- sary defence of the realm, and not for a castle in name maintained for habitation of the owner." 3 Although the language of the Great Charter appears to be limited in this particular, to the quarantine of the widow, it is nevertheless laid down by the same author above quoted, that a castle necessary to the public defence is not subject to dower. " Of a castle that is maintained for the necessary defence of the realm, a woman shall not be endowed, because it ought not to be divided, and the public shall be preferred before the private. But of a castle that is only maintained for the private use and hab- itation of the owner, a woman shall be endowed." 4 Here we see shadowed forth the principle upon which the courts, at a later day, have proceeded, in holding the inchoate right of dower extinguished in lands appropriated, according to the forms of law, to the uses of the public. 2. The English reports furnish no instance in which the applica- bility of this principle to the case of lands taken for public uses, is considered ; but it appears to have been assumed in the time of Mr. Park, that by such appropriation the right of dower was divested. "It should also be noticed," he says, "as the prevailing impression of the profession, that under enabling acts, such as those of the West India and London Dock Companies, the Grand Junction Canal, and the improvements at Temple Bar, Snow Hill, and Smithfield, the wife's title of dower will be bound by the alienation of the husband, 1 See vol. ii. Index, "Quarantine." 3 First Charter of H. III., ch. 7. See ante, ch. 1, I 16. » 2 Inst. 17. * Co. Litt. 31, b. (550) CH. XXVII.] LANDS APPROPRIATED TO PUBLIC USES. 551 although the title is taken by way of conveyance only, and the pur- chase money is not invested in other lands, or paid into the bank. This is understood to have been the opinion of several gentlemen of high professional reputation, in answer to the requisition of an emi nent conveyancer, who, on the behalf of the Corporation of London, had called for fines from vendors whose wives had titles of dower, and the writer believes that the subsequent practice in the great majority of cases has been to dispense with fines." 1 In the United States, however, this question, in different forms, has undergone judicial inquiry on several occasions. 3. The case of Gwynne v. Cincinnati was a petition for dower in grounds occupied by a market-house in the City of Cincinnati. The husband, during coverture, in conjunction with other owners of prop- erty in the same square, agreed to open a way or street through the square, upon which a market-house was to be erected. This agree- ment was carried into effect under an ordinance of the city council. The market-house was placed upon that part of the square given by the deceased husband, a space for a street remaining open on each side of the building. It was held that the widow was not entitled to dower. "The whole space," the court observed, "became subject to the same public regulations as the grounds originally laid out in streets, and for other public uses and purposes. The claim of dower must stand upon the same principles that it would stand in any case to the ground thus appropriated. The counsel for the complainants insist that it is a case to be distinguished from that of public grounds condemned for public uses ; but the court are unable to comprehend the distinction. When a town is laid out, the law requires the plat to be recorded, and by such record the streets become public high- ways, and the title to the grounds set apart for public uses, is vested in the county for the purposes contemplated. The uses thus created are inconsistent with the exertion of any private right while the use remains ; consequently all private rights must be either suspended or abrogated. Such has been the general understanding, not only in this State, but, so far as we are informed, in other States also. A claim for dower in the streets of a town, or in the public jail, court-house, or public offices, would be a novel one, and if sustained, could not be enjoyed without defeating the original purpose and pres- ent use of the grant. It can not be admitted, for the same reason 1 Park, Dow. 246. 552 THE LAW OF DOWER. [CH. XXVII. that it is not admitted to a castle in England. It could yield nothing to the support of the widow, by a direct participation in the posses- sion, without such an interference with the public right to control the whole subject, as to render its enjoyment inconvenient and unsafe, if not impossible." 1 4. In the above case there was no exercise of the right of eminent domain. The title of the public was derived solely from the dedica- tion of the lands to public uses by the husband, and the acceptance thereof by the public authorities. But in Moore v. The City of New York, 2 where a similar decision was made, and where the property involved was of great value, the land had been taken by the city authorities, for the purposes of a public market, by virtue of an act of the legislature. Under this act, commissioners of estimate and assessment were duly appointed, who proceeded, in the performance of their duties, and estimated the amounts due to the several owners of the land. Their report was confirmed by the proper authority. The amount awarded to the husband of the claimant for dower, as the entire value of the land belonging to him, required for the market, was paid to him. The law provided that upon the con- firmation of the report, the land included in it should vest in the corporation of the city, in fee simple absolute. It was held that by these proceedings the contingent right of dower was divested. " The question which is here presented," the court said, "is whether a wife has such an interest in the premises owned by her husband, while her right of dower is inchoate, as can not be divested by this act of the legislature and the proceedings under it. . . . The right being merely an incident to the marriage relation, it seems to us that while this right is thus inchoate, and before it has become vested by the death of the husband, any regulation of it may be made by the legislature, though its operation is, in effect, to divest the right; the marriage relation itself being within the power of the legislature to modify, or even abolish it. The power of the State to take private property for public uses, results from its right of eminent domain, and that power is not restricted, except by the constitutional pro- vision that just compensation shall be made to the owner. In this case the husband was deemed to be the owner of the entire estate in the land, and the inchoate right of the wife was not considered by 1 Gwynne v. Cincinnati, 3 Ohio, 24. a Moore v. The City of N. Y., 4 Sandf. S. C. Rep. 456; S. C. 4 Selden, 110. CH. XXVII.] LANDS APPROPRIATED TO PUBLIC USES. 553 the commissioners, and we think justly so, as an interest distinct from that of her husband, as the subject of estimate as to its value, separate from his. Indeed, the value of her interest, such as it was, would seem to be scarcely capable of being estimated as a separate interest. We see no reason to doubt that the commissioners were right in considering the entire estate in these lands as vested in the husband, and that he having been paid the full value of them, the corporation, by force of the act, became seized of the lands in fee simple absolute, discharged of any claim of dower of the wife therein." 