Sec. 171. Dower in legal estate, p. 277.

Sec. 172. Dower in equity of redemption, 1834-1879, p. 281.

Sec. 173. Dower in equity of redemption since 11th March, 1879, p. 282.

Sec. 174. Quantum of dower in equity of redemption, p. 286.

Sec. 175. Bar and forfeiture of dower, p. 291.

Sec. 176. Tenancy by the curtesy, p. 297.

Sec. 171. Dower in legal estate

It is provided in Ontario by the Dower Act, R.S.O. 1914, c. 70, s. 2, as follows:

2. A widow, on the death of her husband, may tarry in his chief house for forty days after his death, within which time her dower shall be assigned her (a), if it has not been assigned her before, and in the meantime she shall have her reasonable maintenance; and for her dower shall be assigned to her the third part of all the lands of her husband, whereof he was seised at any time during coverture, except such thereof as he was seised of in trust for another. 25 E. 1; Magna Charta, c. 7.

Apart from statute, dower is an incident of the legal estate. As a mortgagor of land has only an equitable interest, his widow had formerly no right of dower in the mortgaged land. On the other hand, the legal estate being in the mortgagee, his widow was at common law entitled to dower, but so long as the legal right to redeem existed the inchoate right to dower might be defeated by the payment of the mortgage at the time fixed for payment, and after the legal right to redeem was lost, so long as the equitable right to redeem existed, equity by injunction prevented the right of dower in the mortgagee's estate from being asserted (b).

(a) As to procedure and as to assignment of dower, see R.S.O. 1914, c. 70, ss. 21 ff.; rules 5, 51, 52 and 543, and form 122; R.S.O. 1914, c. 114, s. 4 (the Partition Act); McNally v. Anderson, 1914, 31 O.L.R. 561, 19 D.L.R. 775; Allan v. Rever, 1902, 4 O.L.R. 309.

In Ontario a husband who becomes the owner of the legal estate in the lands during coverture cannot defeat his wife's claim to dower without her concurrence. In England, by the Dower Act, 1833, under which a wife first became entitled to dower in equitable interests (c), it was also enacted in effect that the wife's claim to dower might be excluded by a declaration to that effect contained in a conveyance to her husband or in a deed executed by him, or might be defeated by the absolute disposition of the land by her husband in his lifetime or by his will. These provisions by which complete control over the wife's dower rights was given to the husband have not been adopted in Ontario. The English statute as a whole came into force in British Columbia, Manitoba and the Northwest Territories (including Saskatchewan and Alberta) by virtue of the subsequent general adoption of English law (d), and the English statute has been expressly re-enacted in British Columbia (e). In Manitoba, Saskatchewan, Alberta and the Northwest Territories dower was afterwards abolished by statute (f), but more recently in Manitoba, Saskatchewan and Alberta certain restrictions have been placed upon the right of a husband to sell, mortgage or otherwise dispose of his "homestead" as defined in the statutes without the written consent of his wife executed and proved in the manner therein prescribed (g).

(b) Co. Litt. 205, and note; Strahan, Law of Mortgages, 2nd ed., p. 128; Ham v. Ham, 1857, 14 U.C.R. 497; Flack v. Longmate, 1845, 8 Beav. 420.

(c) As to dower in equitable interests, see Sec. Sec. 172, 173, infra. (d) English law was adopted in British Columbia as of the 19th November, 1858, in Manitoba and the Northwest Territories as of the 15th July, 1870.

(e) R.S.B.C. 1911, c. 68, the Dower Act.

(f) RS.M. 1913, c. 54, s. 19; R.S.S. 1909, c. 43, s. 22; Alta. statutes, 1906, c. 19, s. 5; R.S.C. 1906. c. 110. s. 12.

Dower at common law was where the husband of a woman was seised of an estate of inheritance and died; in that case the wife was entitled to the third part of all lands and tenements whereof the husband was seised at any time during the coverture to hold to herself for the term of her natural life. The requisites of dower were marriage, seisin of the husband and death of the husband. An inchoate right of dower is a right begun but not completed; a right where the two first requisites exist but not the third. It is merely a prospective right which a woman has in the hands of her husband while he is living; it may ripen into an actual right on his death, and it may be defeated by her death before her husband's. If the husband is seised of the legal estate in lands at any time during the coverture, even momentarily, the right of dower attaches. The seisin need not be actual seisin or possession; seisin in law is sufficient.

