49. Dower is the provision which the law makes for a widow out of the lands or tenements of the husband for her support. In most states it is a life estate in one-third of the husband's realty. The requisites of dower are:
(b) Seisin of the husband during coverture.
(c) Death of the husband before the wife.
Dower 80 is a legal life estate, and therefore a freehold. At common law it was one-third of all the realty of which the husband was seised at any time during coverture, but this amount has been changed to one-half in several of the states by statute.81 The rights of a widow in her deceased husband's real property are in all cases governed by the law of the place where the land is situated. Thus, dower may have been abolished in the state of the residence of the husband and wife, and yet the widow would have dower in lands owned by him in a state where dower still existed.82
78 Ante, p. 73.
79Hltz v. Bank, 111 U. S. 722, 4 Sup. Ct 613; Breeding v. Davis, 77 Va. 639; Evans v. Lobdale, 6 Houst (Del) 212; Porch v. Fries, 18 N. J. Eq. 204; Thurber v. Townsend, 22 N. Y. 517; Walker v. Long, 109 N. C. 510, 14 S. E. 299; Beach v. Miller, 51 III 206; Mcneer v. Mcneer, 142 111. 38S, 32 N. E. 681; Jackson v. Jackson, 144 III 274, 33 N. E. 51
80 For the distinction between dower and dowry, see 2 Bl Comm. 120; Black, Law Dict. "Dower," "Dowry." For the history and origin of dower, see Digby, Hist Real Prop. (4th Ed.) p. 126; 2 Bl Comm 129; 1 Washb. Real Prop. 147.
81 1 Stim. Am St Law, §§ 3105, 3202 F. And see Pearson v. Pearson, 135 Ind. 377, 35 N. E. 288; Zachry v. Lockard, 98 Ala, 371, 13 South. 514; Wads-worth v. Miller, 103 Ala. 130, 15 South. 520.
82 Lamar v. Scott 3 Strob. (S. C.) 562; Barnes v. Cunningham, 9 Rich. Eq. (S. C.) 475; Duncan v. Dick, Walk. (Miss.) 281; Jones v. Gerock. 6 Jones, Eq. (N. C.) 190.
84 Estates As To Quantity-legal Life Estates. (Ch. 6
As in curtesy, there must be a lawful marriage in order to give dower.83 No dower can be claimed if the marriage was void. But if merely voidable, and not avoided during coverture, the widow may have dower.84 A marriage per verba de praesenti or per verba de futuro cum copula will give dower.85 By marriage the right to dower attaches,86 but remains inchoate until the death of the husband.87 Seisin of Husband-transitory Seisin.
It is also required, to give the widow dower, that the husband be seised of the estate during coverture.88 But a seisin in law is sufficient.89 A mere right of entry, however, will not give dower at common law,90 though this has been changed by the statutes of several states.91
83 Jones v. Jones, 28 Ark. 19; Moore v. Mayor, etc., 8 N. Y. 110; Besson v. Cribble, 39 N. J. Eq. 1ll; De France v. Johnson, 26 Fed. 891.
84 Higgins v. Breen, 9 Mo. 497; Jenkins v. Jenkins' Heirs, 2 Dana (Ky.) 102; Donnelly v. Donnelly's Heirs, 8 B. Mon. (Ky.) 113; Smith v. Smith, 5 Ohio St 32; Smart v. Whaley, 6 Smedes & M. (Miss.) 308.
85 1 Scrib. Dower (2d Ed.) 71; Pearson v. Howey, 11 N. J. Law, 12; Fenton v. Reed, 4 Johns. (N. Y.) 52; Adams v. Adams, 57 Miss. 267. But the validity of such marriages is denied in some states. 1 Scrib. Dower (2d Ed.) 71, 99.