1 5. The case was carried to the Court of Appeals, where the judg- ment of the Superior Court was affirmed. " The estate of the widow," said Gardiner, J., who delivered the opinion of the court, " after as- signment of dower, is a continuation of the estate of her deceased husband. It follows that, while living, he, as owner, is entitled to, and represents the entire fee. This the statute vests, on confirma- tion of the report of the commissioners, and concludes all those en- titled to the land, and all other persons whomsoever. Mrs. Moore, at the time of the proceedings to appropriate the real estate, was not, as we have seen, entitled to it, but her husband ; and she was concluded by the general language of the act, if the statute was not in contravention of the provision of the Constitution of the United States, which prohibits the State from passing any law impairing the obligation of contracts. Dower is not the result of contract, but a positive institution of the State, founded on reasons of public policy. ... In the case under consideration the land was taken against the consent of the husband, by an act of sovereignty, for the public benefit. The only person owning and representing the fee was com- pensated by being paid its full value. The wife had no interest in the land, and the possibility which she did possess was incapable of being estimated with any degree of accuracy. Under these circum- stances the legislature had the power, which I think they have right- fully exercised, to direct that the value of the entire fee should be paid to the husband of the appellant ; and that the corporation, by such payment, in pursuance of the statute, has acquired an inde- feasible title to the premises." 2 These views were referred to and i Moore v. City of N. Y., 4 Sandf. S. C. Rep. 456, 460. » Moore v. City of N. Y., 4 Selden, 110. 554 THE LAW OF DOWER. [CH. XXVII. approved by the Supreme Court of Ohio in a case recently determ- ined in that State. 1 6. The doctrine under consideration has also been extended to the case of lands appropriated by a railroad company for the purposes of their road, under authority of law. This point arose in the case of The Little Miami Railroad Company v. Jones, 2 decided by the Superior Court of Cincinnati, in General Term. "By the appro- priation of the property in question to the use of the defendants," said Storer, J., " in the mode prescribed by the statute, a perpetual servitude at least, over the premises, was acquired by the railroad company, subject only to be divested by a forfeiture of their cor- porate franchise on the judgment of a competent court. Until then the unrestricted possession is not only indispensable for the purposes of the road, but is alone consistent with the paramount right of emi nent domain which had been imparted by the State through the legis- lature. This right, which is an attribute of sovereignty, is necessarily paramount to the claim of the private citizen, and when exerted, it compels the owner to part with his estate for a price to be adjudged by a jury, thereby changing his estate from land into money, and as a full price is required to be paid by the constitution of Ohio, with- out reference to any benefit the contemplated improvement may con- fer, the condemnation of the land was therefore doubtless intended, as it must necessarily do, to confer the whole title upon the corpora- tion, who have paid the assessed value. Such would be the result where the State should directly assert her power, and appropriate, as she has done, the lands of the citizen for navigable canals, or any other public improvement, and we can discover no reason why the same rule should not hold where the railway company, upon whom the power has been conferred by its charter 'to enter upon and take such real property as should be necessary for the construction of their road,' have exerted that power in the mode defined by law, sub- mitted to the judgment of the court, and receive the possession of the land thereby appropriated. On this hypothesis the husband does not alien his estate, as in the case of a sale to a purchaser, nor is it taken to satisfy his debts, in both of which cases dower would still remain, but he is said to lose his estate, or rather to part with it in invitum. He could not have prevented the act of the law transfer- i Weaver v. Gregg, 6 Ohio State K. 547. See ante, eh. 16, \\ 27-31. a Little Miami E.R. Co. v. Jones, 5 Weekly Law Gaz. N. s. p. 5. CH. XXVII.] LANDS APPROPRIATED TO PUBLIC USES. 555 ring his realty, nor yet contest the mode of its execution. An exer- cise of sovereign power by the body, in which for all the purposes of maintaining civil government, it necessarily rests, which existed before any title to property could be said to pass to individuals, as in case of escheat, it becomes reinvested with his title, and may be therefore said, in some sense, to have originally imparted it, must include within the alienation it compels, the entire title. The land is conveyed, and those who represent it must consequently be de- prived of their several rights if they are made parties to the proceed- ing by which it is appropriated : a fortiori where there is no perfect right in esse, but the possibility only, of a future claim." 1 7. The rule fairly deducible from these authorities would seem to exclude dower in all cases where lands are dedicated to the public for a legitimate purpose, and the public have acquired a right to the enjoyment thereof, or where they are lawfully appropriated in virtue of the right of eminent domain. The reasoning of the courts appears to apply as well where lands are granted and used for public parks, public libraries, or other public use of a like character, as where they are devoted to the purposes of a market-place or a public highway. And it is difficult to discern any good ground for a distinction be- tween the two classes of cases. 2 In some of the States burial grounds are expressly exempted from dower by statute. 1 Little Miami R.R. Co. v. Jones, 6 Weekly Law Gaz. n. b. pp. 5, 7. 2 1 Washb. Real Prop. 221, . McRae, 2 Carter, (Ind.) 453; Dean d. Mitchell, 4 J. J. Marsh. 451. » Eng. Lutw. 230; Winch, 80; Wheatley v. Best, Cro. Eliz. 564; Co. Litt. 32, a.; Stoughton v. Leigh, 1 Taunt. 410. * Jenk. Cent. p. 36. * 2 Prest. Conv. 132 ; Park, Dow. 162. And see Earl of Bedford's case, 7 Co. 67, 9, a. In Kentucky it is provided by statute that the wife shall not have dower where a sale is made after marriage to satisfy a lien or incumbrance created by the husband before marriage, except as to the surplus, when not disposed of by the husband. Sec. 6, art. 4, ch. 47, Ky. Rev. St. 393 ; Stanton's Rev. vol. ii. p. 26, g 6. 568 THE LAW OF DOWER. [CH. XXVIII. nizance, and afterwards die, leaving his heir within age, and part of the land is assigned to the wife for her dower, it shall not be extended during the non-age of the heir; for all the land is liable pro rata; and as the land of the heir within age can not be charged, so neither shall the land of the dowress, for otherwise the whole burden would fall upon her. But if all the land should be assigned her for her dower, it would be liable to be extended during the minority of the heir. 1 And it seems, even in the former case, that the noii-age may be relieved against in equity. 2 Mortgages. 24. Where the husband has mortgaged his lands at a date ante- rior to the marriage, his wife is dowable only of the equity of redemp- tion. This rule is sufficiently discussed and explained in a previous chapter. 