Story Case

After the death of Mr. Hiram Thomas his executors were forced to dispose of most of his estate in order to pay the debts of Hiram, who had always lived beyond his income. In the sale, Mr. Otto Meyer became the owner of the estate upon which the Thomas family had lived. Mrs. Thomas, who had not been consulted about the sale, sought Mr. Meyer some time after her husband's death and asked him to pay her the value of her dower right in the property. Mr. Meyer told her that she was not entitled to any dower interest in this estate, because Mr. Thomas, before his marriage, had mortgaged this estate to him (Mr. Meyer) and had never, before his death, paid off the mortgage. Mr. Meyer showed the widow the papers and there was no doubt that he spoke the truth. But Mrs. Thomas thought she ought to have some right in the estate even though the husband had always had a mortgage upon it. Is she right?

Ruling Court Case. Holbrooh Vs. Finney, Volume 4 Massachusetts Reports, Page 243

John Finney was the owner of land, which he conveyed to his four sons, of whom Ezra was one. The four sons at the time, and as a part of the same transaction, executed to their father a mortgage to secure the payment of the purchase price, and a maintenance for him during his life. The plaintiff herein, Mrs.

Holbrook, was the wife of one son at the time, and did not join in the mortgage to John Finney. In this action, she now seeks to have established her dower right in the land in question.

It was contended by Finney that she never received a dower right in the land, because her husband was never legal owner of the land.

Mr. Chief Justice Parsons said: "At Common Law a wife was entitled to a dower interest only in real property, of which her husband was seized in fee during marriage. By seizing is meant land of which he was legal owner in fee. However, the husband must have been owner for some period of time in order that the wife may claim dower interest. In this case, the husband became legal owner by the conveyance from his father, but at the same time he gave a mortgage back to his father, thus returning the legal ownership. Under such circumstances, the wife gets no dower interest." Judgment was given for Finney.

Ruling Law. Story Case Answer

We have seen that the wife gets a dower interest in the land owned by her husband at any time during the marriage relation. It must be noted, however, that at Common Law the wife did not get any dower in any property except legal freehold estates held by the husband. She acquired no dower in equitable estates owned by him. Thus, if the husband owns mortgaged property at the time of the marriage, the wife gets no dower in such property, because the legal title is outstanding in the name of the mortgage, and the husband has only an equity in the property, a right to pay off the mortgage and get back the legal title. Furthermore, if the husband buys property during the marriage and gives back at the same time a mortgage to secure the price, the wife gets no dower, because the purchase and the mortgage are considered as one transaction, and he is not regarded as having been the legal owner of the property. In any case, however, when the mortgage debt has been paid by the husband, the wife then gets a dower interest in such property.

In the Story Case, Mr. Thomas had never been, throughout his married life, more than an equitable owner of the estate, having mortgaged it to Mr. Meyer. He had a right to pay off the mortgage debt and become owner, but never having done so the fee simple was in Meyer, and not in Thomas. The wife is wrong. She can get no dower interest in property which the husband does not legally own.