86 Buzick v. Buzick, 44 Iowa, 259.
87 Inchoate dower is not an estate in land, but only an interest. Blodget v. Brent, 3 Cranch, C. C. 394, Fed. Cas. No. 1,553; Moore v. Mayor, etc, 8 N. Y. 110; Howlett v. Dilts, 4 Ind. App. 23, 30 N. E. 313; Mcarthur v. Franklin, 16 Ohio St 193; Gunnison v. Twitchel, 38 N. H. 62. And as holding that it is not even an interest, see 1 Washb. Real Prop. (5th Ed.) 312.
88 Ameotts v. Catherich, Cro. Jac 615; Price v. Hobbs, 47 Md. 359; Houston v. Smith, 88 N. C. 312; Butler v. Cheatham, 8 Bush (Ky.) 594; Poor v. Horton, 15 Barb. (N. Y.) 485; Grant v. Sutton (Va.) 22 S. E. 490; Kade v. Lauber, 48 How. Prac (N. Y.) 382; Crabb v. Pratt 15 Ala. 843; Blood v. Blood, 23 Pick. (Mass.) 80; Miller v. Wilson, 15 Ohio, 108; Rands v. Kendall, Id. 671; Grey v. Mecune, 23 Pa. St. 447. In a few states she takes dower only in estates of which he died seised. 1 Stim. Am. St Law, § 3202 E; 1 Washb. Real Prop. (5th Ed.) 196; 1 Williams, Real Prop. (17th Am. Ed.) note 377.
89 Atwood v. Atwood, 22 Pick. (Mass.) 283; Apple v. Apple, 1 Head (Tenn.) 348; Mclntyre v. Costello, 47 Hun (N. Y.) 289.
90 1 Scrib. Dower (2d Ed.) 255. Nor was the recovery of a judgment for the lands sufficient if no entry was made or execution served. Id. 257.
91 1 Stim. Am. St Law, § 3211; 1 Scrib. Dower (2d Ed.) 258.
Although the rule is that the husband's seisin need be only for an instant of time,92 still if he is a mere conduit for passing the seisin to another,93 or if he acquires and parts with the seisin again by the same transaction, then no right of dower arises. This is the case when the husband buys land and gives a mortgage back for the purchase money. The wife in such case is entitled to dower in the equity of redemption alone.94
Death of the Husband-dower Consummate.
The other requisites of dower being present, the right becomes consummate by the death of the husband. Until that occurs, the wife has only a contingent interest. This interest becomes vested if the husband dies before the wife.95
92 Broughton v. Randall, Cro. Eliz. 503; Stanwood v. Dunning, 14 Me. 290; Mccauley v. Grimes, 2 Gill & J. (Md.) 318; Sutherland v. Sutherland, 69 111. 481; Stanwood v. Dunning, 14 Me. 290; Smith v. Mccarty, 119 Mass. 519; Douglass v. Dickson, 11 Rich. Law (S. C.) 417. Such seisin is good as against strangers, though it be tortious. Randolph v. Doss, 3 How. (Miss.) 205; Ed-mondson v. Welsh, 27 Ala. 578.
93 Fontaine v. Sayings Inst., 57 Mo. 552.
94 Mayburry v. Brien, 15 Pet 21; King v. Stetson, 11 Allen (Mass.) 407; Holbrook v. Finney, 4 Mass. 566; Stow v. Tifft, 15 Johns. (N. Y.) 458; Coates v. Cheever, 1 Cow. (N. Y.) 460; Wheatley's Heirs v. Calhoun, 12 Leigh (Va.) 264; Seekright v. Moore, 4 Leigh (Va.) 30; Ragsdale v. O'day, 1 Mo. App-rep'r, 363; Griggs v. Smith, 12 N. J. Law, 22; Crafts v. Crafts, 2 Mccord (S. C.) 54; Ratcliffe v. Mason, 92 Ky. 190, 17 S. W. 438; Moore v. Esty, 5N.E 489. But see Meclure v. Harris, 12 B. Mon (Ky.) 261; Rawlings v. Lowndes, 34 Md. 639; Butler v. Thornburg, 131 Ind. 237, 30 N. E. 1073; Jefferies v. Fort, 43 S. C. 48, 20 S. E. 755. The mortgage may be to a third person. Glenn v. Clark, 53 Md. 580; Johnson v. Plume, 77 Ind. 166; Kittle v. Van Dyck, 1 Sandf. Ch. 76; Roush v. Miller, 39 W. Va, 638, 20 S. E. 663. And the mortgage may even be on another parcel of land which is acquired as a part of the same transaction. Adams v. Hill, 29 N. H. 202.