3 25. In cases of this character the dower interest of the wife is subject to the incumbrance, 4 and if there be a foreclosure or sale under the mortgage after the marriage, her interest in the lands is entirely extinguished, although, as we have seen, she may, as a gen- eral rule, be dowable of the surplus, if any, remaining after satis- fying the mortgage debt. 6 And where it was provided by statute that a widow's dower should not be considered as sold or extinguished by a sale of the husband's property by virtue of any decree, execu- tion, or mortgage to which she was not a party, this enactment was held to have no relation to decrees or other incumbrances existing previously to the marriage. 6 But while a court of chancery will make the security available to the mortgagee, it will also take care i Jenk. Cent. pp. 36, 37. 2 Middleton v. Shelly, 1 Lev. 197, 198; Park, Dow. 236, 237. s Ch. 23; Heth v. Cooke, 1 Rand. 344; Reed v. Morrison, 7 Serg. & R. 18; Smith v. Eustis, 7 Greenl. 41 ; Carll v. Butman, Ibid. 102 ; Hartshorne v. Hartshorne, 1 Green's Ch. 349 ; Montgomery v. Bruere, 1 South. 260. Dower can not be claimed by the widow of the son in opposition to a lien by act of assembly, which bound the land in the lifetime of the father. Lane and Wife v. Gover, 3 Har. & McH. 394. 4 Mantz v. Buchanan, 1 Md. Ch. Decis. 202 ; McMahan v. Kimball, 3 Blackf. 1 ; Fry v. Merchants' Ins. Co., 15 Ala. 810; Davidson v. Graves, 1 Bailey's Ch. 268; Newton v. Cook, 4 Gray, 46. 5 Ante, ch. 23, $$ 24, 25, and cases there cited ; Nottingham v. Calvert, 1 Ind. 527 ; 1 Washb. Real Prop. 203, g 17; 4 Kent, 45; Chew v. Farmers' Bank, 9 Gill, 361. 6 McMahan v. Kimball, 3 Blackf. 1. See Cunningham v. Knight, 1 Barb. 399. CH. XXVIII.] ACTS OP HUSBAND PRIOR TO THE MARRIAGE. 569 that the interest of the widow is not affected more than may be necessary to protect the mortgage debt, and insure its payment. 1 Release of the equity of redemption during coverture by the hus- band alone. 26. In Jackson v. Dewitt, 2 the husband purchased lands prior to his marriage, and received a deed therefor, and at the same time gave back a mortgage to secure the payment of a portion of the purchase money. After his marriage he reconveyed the lands to the mort- gagee in satisfaction of the purchase money yet remaining unpaid, his wife not joining in the conveyance. She survived him, and the question arose whether she was entitled to be endowed of the prem- ises. The court held adversely to her claim. "From the case of Stow v. Tifft, 15 John. 458," remarked Woodworth, Judge, in deliv- ering the opinion of the court, "it is evident that, up to the time that Depuy released, his wife could have no claim of dower ; for the husband had an instantaneous seizin, only. If the release operated as a discharge of the mortgage merely, the widow became entitled to dower, the husband being considered as having been seized ab initio. 6 John. 294. But there was no actual payment of the mortgage, leaving the husband seized. There was a merger, by which, it is true, the mortgage was satisfied ; but the same act annihilated the mortgagor's title. There was not a moment of time between the discharge of the mortgage, and the vesting of the title in the mort- gagee. It was all done uno flatu. If, then, no right of dower ex- isted the moment previous to the merger, (and clearly there did not,) and if the release extinguished all the title the mortgagor ever had, it follows that there never was an instant of time in which the widow was entitled to dower." 3 27. In Rands v. Kendall, 4 a mortgage given by the husband had become absolute before his marriage, and during the coverture he executed a release of the equity of redemption to the assignee of the mortgagee, and it was held that the dower of his wife was thereby defeated. This decision was placed upon the ground that, by reason of the forfeiture of the condition of the mortgage, the husband, at 1 Fry v. Merchants' Ins. Co., 15 Ala. 810. 2 Jackson v. Dewitt, 6 Cow. 316. 3 And see 4 Kent, 45 ; Cunningham v. Knight, 1 Barb. 399. * Rands v. Kendall, 15 Ohio, 671. 570 THE LAW OF DOWER. [CH. XXVIII. the date of the marriage, as against the mortgagee, had but an equity in the land, which it was in his power to surrender by his individual act during coverture, the statute of that State giving dower in such equitable estates only as the husband was possessed of at the time of his death. "Complainant's counsel contend," say the court, "that as it [the mortgage] was a simple security for the payment of a debt, the mortgage is a mere incident to the debt, and that although the condition is broken, yet that the legal title to the land remains, as before, in the mortgagor. The modern decisions and the decisions of this court, to a certain extent, favor this opinion. It has been repeatedly held that an execution might be levied on the land, the mortgagor being in possession ; that the mortgagor was to be con- sidered as having the legal title. But it has never been so held but with this restriction ; that as between the parties to a mortgage, the deed, after condition broken, becomes absolute. As to all the world but the parties, the legal title is considered as in the mortgagor ; but as between the parties and those claiming under them, the legal title is vested in the mortgagee. I think I am not mistaken in saying that such has been the uniform language of the court ; and there- fore it is, that after condition broken, the mortgagee may recover the possession of the land in an action of ejectment. Without the legal title he could not so recover. Such being the law, it follows, that the condition being broken by the non-payment of the interest, which fell due on the 24th April, 1824, the legal title then became, as between Ferguson and Coleman, vested in Ferguson, and was never afterwards vested in Coleman. It was after this period that his marriage with Rachel Rand took place, and during the coverture he had not an estate of inheritance in the land in which dower is demanded Having but an equity, he could transfer it by his own deed, and thereby defeat his wife of dower." Read, J., delivered an able dissenting opinion, in which, upon a full review of the authori- ties, he maintained that by the settled law, the mortgagee, even after condition broken, and until foreclosure, is regarded at law as well as in equity, as a mere creditor, having a specific lien on the property for the payment of his debt. He insisted, as a necessary result of these premises, that in the case under consideration, the husband, during the coverture, was seized of an estate of inheritance within the meaning of the act relating to dower, and consequently that the widow was entitled to a decree. 28. The doctrine of the foregoing cases is opposed to the general CH. XXVIII.] ACTS OP HUSBAND PRIOR TO THE MARRIAGE. 571 current of authority. In Lund v. Woods, 1 lands were conveyed to the husband during the coverture, subject to an outstanding mort- gage. He subsequently released the equity of redemption to the mortgagee, the wife not joining. It was held that she was not barred, but might claim dower upon redeeming the lands. So in Van Duyne v. Thayre, 2 the husband mortgaged the premises before coverture, and released to the heirs of the mortgagee after the marriage, his wife not joining. Her right to be endowed in equity, upon redeem- ing the mortgage, was not denied. In speaking of the case of Jack- son v. Dewitt, the court, in Wheeler v. Morris, 3 used this language: "The defendant in ejectment was in possession under the title of the mortgagee, and it was held that the widow of the mortgagor could not maintain the action to recover her dower. The ruling must have been the same had that been a case in which her husband had been a purchaser of the premises subject to the mortgage. All, there- fore, which was necessarily involved in, or decided by, these cases, was, that the conveyance to the husband, who gave back a mortgage for purchase money, did not give him such a seizin that the right of dower of the wife attached, intermediate the deed and the mortgage ; and therefore that she could not maintain an action at law against the mortgagee, or those claiming under him. As against them, she was not entitled at law to dower." The point was more elaborately discussed in Mills v. Van Voorhis. 