Story Case

Arthur Merriam, during the first ten years of his married life, acquired several lots of valuable real estate, but unfortunate investments forced him into bankruptcy. The trustee, Mr. Harris, who took charge of the assets for the creditors of Mr. Merriam, sold the real estate and distributed the proceeds pro rata among the creditors. This is a suit by Mrs. Merriam against Harris to recover for the loss of her dower interest in the real estate of her husband. Can she recover!

Ruling Court Case. Hilton Vs. Stewart, Volume 31 Utah, Page 255; Volume 87 Pacific Reporter, Page 900

In this case it appears that Annie Hilton married John Parks in 1872, and continued to be his wife down to the time of his death, which occurred in 1900. During his life he purchased several parcels of real estate at various times. Before his death, he conveyed away most of the land in question for something over $30,-000, but his wife, Annie, did at no time join in such conveyances. Stewart was named executor of Parks' estate in the will of the deceased. Annie Hilton now sues him for $10,733, which she claims as her one-third share of her husband's estate.

She relies upon a statute which provides that " one-third in value of all the legal or equitable estate in real property possessed by the husband at any time during the marriage, and to which the wife had made no relinquishment of her rights, shall be set apart as her property, in fee simple if she survives him."

Mr. Justice Frick said: "We feel constrained to hold that the wife, if she desires to recover her interest in her husband's lands, alienated by him during marriage without her consent, must resort to the lands themselves, and that she can recover such interest only as the law gave her at the time the lands were alienated by the husband. In all lands possessed by him at the time of his death, she takes her interest in accordance with that law. It must not be overlooked that the contingent interest of the wife in her husband's lands is in the nature of an encumbrance which may or may not become absolute and enforcible right dependent upon the one fact that she survive her husband. This encumbrance is against the land, and exists against each specific parcel while the right remains in existence during her life." Judgment was given for Stewart.

Ruling Law. Story Case Answer

Dower is the interest which a wife receives in the freehold property owned by her husband during the continuance of the marriage relation. At Common Law she was entitled, by right of dower, to a life estate in one-third of the real estate owned by the husband during coverture, or during marriage. At the very instant that she married she had a right in the land; this was called inchoate dower. Not until the husband died was she able to enjoy fully this dower right. But during his life she has an interest in the land which the husband cannot by any act of his own deprive her of. This right is a right against the land, and not against the husband; and in case the husband sells his property, and she does not join in the conveyance, she has no claim against the husband for the amount to which she is entitled, but she must proceed against the and, into whosoever hands it has passed.

In the Story Case, Mrs. Merriam will recover her dower right from the holder of the lands even if she fails to recover from Mr. Harris. All of Mr.

Merriam's assets must be sold to pay his debts, but this dower right was not his; it belonged' to his wife, and could be sold only with her consent.