It is provided in Ontario by the Dower Act, R.S.O. 1914, c. 70, s. 5, as follows:

5. Where a husband has been entitled to a right of entry or action in any land, and his widow would be entitled to dower out of the same if he had recovered possession thereof, she shall be entitled to dower out of the same, although her husband did not recover possession thereof; but such dower shall be sued for or obtained within the period during which such right of entry or action might be enforced.

If the husband has possession at any time during coverture the wife's right to dower is not affected although he may have been dispossessed during coverture and his right to recover possession may have been barred by lapse of time. In that case the widow has after the husband's death the full time allowed by statute within which she may enforce her right (h).

(g) Sask. statutes, 1915, c. 29, as amended by 1916, c. 27, and 1917, c. 34; Alta. statutes, 1917, c. 14; Man. statutes, 1918, c. 21.

It is further provided by the Dower Act. ss 6, 7 and 8, as follows:

6. Dower shall not be recoverable out of any separate and distinct lot, tract, or parcel of land which, at the time of the alienation by the husband or at the time of his death, if he died seised thereof, was in a state of nature, and unimproved by clearing, fencing or otherwise for the purposes of cultivation or occupation; but this shall not restrict or diminish the right to have woodland assigned to the dowress under section 29, from which it shall be lawful for her to take firewood necessary for her own use, and timber for fencing the other portions of the same lot, tract or parcel assigned to her.

7. No dower shall be recoverable out of any land which has been heretofore or shall be hereafter granted by the Crown as mining land in case such land is, on or after the 31st day of December, 1897, granted or conveyed to the husband of the person claiming dower and he does not die entitled thereto.

8. Land dedicated by the owner thereof for a street or public highway shall not be subject to any claim for dower by the wife of the person by whom the same was dedicated.

A widow is not entitled to dower out of lands to which her husband at the time of his death was entitled as joint tenant; for the estate is not an estate of inheritance, but passes on the death of the husband to the surviving joint tenant. The widow of the survivor would, however, be entitled to dower (i). The estate of a tenant in common in lands other than partnership lands is an estate of inheritance and is subject to dower (j).

An estate is not subject to dower unless it be an estate of inheritance in possession. An estate in remainder or reversion in fee, expectant on a life estate, is not subject to dower if the husband sell his estate or die during the currency of the life estate, for the seisin is in the life tenant (k).

(h) McDonald v. McMillan, 1864, 23 U.C.R. 302. As to the limitation of actions for dower, see the Limitations Act, R.S.O. 1914, c. 75, ss. 26, 27 and 28; Cope v. Cope, 1895, 26 O.R. 441; Williams v. Thomas, [1909] 1 Ch. 713.

(i) Haskill v. Fraser, 1862, 12 U.C.C.P. 383. (j) Ham v. Ham, 1857, 14 U.C.R. 497; In re Music Hall Block, Dumble v. Mcintosh, 1884, 8 O.R. 225.

It is provided by the Devolution of Estates Act, R.S.O.

1914, c. 119, s. 9, as follows:

9.- (1) Nothing in this Act shall take away a widow's right to dower; but a widow may by deed or instrument in writing, attested by at least one witness, elect to take her interest under this Act in her husband's undisposed of real property in lieu of all claim to dower in respect of the real property of which her husband was at any time seised, or to which at the time of his death he was beneficially entitled; and unless she so elects she shall not be entitled to share in the undisposed of real property.

(2) The personal representative of the deceased may, by notice in writing, require his widow to make her election, and if she fails to execute and deliver a deed or instrument of election to him within six months after the service of the notice she shall be deemed to have elected to take her dower.

(3) Where the widow is an infant or a lunatic the right of election may be exercised on her behalf by the Official Guardian, with the approval of a Judge of the Supreme Court or by some person authorized by a Judge of the Supreme Court to exercise it; and the Official Guardian or the person so authorized may, for and in the name of the widow, give all notices and do all acts necessary or incidental to the exercise of such right.