4 "Both these cases, indeed," the court observed, referring to Jackson v. Dewitt and Stow v. Tifft, 5 "differ from the present, in that the mortgage in each of them was executed before the marriage; but I am unable to see how that fact can affect the question, or weaken the application of the reasoning of the court. If the husband, upon a conveyance to him for a consideration which he at the time executes a mortgage to secure, in whole or in part, obtains no seizin which is dowable at all, and acquires no estate out of which his wife or widow can be en- dowed, for the want of any actual or legal seizin, until the mortgage given for the purchase money is satisfied, then, evidently, the rule and the result must be the same, whether the mortgage be executed during the coverture, or before. But we are all agreed that the > Lund v. Woods, 11 Met. 566. 2 Van Duyne v. Thayre, 19 Wend. 162. 3 Wheeler v. Morris, 2 Bosw. 524, 531. * Mills v. Van Voorhis, 23 Barb. 125; S. C. 20 N. Y. (6 Smith,) 412. 5 Jackson v. Dewitt, cited ante, \ 26; Stow v. Tifft, 15 John. 458. 572 THE LAW OF DOWER. [CH. XXVIII. doctrine of these cases is erroneous. Jackson v. Dewitt was indeed correctly decided. That was ejectment for dower by the widow against the tenant of a mortgagee for purchase money to whom the husband had released his equity of redemption. Obviously, all that was necessary to sustain the decision of the court against the plain- tiff in that case, was to hold that the mortgage was still outstanding as to the widow; and since she could not, of course, have dower against, and in preference to the mortgage, she could not bring an action at law against the mortgagee in possession, nor claim her dower, without contributing justly to the redemption of the mort- gage to which it was subject. The doctrine of instantaneous seizin was laid down in reference to, and for the benefit and protection of the mortgagee for the purchase money when the wife did not sign the mortgage. As to him, and his mortgage, the mortgagor had no seizin of which his wife can be endowed. But as to all the world beside, in this, as in every other case of a mortgage, the equity of redemp- tion is the legal estate in the land, and the mortgage is simply a security for money. As long as this is so, and the mortgage is not regarded as a reconveyance of the title and estate, dower must attach to such equity of redemption, subject to the prior rights and equities of the mortgagee." 1 Judgments. 29. Where a judgment lien is acquired against the husband's land prior to his marriage, and the land is sold subsequently thereto in satisfaction of the judgment debt, the right of dower of his wife in the land is defeated. 2 And in one case it was decided that the arrest of the husband on a ca. sa. issued before the marriage, did not prevent the 1 Accord. 1 Washb. on Real Prop. p. 181, $ 14. This author justly observes: "It is apprehended that in those States where the mortgagor is regarded as the holder of the legal estate with its incidents, and the interest of the mortgagee as a lien or pledge, only, for his debt, the right of dower in such a case would attach in respect to the mortgagor's estate, the equity of redemption, which he could not, by his own deed alone, defeat." See, also, post, ch. 29, \ 43. 2 Robbins v. Robbins, 8 Blackf. 174; Whitehead v. Cummins, 2 Carter, (Ind.) 58; Queen Anne's Co. v. Pratt, 10 Md. 5; Sandford v. McLean, 3 Paige, 117; Brown v. Williams, 31 Maine, 403. See, also, McMahan v. Kimball, 3 Blackf. 1 ; Bisland v. Hewett, 11 S. & M. 164; Wilson v. Davisson, 2 Rob. Va. 398. By the Kentucky statute, where a sale is made after marriage to satisfy a lien or incumbrance created before marriage, the wife's dower in the land is divested. Ky. Rev. Stat. ch. 47, art. 4, I 6. CH. XXVIII.] ACTS OE HUSBAND PRIOR TO THE MARRIAGE. 573 application of this rule. 1 Nor is the wife permitted to avail herself of such irregularities or informalities in the proceedings connected with the sale, as do not render it void. 2 Where lands are taken in attachment before the marriage, but there is no judgment until after the marriage, a subsequent sale under the judgment, and in virtue of the proceedings in attachment, is governed by the same rule, and the wife of the judgment debtor has no dower. 3 But where the judgment is entered on the same day of the marriage, and no pre- vious lien was acquired, the dower right of the wife is protected, and the judgment is made subordinate thereto. 4 30. It was held in Georgia, that where the land is not sold during the lifetime of the husband, although judgment was recovered prior to the marriage, and the husband's estate is insolvent, the wife is, nevertheless, dowable. Although the judgment constitutes a lien upon the land, the husband's seizin is not divested until a levy and sale in the manner pointed out by law, and consequently the right of dower is not defeated. 6 31. And it is settled that until a sale is actually made under the judgment, the widow may have dower assigned her, subject thereto. This point was determined in Bobbins v. Robbins. 6 "The judgment liens," the court remarked in that case, "as they did not affect the seizin of the husband, did not destroy the right of the widow to dower. It is true, that as the liens existed at the time of the marriage, the widow must take her dower subject to them. The judgment credi- tors, by enforcing their liens' may dispossess her ; but her right is good against every other person." In Sandford v. McLean, 7 the chancellor made the following observations on the subject of the wife's dower where there are outstanding judgments recovered be- fore tbe marriage: "If the widow should be compelled to pay off the prior judgments to save her dower, she might have an equitable claim to be substituted in the place of the judgment creditors, with the right to collect the amount back again out of the estate which 1 Queen Anne's Co. v. Pratt, 10 Md. 5. a Ibid. 3 Brown v. Williams, 31 Maine, 403. 1 Ingram v. Morris, 4 Harring. 111. The same principle is applied to convey- ances. Stewart i>. Stewart, 3 J. J. Marsh. 48. See ante, § 6. 5 Green v. Causey, 10 Geo. 435. The question whether the widow took her dower subject to the incumbrance of the judgment, was not made in the record, and was left undetermined. 6 Robbins v. Robbins, 8 Blackf. 174. ' Sandford ». McLean, 3 Paige, 117. 574 THE LAW OF DOWER. [CH. XXVIII. her husband had at the time of the marriage, exclusive of her dower therein. And if the creditors have released the interest of the hus- band from the operation of the judgments, so that she can not pro- tect herself by a substitution, perhaps a court of equity would not allow them to sell her dower right in the land to satisfy their debts." 