Mon.185 Sometimes, as in case of a mine, mill, or ferry, the only practical method of assigning dower is to give alternate enjoyment 186 or to divide the profits.187 When a division is impossible, or would cause considerable loss, the land subject to dower is sold.188 When there has been a sale, or when there is a sum of money in court subject to dower, there are two ways of making the assignment. In some jurisdictions one-third is invested and the proceeds paid to the widow during her life.189 In others, she is given a gross sum at once, equal to the present worth of an annuity for the probable duration of her life.190
Dower can be voluntarily assigned only by the tenant of the freehold,191 and any one may assign dower who could be compelled to by suit.192 So an assignment by an infant193 or a guardian is
185 Parrish v. Parrish, 88 Va. 529, 14 S. E. 325,
186 Smith's Heirs v. Smith, 5 Dana (Ky.) 179; Stevens' Heirs v. Stevens, 3 Dana (Ky.) 371.
187 Chase's Case, 1 Bland (Md.) 206; 1 Stim. Am. St Law, § 3276; 1 Share. & B. Lead. Cas. Real Prop. 396. And see Heisen v. Heisen, 145 111. 658, 34 N. E. 597.
188 See 1 Stim. Am. St Law, § 3276.
189 Higbie v. Westlake, 14 N. Y. 281; Tabele v. Tabele, 1 Johns. Ch. (N. Y.) 45; Bonner v. Peterson, 44 111. 253.
190 Williams' Case, 3 Bland (Md.) 186, 221; Eagle v. Emmet 4 Bradf. Sur. (N. Y.) 117; Sherard v. Sherard's Adm'r, 33 Ala. 488. For the calculation of this (and the use of life tables), see 2 Scrib. Dower (2d Ed.) 678; Brown v. Bronson, 35 Mich. 415; 70 Ga. Append, pp. 843-848; Stein v. Stein, So Md. 306, 30 Atl. 703; and ante, p. 60.
191 Hill's Adm'rs v. Mitchell, 5 Ark. 608; Drost v. Hall, 52 N. J. Eq. 68, 28 Atl 81; Id. (N. J. Ch.) 29 Atl. 437 (a chattel interest gives no power to assign). But see 2 Scrib. Dower (2d Ed.) 76.
192 Robinson v. Miller, 1 B. Mon. (Ky.) 88; Lenfers v. Henke, 73 111. 405; Meserve v. Meserve, 19 N. H. 240; Richardson v. Harms, 11 Misc. Rep. 254, 32 N. Y. Supp. 808. And see, as to parties to suit, Kenyon v. Kenyon (R. I.) 23 Atl 101; Parton v. Allison, 111 N. C. 429, 16 S. E. 415; Coburn v. Herring-ton, 114 111. 104, 29 N. E. 478.
193 2 Scrib. Dower (2d Ed.) 78; Curtis v. Hobart, 41 Me. 230.
Good.194 Where a minor heir has made an excessive assignment, he may have a redistribution on reaching his majority.195 In a Dumber of states dower may be assigned by the probate court in which the husband's estate is being settled.196
57. Recovery By Action-the procedure for the recovery of dower wrongfully detained varies greatly in the several states. In most states no demand is necessary before bringing suit.
Proceedings to Recover Dower.
If dower is not assigned by the one whose duty it is to do so, the widow can resort to the courts to compel assignment.197 The procedure varies in the several states. It may be (1) by a proceeding at common law,198 (2) in equity,199 (3) by ejectment,200 or (4) by a summary proceeding provided by statute.201 It is not generally necessary to make a demand before bringing suit for dower,202 except as to damages; but, in jurisdictions where it is
194 Jones v. Brewer, 1 Pick. (Mass.) 314; Boyers v. Newbanks, 2 Ind. 388. But see Bonner v. Peterson, 44 111. 2(50. For assignment by a joint tenant, see
2 Scrib. Dower (2d Ed.) 79.
195 Mccormick v. Taylor, 2 Ind. 336.
196 1 Stim. Am. St. Law, § 3272.
197 The action must be brought where the land is situated. Lamar v. Scott,
3 Strob. (S. C.) 562. The rule is not uniform as to when the action may be commenced. See 1 Stim. Am. St. Law, § 3271; 2 Scrib. Dower (2d Ed.) 109.
198 See Ship. Com. Law Pl (2d Ed.) p. 6; 2 Scrib. Dower (2d Ed.) 91; Williams, Ileal Prop. (17th Am. Ed.) p. 380, note. And see Hurd v. Grant, 3 Wend. (N. Y.) 340; Miller v. Beverly, 1 Hen. & M. (Va.) 368.
199 2 Scrib. Dower (2d Ed.) 145. The equitable remedy is sometimes exclusive. Mcmahan v. Kimball, 3 Blackf. (Ind.) 1; Chiswell v. Morris, 14 N. J. Eq. 101; Davis v. Davis, 5 Mo. 183; Smart v. Waterhouse, 10 Yerg. (Tenn.) 94.
200 2 Scrib. Dower (2d Ed.) 119; 1 Washb. Real Prop. (5th Ed.) 286; Ellicott v. Mosier, 11 Barb. (N. Y.) 574. But not in some states before assignment. 2 Scrib. Dower (2d Ed.) 115.
201 l Stim. Am. St. Law, § 3274; 2 Scrib. Dower (2d Ed.) 175.
202 Scrib. Dower, c. 6, § 1; Jackson v. Churchill, 7 Cow. (N. Y.) 287; Hopper T. Hopper, 22 N. J. Law, 715.
Required,203 it must be of the tenant of the freehold,204 and should contain a general description of the premises out of which dower is demanded.205
58. A dowress has, in the land assigned as her dower, the usual rights of a tenant for life.
59. On the death of the dowress, the owner of the land is entitled to possession at once.
When dower has been assigned, i. e. set apart to her, the widow has, in such realty, an estate subject to the usual incidents of life estates.206 She may sell or lease the whole or any part of it.207 She has not only the usual right to emblements,208 but she has also the crops sown on the dower land by her husband,209 or by the heir before assignment.210 The dowress may take reasonable estovers,211 and, when the land assigned consists of several parcels,, she may take wood from one parcel for use on another.212 The duty to repair is doubtful where not provided for by statute, as is the case in several states.213 The tenant in dower must not commit waste,214 and she must keep down the interest on incumbran203 2 Scrib. Dower (2d Ed.) 109.
204 Id. 110. Cf. Young v. Tarbell, 37 Me. 509.
205 Haynes v. Powers, 22 N. H. 590; Davis v. Walker, 42 N. H. 4S2; Ford v. Erskine, 45 Me. 484; Atwood v. Atwood, 22 Pick. (Mass.) 283. And see Falls v. Wright, 55 Ark. 562, 18 S. W. 1044.