This section is from the book "Practical Real Estate Methods For Broker, Operator & Owner", by Thirty Experts. Also available from Amazon: Practical Real Estate Methods for Broker, Operator, Owner.
The ascertainment and setting off to the widow of the part of the husband's property in which the estate of dower shall exist, is known as the "assignment of dower." The assignment must be of one-third of the productive value of the property at the time of the assignment, except that improvements by one to whom the husband has conveyed property during marriage without his wife's consent, are not included in the valuation. If dower is not assigned to the widow, she may institute proceedings to compel assignment, and may therein usually recover damages for delay in assignment, or may, in an equitable proceeding, have an account of rents and profits.
Dower has been abolished by statute in some States, but not in New York; the widow being sometimes given an absolute share in the husband's lands in lieu of dower, while, in still other States, she has the right to elect between dower and a statutory share.
In order that the widow be entitled to dower, the husband's ownership need not have continued for any particular time, it being sufficient that it was but momentary, the title passing out of him immediately after its acquisition. It is generally in connection with the question of the duration of the seisin, or title, that consideration is given to a class of cases in which the title to the land is acquired, and disposed of, by separate instrument, which, however, constitute together but one transaction, and, in such cases, the title of the husband, frequently termed "transitory seisin," is not considered to be of such a character as to support dower, as against the rights of those in favor of whom a disposition is thus simultaneously made by the husband. The most common instance of the application of this principle is seen in cases in which a purchaser of property, on receiving a deed thereof, gives to his vendor a "purchase money mortgage," to secure the payment of the whole, or a part, of the purchase price. It is unnecessary the wife should sign such mortgage because the deed and mortgage are considered part of one transaction and the purchaser does not take such a title as will give a right of dower to his wife as against the mortgagee, though as against all other she is entitled to dower. The same principle applies where the purchaser of the property, instead of giving a purchase money mortgage to the vendor, gives a mortgage in pursuance of a prior agreement, and as part of the same transaction, to a third person, who furnishes the purchase money, and the right of dower is subordinated to the mortgage so given. And even though no mortgage be given, the vendor's lien for the price, which in many of the States arises by operation of law, takes precedence of dower.
The widow is entitled to dower in mines and quarries belonging to her husband which were opened and worked during his life, whether they be located on his or another's land, but, strange to say, she cannot open new mines, even in the lands assigned to her as dower, on the absurd theory that this would constitute waste.
In the case of exchanged lands it was formerly held that the wife was entitled to dower in the parcel acquired and the parcel conveyed in exchange, but common sense, which is supposed to be good law and equity, has changed the rule so that it now requires the widow to choose whether she shall have dower in those given, or received, by her husband.
By the making of a mortgage, in England, and in a number of the States of this country, the legal title is transferred, and thereafter an equitable title only, known as the "equity of redemption,' remains in the mortgagor. In this "equity of redemption," as in other equitable interests, the courts refuse to recognize any right of dower. But a different view has generally been taken by the courts of this country, it being held that, though the land of the husband is subject to a mortgage, which takes precedence of dower, the wife is entitled to dower therein as against all persons except the owner of the mortgage.
If the mortgage is paid by the husband before his death, or by his legal representative after his death, the widow is entitled to the benefit of such payment and may, accordingly, have dower as though the mortgage never existed. But if the mortgage is paid, after the death of the husband, by an heir, or devisee, or other person interested in the land, the widow must contribute a proportionate part of the amount paid. If the mortgage is paid by a purchaser from the husband, as a part of the contract of purchase, it is as if it were paid by the husband and the mortgage is extinguished as against the widow's claim of dower, while it is otherwise if the purchaser voluntarily pays it.
Since a mortgagee is entitled, at most, to a mere legal estate for the purpose of securing his claim, and, in many of the States, no more than a lien, his widow is not entitled to dower.
The interest of one as tenant in common, or as coparcener with others, is subject to dower. Where the land, jointly owned, is partitioned, the widow of one co-tenant is entitled to dower in such part of the land as is set off to her husband in severalty, and, as a general rule, in such part only. If there is a sale of the land by order of court, for the purpose of making partition, during the husband's life, the wife, if a party to the proceeding, loses her dower right in the land.
A conveyance by the husband before marriage will bar the wife's dower since the one essential of dower - ownership during marriage - is wanting. But this general rule is subject to an exception in this country, in case the conveyance by the husband is in fraud of dower - that is, is intended to deprive his future wife of dower. One may, however, before marriage, make a reasonable provision for his children of a former marriage.
Except where statute otherwise provides, the husband cannot, by making conveyance of property during marriage, without wife's joinder, bar the latter's dower. The only possible exception to this rule exists in the dedication of lands for public use, which, it has been decided, excludes the dower right. This is upon the grounds of public policy. Likewise where land is condemned for public use during the husband's life, the wife loses her right of dower therein.
In a number of States of this country, however, it is provided by statute that the widow shall have dower only in such land as the husband is seized or possessed of at the time of his death. But even the statute enabling a husband to convey lands free from dower, does not authorize a conveyance by him for an inadequate compensation for the simple purpose of barring dower, the same principle being applied to such a case as to a conveyance by the husband before marriage. A mortgage by the husband alone, during marriage, stands on the same footing as an absolute conveyance by him so far as regards the right of dower.
The fact that one to whom the husband conveyed the land was a purchaser for value without notice of the existence of a wife having dower rights does not affect her claim for dower, unless, according to some decisions, her conduct was of such a misleading character as to estop her from making the claim.
By the foreclosure of a mortgage signed by the wife, her dower is barred, but not so if she did not join in the instrument. The dower right is also liable to be divested or impaired by the enforcement of other liens which may have existed upon the property before marriage, or before it passed to the husband, but it is superior to a lien to which the property becomes subject in the hands of the husband after marriage, except in those few States in which dower exists only in the lands of which the husband died seized, where it would be divested by a sale to enforce the lien.
The wife may release her right of dower either inchoate or consummate, to a person seized of a freehold interest in the land. Such a release is, however, usually ineffective unless the husband joins therein. In the absence of statutes authorizing such transactions between husband and wife, the wife cannot usually, after the marriage, release her dower directly to her husband, or agree with him to relinquish it, in consideration of other provisions made by him for her.
The release of dower, since it involves an interest in lands, is within the Statute of Frauds and must be by an instrument in writing.