32. In Whitehead v. Cummins, 1 certain judgments were in force against the husband, and a lien upon his lands at the time of the mar- riage. Subsequently, additional judgments were recovered against him, and executions issued thereon, and levied upon the same lands. After his death the real estate was sold by virtue of the executions on the junior judgments, the purchaser bidding and paying the full value of the property, with an understanding by all parties con- cerned, that the money so bid and paid should be applied, first, in payment of the elder, and secondly, of the junior judgments, and the money was so applied. It was held that the purchaser might be subrogated to the rights of the elder judgment creditors as against the widow of the debtor, and that she must either contribute to the payment of those judgments, or receive dower in the residue only of the real estate, after deducting from its fair value the amount of such judgments. "Her dower in the lands described," the court said, "is to be limited to the value of those lands, over and above the incum- brances on them at the time of her husband's death, which were placed there before marriage. This is the dower to which, we think, equity entitles her, and to which Whitehead bought subject. This she must take, or contribute ratably, according to the established rules of law to the discharge of those incumbrances." And the estate being insolvent, the court further held that the personal re- presentative of the deceased was not required to redeem any portion of the incumbrances from the personal assets, for the benefit of the widow. 33. Where a sale is made after the death of the husband, and it produces more than the amount required to satisfy the judgment, the widow is entitled to dower in the surplus. 2 i Whitehead v. Cummins, 2 Carter, (Ind.) 58. s See Robbing v. Bobbins, 8 Blackf. 174 ; S'andford v. McLean, 3 Paige, 117. By the Kentucky statute, where lands are sold after marriage to satisfy a lien acquired before marriage, the wife may be endowed of the surplus in all cases where the husband has not disposed of it in his lifetime. Ky. Rev. St. ch. 47, art. 4, (S 6. CH. XXVIII.] ACTS OF HUSBAND PRIOR TO THE MARRIAGE. 575 Leases for life. 34. If the husband, before the marriage, make a lease of his lands for' the life of the lessee, or of some third person, the wife will not be dowable unless the life estate terminate during the cover- ture. 1 If the lease be for the husband's own life, it follows that as it can not end until the coverture itself ceases, no right of dower will arise in any event. 2 i See ch. 11, \ 5; eh. 15, g 1; eh. 17, \\ 1-9. 2 Ch. 17, \% 1-9. CHAPTER XXIX. DOWER AS AFFECTED BY ACTS OF THE HUSBAND DURING THE COVERTURE. \ 1-3. At common law, dower can not be defeated by the husband after it has once attached. 4, 5. Exceptions to this general rule. 6, 7. Instances in which the wife is concluded from avoiding the acts of the husband. 8-15. Wife may avoid collusive recov- ery against the husband. 16, 17. Stat. 3 & 4 Will. IV. ch. 105. 18. Statutory changes in the United States rendering the concurrence of the wife unnecessary to divest dower. 19, 20. The rule in Connecticut. 21, 22. Vermont. 23-26. North Carolina. 27-31. Tennessee. \ 32, 33. The rule in Georgia. 34. Mississippi. 35. New Hampshire. 36-40. Pennsylvania. 41. States in which the common law rule is retained. 42. Execution of contract of sale made prior to the marriage. 43. Husband's release of equity of re- demption of mortgage executed during the coverture. 44. Sale of equity of redemption on execution against the husband. 45. Mechanics' lien. 46-54. Forfeiture by reason of the husband's crime. At common law, dower can not be defeated by the husband after it has once attached. 1. After the right of dower has once attached, it is not in the power of the husband alone to defeat it by any act in the nature of an alienation or charge. 1 It is a right attaching in law, which, although it may possibly never become absolute, (as if the wife die in the lifetime of the husband,) yet, from the moment that the facts of marriage and seizin concur, is so fixed on the land as to become a title paramount to that of any person claiming under the husband by subsequent act. 2 The alienation of the husband, therefore, whether 1 Benson v. Scot, 3 Lev. 385, 386. For the rule upon this subject in the time of Glanville, see ante, ch. 1, \ 23, and note. 2 Co. Litt. 32, a.; Fitzh. N. B. 147, (E.) (5t6) CH. XXIX.J ACTS OF HUSBAND DURING THE COVERTURE. 577 voluntary, as by deed or will ; or involuntary, as by bankruptcy or otherwise, will confer no title on the alienee as against the wife in respect of her dower, but she will be entitled to recover against such alienee, (except as to damages,) in the same manner, as she would have recovered against the heir of the husband, had the latter died seized. 1 2. It is a necessary consequence of this rule that all charges or derivative interests created by the husband, subsequent to the attach- ment of the wife's right, are voidable as to that part of the land which is recovered in dower. As if "tenant in fee simple take a wife, and then make a lease for years and dieth, the wife is en- dowed ; in this case she shall avoid the lease, but after her decease the lease shall be in force again." 2 So if the husband, after mar- riage, acknowledge a statute or recognizance, the wife shall neverthe- less hold her dower discharged from its operation.* And it may be added that, as the heir can be in no better situation than the hus- band, it follows that all charges made by him in the interval between the death of the husband and the assignment of dower, will be void as against the dowress, and in no degree affect her interest. 4 3. As the husband can not defeat his wife's dower by any aliena- tion of the land by himself alone, so neither can he bind her by any modification of the nature of the seizin, nor by any merger or extin- guishment produced by his own act without her concurrence. All such acts on his part will take effect sub modo, and be liable to be avoided as to the estate of the dowress. 5 The following examples, taken from the old books, though of but little practical value at this day, will serve to illustrate this principle. If a person having a seignory marry, and afterwards purchase the tenancy in fee; or if the owner of a rent-charge purchase the land out of which the rent is issuing, the widow shall have her election to be endowed in the one case, either out of the seignory or the tenancy, and in the other, either of the rent or the land. 6 The land might, indeed, be so con- veyed as not to confer a seizin on the husband on which a title of dower could attach, and in that case, there could, of course, be no election ; but it is clear that the widow might demand her dower of i Park, Dow. 237, 238. 2 Shep. Touch. 275 ; Stoughton v. Leigh, 1 Taunt. 410 ; Co. Litt. 46, a. » Jenk. Cent. p. 36. * Bro. Seizin, pi. 18; Co. Litt. 42, a. 5 Co. Litt. 32, a. « Perk. sec. 320. vol. i. 3T 578 THE LAW OF DOWER. [OH. XXIX. the seignory, rent, &c. , notwithstanding its extinguishment as to other purposes. As in the case put by Perkins : " If the grantee of a rent- charge in fee take a wife, and the grantor leases the land out of which the rent is issuing, to a stranger for life, and the grantee of the rent purchases the reversion of the land, and the tenant for life attorns, and the grantee of the rent dies leaving the tenant for life, his [i.e. the grantee's] wife shall be endowed of the rent, but not of the land ; because the freehold and inheritance were not joined in her husband simul et semel during the coverture." 