95 Sutliff v. Forgey, 1 Cow. (N. Y.) 89; Truett v. Funderburk, 93 Ga. 686, 20 S. E. 260. There must be natural death; civil death will not give dower. Wooldridge v. Lucas, 7 B. Mon. (Ky.) 49; Plainer v. Sherwood, 6 Johns. Ch. (N. Y.) 129. In a few states divorce makes the right to dower consummate. 1 Stim. Am. St Law, § 6251 A (1). So an assignment for creditors. Wright v. Gelvin, 85 Ind. 128. And in two states judicial sale of the husband's lands. 1 Stim Am. St. Law, § 3204. And see Kelley v. Canary, 129 Ind. 460, 29 N. E. 11; Whitney v. Marshall, 138 Ind. 472, 37 N. E. 964; Huffmaster v. Ogden, 135 Ind. 661 35 N. E. 512. Contra, Gatewood v. Tomlinson, 113 N. C. 312, 18 S. E. 318.
50. A widow has dower at common law in the husband's estates of inheritance, provided the following conditions concur:
(a) In many states the land must be capable of beneficial enjoyment as a life estate (p. 87).
(b) The estate must be one which issue of the wife could inherit (p. 88).
(c) The estate must not be terminated by the happening of a contingency (p. 88).
(e) The husband must be seised in possession, not in expectancy (p. 91).
(f) The estate must not be one in joint tenancy (p. 92).
Since dower is a continuation of the husband's estate, it is necessary that he have an estate of inheritance; that is, a fee simple or a fee tail.96 There will be dower in a fee tail,97 even though the estate be at an end, by failure of heirs, at the husband's death.98 There is no dower, however, where an estate tail is by statute changed into a life estate and a remainder.99 Nor is a widow dowable of her husband's life estates,100 except where an estate per autre vie is made an estate of inheritance.101 Where a long term of years is given the character of a fee simple, there is a right to dower,102 but in no other case can there be dower in an estate for years.103
96 Johnson v. Jacob, 11 Bush (Ky.) 646; Chew v. Chew, 1 Md. 163.
97 But not in Kentucky. Gen. St 1883, p. 527, c 50, art 4, § 2.
98 Smith's Appeal, 23 Pa. St 9; Moody v. Bang, 2 Bing. 447; Northcut v. Whipp, 12 B. Mon. (Ky.) 65.
99 Trumbull v. Trumbull, 149 Mass. 200, 21 N. E. 366. And see Edwards v. Bibb, 54 Ala. 475.
100 Gillis v. Brown, 5 Cow. (N. Y.) 388 (per autre vie); Knickerbacker v. Seymour, 46 Barb. (N. Y.) 198; In re Watson's Estate, 139 Pa. St 461, 22 Atl. 638; Thompson v. Vance, 1 Metc. (Ky.) 669; Edwards v. Bibb, 54 Ala. 475; Alexander v. Cunningham, 5 Ired. (N. C.) 430; Kenyon v. Kenyon, 17 R. I. 539,
23 Atl. 101, and 24 Atl. 787.
Same - Dower in Rents.
As will be seen in another place, the husband may have estates in the rents issuing out of land, the same as he may in the land itself; and the rule as to dower is the same. If the husband is owner of a rent in fee or in tail, the widow can have her dower in it;104 but not if it is merely for life.105 On the other hand, if the husband grants to another an interest in land, and reserves a rent, she will take her share of the rent as an incident of the dower which she takes in the land itself.106