This section is from the book "American Commercial Law Series ", by Alfred W. Bays. Also available from Amazon: American commercial law series.
Dower is a life estate which a widow has in one-third of the lands of which the husband was seized during coverture.
The estate of dower is often misunderstood. Many persons think it to be a portion of the husband's lands which the wife inherits at his death. But this is a misapprehension. Dower is that estate which the wife has in those lands of which the husband was seized during coverture, and that estate is defined by the law to be a life estate in one-third of all such lands. There is no estate of dower unless the wife outlives the husband and if she does outlive him the value of her estate depends on her age at his death. If the husband dies leaving a wife of eighty years of age, the likelihood is that the wife will not long survive and her dower estate is consequently of small value. A dower estate may be perhaps better understood if we liken it to an estate for one year. When the year passes, the estate is gone and the fee is clear thereof. An estate in dower differs from an estate inherited, because the inheritance goes to one absolutely to descend to one's heirs or be disposed of as one chooses. But an estate by dower cannot go to one's heirs because it ceases with one's life; it cannot be willed for the same reason; it cannot be sold except as one may dispose of any life estate. In some states a wife inherits real estate under certain conditions (as where there are no children) and in that case the estate so inherited goes to the wife in fee, as her absolute property, to be disposed of as she sees fit, and to descend to her heirs at her death. Thus in Illinois, if a man dies without children, the wife inherits one-half his real estate; in the other half she has dower. The one-half she may convey in fee by deed; it goes to her heirs upon her death; her estate is worth what the property is worth; though she is ninety years of age she may sell the property at its market value; but her dower is in that case well nigh worthless, for it expires with her.
Dower is of one-third the husband's lands. It really amounts to this: that she is entitled to one-third the rents and profits of all his lands during her life; or all the rents and profits of one-third his lands.
Dower is a one-third interest in all the lands of which the husband was seized during coverture, that is, all the lands owned by him in fee, to which he had title, or to which he was entitled to possession during marriage. It is, therefore, the practice for a wife to release her dower in land sold by the husband, so that it passes free of this burden, that is, the possibility of her having an estate in it by surviving her husband.
Dower arises as a legal result. Therefore the wife has dower though not named in a deed to her husband. Naming her as a joint grantee would not give her dower but joint or common ownership. Therefore, she would not be named, unless she is to be indeed a co-owner.
Before the husband's death, the wife is said to have inchoate dower, that is, possible dower, in case she outlives her husband.
The essentials of dower are: marriage; seisin by husband; death of husband; survival of wife.60
60. Id., Book II, 129.
Dower is waived by proper execution and acknowledgment according to local statutes and is barred by divorce of the wife for her fault.
The wife may release her inchoate dower in her husband's lands by joining with him in a sale thereof, and following the provisions of the statute in that regard. In some states she simply joins in the deed and the acknowledgment thereof; in some she must be taken from the presence of the husband and there questioned whether it is her free act and deed. This matter is purely statutory and the state statutes must be consulted.
The laws usually provide also that if the husband divorces the wife (she being in fault), she shall thereby lose her dower.
After the husband's death the wife is entitled to have her dower set off to her, or valued and its value paid her.
The wife, after her husband's death, may have assignment of dower. She may have one-third of the land set off to her, or the value of the dower paid her. There are tables of expectancy of life, by which the value of her dower is measured.
Curtesy is the estate which the husband has for life after his wife's death in all the lands whereof the wife was seized during coverture, provided a child was born by the marriage.
Curtesy was the life estate of a surviving husband in his wife's lands. These were the elements thereof: (1)
Marriage, (2) Birth of child (not necessary to dower) ; (3) Seisin of lands by the wife; (4) Death of wife; (5) Survival of husband.61
Curtesy, like dower, is merely a life estate. By some statutes, curtesy is abolished, and a husband given an estate corresponding to that of the wife.
61. Id., Book II, p. 127.