1 So if the owner of a rent- charge, after marriage, release the rent to the terre-tenant, the widow shall, notwithstanding, be endowed of the rent. 2 In this case the remedy of the widow is against the terre-tenant, and not against the heir of the husband, for the heir has nothing for which the writ can be brought, and though the tenant has not the rent, yet he has the land out of which the rent issues, and the tenant of the land pays it. 8 In what cases alienation by the husband alone, will defeat dower at common law. 4. Although, as a general rule, the husband can not, by his indi- vidual act, defeat the dower interest of the wife after it has once attached, yet it sometimes happens, owing to the nature of his estate, that it is exempt for a time from the incident of dower. While in this condition it is in his power to dispose of it at pleasure, and thereby intercept the title of dower. Thus, if the husband have an estate in lands, which, by reason of any precedent or interposed estate of freehold existing in another person,' is not subject to an incipient title of dower, an alienation of that estate will prevent the wife from ever becoming dowable thereof, although the particular estate afterwards determine, or is consolidated in the lifetime of the husband.* In this case, although the husband is seized during the coverture, the estate is not of such a quality, during his seizin, as a title of dower will attach upon ; and it was not until after his aliena- tion that it acquired that quality. 5 In the United States this prin- 1 Perk. sec. 340. 2 Lord Abergavenny's ease, 6 Co. 79, a.; Lillingston's case, 7 Co. 128, 38, b.; Perk. sec. 322. s Jenk. Cent. 1, Ca. 6; Park, Dow. 239, 240. See, also, Perk. sec. 429. 4 The same principle applies to estates held in joint tenancy. See ch. 16, ${S 1-5. 5 Park, Dow. 232; ante, ch. 11, \\ 5, 10; and ch. 15, \\ 1-6. CH. XXIX.] ACTS OF HUSBAND DURING THE COVERTURE. 579 ciple has been applied to trust estates. As where the husband, as cestui que trust, was entitled to a remainder in fee expectant on the life of a third person, and the husband aliened the remainder before the determination of the life estate, it was held that his widow was not entitled to dower. 1 5. Another instance sometimes occurs in practice in which this principle may be applied. A person having a remainder in fee, sub- ject to a previous estate of freehold in another person, or having the immediate freehold and also the inheritance in remainder upon an interposed estate of freehold, marries and becomes bankrupt, and between the act of bankruptcy and the bargain and sale to the assignees, the particular estate of freehold determines, so that the title of dower attaches. The bargain and sale, when made, having, by force of the bankrupt laws, relation to the act of bankruptcy, takes effect as if made at that time, and consequently overreaches the right of dower ; for at the date of the act of bankruptcy the pre- cedent, or interposed estate of freehold, prevented dower from attach- ing, and the subsequent removal of the impediment will not avail the wife. The assignees, therefore, can make title to a purchaser dis- charged from her dower. 2 Instances in which the wife is concluded from avoiding the acts of the husband. 6. There are cases in which, by the rules of the common law, the wife will conclude herself from avoiding charges created by the hus- band after the title of dower has attached. Thus, as she can have no damages unless the husband die seized, if she pray damages upon her recovery in dower, she is regarded as having elected to be en- dowed of the estate of which the husband was in fact seized at the time of his death ; and if, at the time of the charge created, he had a different estate in the land, that charge will be sustained against her ; for of that estate the husband did not die seized ; and if she had elected to take dower of that estate, she could not have prayed damages. As when A. seized of lands in fee, married, and granted a rent-charge, and afterwards made a feoffment in fee, and took back i Shoemaker v. Walker, 2 S. & R. 554 ; ante, ch. 19, \ 26. 2 Parkers. Bleeke, Cro. Car. 568, 569; Benson v. Soot, Carth. 275; 1 Salk. 185; 3 Lev. 385 ; 4 Mod. 251 ; 12 Mod. 49 ; Park, Dow. 235. As to the effect of the execution by the husband of a power of appointment, see ch. 14, \\ 9-12. 580 THE LAW OF DOWER. [CH. XXIX. an estate tail, and died, and the wife recovered dower against the issue in tail by reddition, and making a surmise that her husband died seized, prayed a writ of inquiry to assess damages, which was granted to her; "in this case," remarks Lord Coke, "she holds the land charged with the rent-charge, for by her prayer she accepteth herself dowable of the second estate, for of the first estate whereof she was dowable, her husband died not seized, and so she hath con- cluded herself; wherefore, if the rent-charge be more to her detri- ment than the damages beneficial to her, it is good for her in that case to make no such prayer." 1 7. So, according to the common law, if the widow accept dower of the heir against common right, 2 she may be compelled to hold, subject to the charges of the husband, 3 at least as to so much of the land charged whereof she is endowed against common right. As, "if a man be seized of three manors in fee, and take a wife, and grant a rent-charge issuing out of all the three manors, and die ; and the wife takes one manor by assignment of the heir, for her dower, in allowance of all the three manors : now two parts of this manor remain charged with the distress of the grantee, although the grant of the rent-charge was made during the marriage ; and the reason is, because as to the two parts she has taken her dower against common right ; for according to common right she ought to have the third part of every manor." 4 This doctrine, however, as a general rule, appears to extend only to such assignments as are made without suit, for it is added, " but in the same case, if she had recov- ered her dower, and such assignment had been made to her by the sheriff, she should have holden the same discharged. 5 But if a man be seized of three advowsons of three sev'eral churches, and take a wife, and grant to a stranger that he shall present to the next avoid- ance of such one of the three churches as shall first become void, and the grantor dies, and his wife brings a writ of dower against the heir, before any church becomes void, and recovers; and the sheriff assigns to her the advowson of one church for her dower, in allowance of the other churches ; which advowson assigned to her is the first which becomes void after the grant made by the husband, and the same avoidance happens after the assignment of the dower, it seems to i Co. Litt. 33, a,. 2 See vol. ii. Index, "Assignment against common right." 3 Co. Litt. 32, b., and note 2. * Perk. sec. 330. 5 ibid.; 1 Roper, Husb. and Wife, 393. CH. XXIX.J ACTS OF HUSBAND DURING THE COVERTURE. 581 some in this case, that the wife shall not have this avoidance, but the grantee shall have the same ; because she is endowed against common right ; for of common right she ought to have but the third avoid- ance of each advowson of each church. 1 And although the assign- ment be made by the sheriff, it shall not prejudice or oust the grantee of his right, because he is a stranger to the assignment ; and also he can not otherwise take advantage of his grant, but only at this avoid- ance ; tamen qusere. 2 But otherwise is it in the case of a grant of a rent-charge out of three manors ; for when the assignment is made by the sheriff of one entire manor, in allowance of all the manors, the grantee may distrain for his whole rent in the other two manors, and in every part of them ; and it shall not be more prejudicial to the heir this way than the other way." 3 Collusive recovery against the husband. 8. A recovery by judgment against the husband in a real action, defeats the title of dower of the wife. This proposition must, how- ever, be understood to be confined to recoveries by actual title, and not to extend to feigned or common recoveries. The statute of Westminster 2, chap. 4, recites that by the common law, where a husband being impleaded, had given up the land demanded to his adversary, de piano, namely, by reddition, the justices, upon a writ of dower brought by the wife, would adjudge her her dower. But that where the land was lost by default, there was a difference of opinion ; some justices holding that the widow was, and others that she was not entitled to dower. To remove this doubt it was declared by that statute, that in both cases the woman demanding her dower should be heard ; and if it were alleged against her that her husband lost the land by judgment, so that she ought not to have any dower, and upon inquiry it was found to be a judgment by default, then that the tenant should further show that he had, and hath right in the i Perk. sec. 331. 2 Notwithstanding this gusere, the case cited by Lord Hale, Butl. Co. Litt. 32, b., n. 2, and those in Com. Dig. Pleader, 2 Y., 19, Viner's Abr. Dower, X., Y., Z., and Bacon's Abr. Dower, D. 2, seem to render it clear that the wife would lose the pres- entation, because she is not compellable to take such assignment from the sheriff ; and if she assent to it, she shall be bound by her own act, as where the assignment is made by the heir. — Greening's note, Perk. sec. 332. 3 Perk. sec. 332. As to the effect upon the right of dower of alienation by the husband by force of particular customs, see Park, Dower, 244-6. 582 THE LAW OF DOWER. [CH. XXIX. land according to the writ which he had brought against the hus- band ; and if he proved the husband had no right, nor any one but himself, then that the judgment should be quod tenens recedat quietus, and quod uxor nihil capiet de dote; but if he could not show that, then that the woman should have judgment quod recu- peret dotem suam. 1 9. Perkins remarks that this statute is but a recital of the com- mon law: "For the common law ought to be intended where the husband had right, and he who recovered had no right; and so is the law at this day if the husband lose by default. And so was the common law before the making of that statute; so that that statute is but an affirmance of the common law in this point. 2 And there- fore, at the common law, before the making of that statute, if a man seized of land in fee by a rightful title, had taken a wife, and been disseized, and re-entered upon his disseizor, who had arraigned an assize against him, and he had confessed the disseizin, and the dis- seizor had released the damages, and had had judgment to recover, and had entered, and the husband had died, his wife should, by the common law, have recovered her dower against him who recovered in the assize ; because her husband had right, and he who recovered no right. 3 And if a disseizor of land take a wife, and the disseizee releases all his right to the disseizor, and notwithstanding that, brings a writ of entry in the nature of an assize against the dis- seizor, and recovers by default, and the disseizor dies, his wife may recover her dower against the disseizee, notwithstanding this re- covery by default; because at that time her husband had the right by the release, and the disseizee had no right. 4 But if he who re- covereth by reddition or by default, had right, then it shall be other- wise. And therefore, if the heir of a disseizor of land be in by descent, and the disseizee enters upon him, and takes a wife, and the heir of the disseizor recovers against the disseizee by reddition, or by default in a writ of entry in the nature of an assize, and the husband dies, in this case, his wife shall not recover her dower by writ; because he that recovered had a right to the possession, ac- cording to the nature of his action; and the husband was not seized of any other possession during the coverture, but of that possession which is destroyed and defeated by the recovery. 6 But if a man i Park, Dow. 145 ; 2 Inst. 347 et seq. 2 Perk. sec. 376. 3 Perk. sec. 377. * Ibid. sec. 378. 5 Perk. sec. 379. See 2 Inst. 350. CH. XXIX.] ACTS OF HUSBAND DURING THE COVERTURE. 583 seized of land in fee, take a wife, and be disseized, and the disseizor dies seized, and his heir is in by descent, upon -whom the disseizee enters, and the heir of the disseizor recovers against him by reddi- tion, or by default in a writ of entry in the nature of an assize, and the husband dies, his wife shall recover her dower, although he who recovered had a right to the possession, according to the nature of his action. And the reason is because the husband had an elder (or previous) seizin during the coverture, before the writ brought in which the recovery was; by force of which seizin the wife had title to have dower; and the elder seizin is not defeated and destroyed by the recovery." 1 10. It will be seen from the last two of these cases, that under the complicated modifications of seizin contemplated by the old black- letter law, it sometimes happened tbat the seizin of the husband which he had during the coverture would be defeated, and so the wife's title of dower avoided, though the right remained in him; and at other times, that the dower would be preserved, although the seizin was defeated in like manner, by reason that some distinct seizin had attached in the husband at a previous time during the coverture, and" which the nature of the action by which his subse- quent seizin was defeated, did not reach. It is to be observed, that in the case put by Perkins in section 379, the husband is disseized before marriage, and in the following sectifti not till after marriage. Now, as the right of entry upon the disseizor was taken away by tbe descent cast, and as a man can not be remitted to his own tortious entry, when the husband enters upon the heir he acquires a wrong- ful seizin, 2 distinct in the one case from his right, and in the other from his ancient seizin, and therefore defeasible by re-entry, or recovery in a possessory action. In the former case, the strict rule of the common law will not permit the wife to be endowed because the only seizin which the husband had during the coverture is avoided by superior title; and of the right of action she is not dowable. 3 In the latter case, the ancient rightful seizin of the hus- band being untouched by the recovery in the possessory action, sup- ports her right to be endowed against the recoveror.* 11. It appears, also, according to the technical rule of the com- mon law, that although the husband had no right to the lands, yet 1 Perk. sec. 380. 2 See ante, ch. 17, \\ 20, 21. 3 See ante, oh. 12, \ 12. * Park, Dow. 148, 149. 584 THE LAW OP DOWER. [OH. XXIX. if a degree were past, so that he acquired a jus possessions, and the action brought against him was only a possessory action, or in other respects was not such as the land could be recovered upon, unless by laches of pleading in the husband, the wife may falsify this recovery. 1 12. The following illustration of this principle is taken from Per- kins: "If a disseizor of land die seized thereof, and his heir enters and takes a wife, and the disseizee recovers the land against the husband by default, in a writ of entry ad terminum qui prseteritt, and the husband dies, his wife shall falsify this recovery in a writ of dower." 2 And the reason is that this writ properly lies only after the determination of a particular estate for life or years, and the lease alleged in the count is traversable. 3 So that the wife may fal- sify, not only where the recoveror had no right to the land, but where, though he had right to it, he could not lawfully recover by the par- ticular action in which he obtained judgment. ^And generally, for false pleading in the husband, where he might have pleaded in bar to the action, and not merely in abatement, the wife may falsify. Thus, according to Perkins : "If in a writ of entry en le post against the husband, he vouch himself to save the tail, and show for his cause that his father gave the land to him in tail, and that the reversion is descended to him from his father, and the demandant traverses the gift whichj,is found with him, by reason whereof he recovers, and the husband dies, now, if the husband had a release of all actions, or of all the right of the demandant to plead, and did not plead it, his wife shall falsify this recovery in a writ of dower. 4 And if tenant in tail of land hath issue, and dies, and a stranger abates and dies seized, and his heir is in by descent, who takes a wife, and the issue in tail brings an assize of mort d 'ancestor against the husband, who traverses the points of the writ which are found with the demandant, by force of which he recovers and enters, and the husband dies; in this case it hath been said that the wife shall not recover dower of this land, before this verdict be attainted by the heir in a writ of attaint. Yet it seems she shall falsify this recovery in a writ of dower immediately after the death of her hus- band ; inasmuch as he might have pleaded to the action of the writ i Park, Dow. 149. 2 Perk. sec. 384. s Fitzh. N. B. 201, 202 ; Greening's note, Perk. sec. 384. i Perk. sec. 382. CH. XXIX.] ACTS OF HUSBAND DURING THE COVERTURE. 585 of the demandant, and she can not have an attaint. And if she shall stay until the heir hath defeated the verdict by attaint, then, per- haps, the heir will release, or perhaps will not sue an attaint; and so the wife in despite of her, shall lose her dower; which is not reasonable, when she was once entitled to have dower by the pos- session of her husband during the coverture, which possession has never been avoided, except by the laches of the pleading of her husband, because he might have pleaded to the action of the writ of the demandant. Tamen quaere : l because the judgment, is given upon the verdict ; within which verdict is found matter contrary and repugnant to the matter which ought to be pleaded to the action of the writ; but if the entry of the demandant had been lawful, then the law is .clear, and without question, that the wife shall not falsify ; for then the demandant has been remitted by his entry." 2 13. But Perkins adds the following upon this point: "And it is to be known, that the demandant in a writ of dower shall not falsify a recovery against her husband by default, for laches of her hus- band in not pleading a plea which goes merely in abatement of the writ, except in special cases. And therefore, to say that her hus- band might have pleaded misnomer, &c, or joint tenancy, &c, are not causes to falsify a recovery. 3 But if she shew matter proving that the demandant had not right, or cause of action, except jointly with a stranger, who, by his deed of release which she shews forth, released all his right to her husband, (then tenant of the land,) 1 This section may be considered to require some explanation. By the descent to the heir of the abator, the entry of the issue in tail was tolled, and he was put to his action by formedon in the descender; for he could not sue a writ of mort cP 'ancestor, that being applicable only to the case of an heir in fee simple ; bo that the tenant might have pleaded in bar to this writ and avoided it. But the finding upon the traverse in the case put must have been, that upon the day of his death the father of the issue in tail was seized in fee ; and Perkins seems to have thought that this find- ing estopped the widow from alleging the truth. The precise point of the gusere could not be answered without a more intimate acquaintance with the minutise of the forms of proceedings in real actions, than is possessed by modern lawyers generally. Now that all lands are devisable, a mort d' 'ancestor can not be brought, and as it is, therefore, impossible for the point to arise, it has not been thought worth while to make an unprofitable search for the solution. — Greening's note, Perk. sec. 383. These sections from Perkins, although containing much antiquated law, are repro- duced here, as strongly illustrative of the principle, fully recognized in American courts, that in respect to her right of dower, the wife shall not be prejudiced by the laches, default, or collusion of the husband. See post, \ 15 ; 4 Kent, 48. 2 Perk. sec. 383. » Ibid. sec. 385. 586 THE LAW OF DOWER. [CH. XXIX. before the action brought by the demandant, this is good matter to falsify the recovery for one moiety of the land recovered. So shall it be of all such like cases." 1 "And if in a precipe brought against the husband, he plead misnomer, which is found against him, by force of which the demandant recovers, such recovery shall not oust the wife of her dower, except the demandant had right. And if, in a precipe against the husband, he pleads joint tenancy, which is found against him, by which the demandant recovers, this recovery shall not oust the wife of her dower unless the demandant had right." 2 14. It appears from the last passage, that the wife may falsify recoveries by actions tried, as well as recoveries by reddition and default. This, however, must be understood with the qualification that the falsification is in another point than that which was tried. Thus, where the husband pleads dilatory pleas, as in the cases put by Perkins, the wife may falsify, for this recovery does not disaffirm the possession of the husband. 3 It is proper to remark that in all such cases of falsification of recoveries suffered by husbands, by their widows, the widow shall falsify the recovery as to her title of dower only, and no longer or further. 4 15. The statute of Westminster 2d, chapter 4, was adopted in Virginia in 1785 ; 5 in New York in 1787 ; 6 in Kentucky in 1796 ; 7 and in New Jersey in 1799, 8 and is still in force in those States. It has also been substantially re-enacted in Ohio, 9 Georgia, 10 Arkansas, 11 Missouri, 12 and Kansas. 13 And it may be added in general terms, that the rule of the common law, protecting the wife from the effects of collusive recoveries against the husband, and from the consequences i Perk. sec. 386. 2 Ibid. see. 381. 3 See Bro. Dow. pi. 24, 26 ; Bro. Restore, &c. pi. 1. 4 Shep. Touch. 49; Park, Dow. 152. R 12 Hen. Stat, at Large, p. 163, \ 3 ; 1 Rev. Code, 1819, oh. 107, \ 5 ; Code 1849, p. 476, \ 13. « Act of Jan. 26, 1787, 1 Laws N. Y. (1813,) p. 56, eh. 4, \ 4; 1 N. Y. Rev. Stat. 742, I 16 ; 3 N. Y. Rev. Stat. (5th ed.) p. 33, \ 16. » 1 Litt. 516; 1 Stat. Ky. (1822,) p. 444, % 3; Rev. Stat. Ky. (1852,) p. 394, g 11; Stanton's Rev. vol. ii. p. 27, \ 11. 8 Laws of N. J. by Paterson, p. 343, \ 5 ; Nixon's Dig. p. 209, \ 5. 8 2 Chase's Stat. 1315,