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.
In this country the custom has universally prevailed of barring dower by the joinder of the wife in a deed to the land by the husband, and this method of barring dower is valid in cases where the conveyance is by way of mortgage, as well as when it is absolute. The conveyance should contain apt words indicating the wife's intention to release her dower and, accordingly, her mere joinder in the execution of her husband's deed has been regarded as insufficient. By the statutes of most States, it is necessary that the wife acknowledge the conveyance, the requirements in this respect being usually made the same as those imposed in the case of a conveyance of the land of a married woman, and, in some States - notably, New Jersey - she must be examined separately and apart from her husband in order to determine that she is not acting under coercion by him. These requirements as to acknowledgment have been generally regarded as absolute, so that a non-compliance therewith will render the instrument ineffective as a release of dower.
If the husband's will contains a provision for his wife, which is intended to be in lieu of dower, and she accepts it, she cannot claim dower. As the right of dower is itself a clear legal right, an intention to exclude that right by voluntary gift must be demonstrated by express words, or by clear and manifest implication.
In order that a testamentary provision for the widow may bar her right of dower, it is necessary that she accept it, she having what is known as a "right of election," whether she will take her dower or the testamentary gift. In order that the election be binding, it must be made with full knowledge, on the widow's part, of the condition of her husband's estate, and the relative values of her dower interest and the testamentary provision. Such election is either regulated by statute or required by law to be exercised within a reasonable time.
No general rule as to what acts on the widow's part constitute an election can be stated, but usually her actual receipt of, or entry upon, the property given her by will, with full knowledge of the facts, and retention and enjoyment thereof for a considerable time, will be construed as an acceptance of the testamentary provision. In some States the election must be express and in others it may be implied, as just indicated.
Since, in order to entitle one to dower, she must have been the wife of the owner of the land at the time of his death, an absolute divorce, even though for the husband's fault, has always been regarded, at common law, as divesting dower. Occasionally it is provided by statute that a divorce for the fault of the husband shall not bar dower and such a statute sometimes requires dower to be assigned immediately upon divorce, without awaiting the husband's death. In this State, if the divorce be granted for the husband's adultery, he loses his right to curtesy while his divorced wife retains her right to dower in any real estate of which he then is or was seized. In case the divorce be granted to the husband because of his wife's guilt, his interests in her real and personal property remain unaffected, but she is by such decree of divorce barred of all her dower interests.
The widow, it has been held, may be estopped to claim dower by having made statements to intending purchasers that she will make no such claim, but she is not, it seems, estopped by mere failure to assert her claim at the time of the sale of her husband's land. She has been held to be estopped by knowledge that her husband was living with another woman as his wife and failure to assert her rights during his life.
Unless it is otherwise agreed, or it is impracticable or inequitable, dower must be assigned by metes and bounds.
And in order that such assignment be valid, it must, in the absence of agreement otherwise, be of an estate for life, free from any condition or exception. In some cases, assignment by metes and bounds is impracticable, or is so inequitable that it will not be sanctioned by a court and in these cases another method must be adopted. Accordingly, if the property is so situated that it cannot be divided by metes and bounds, then the widow may be granted a proportionate part of the rents and profits, or, in some cases, a right of alternative occupation and enjoyment.
This principle is applied in cases of mines, dower in which would, if practicable, be assigned by metes and bounds, but which may be otherwise assigned in the form of a share of the rents, or profits, or a right of alternative occupation, and it is even sufficient to set out its equivalent in value in other real estate of which the widow is dowable.
If the widow is entitled to dower in separate tracts of land, the common rule is that she should be given one-third of each tract, rather than a single tract equivalent in value to the aggregate of her dower rights in all tracts. And in the case of several tracts conveyed by her husband, without her joinder, the justice of the rule that dower should be assigned in the land of each grantee, and not in the land of one alone, is apparent. In the case of lands belonging to the husband at the time of his death, however, the statute quite frequently provides for the assignment of her whole dower out of one tract rather than in part out of each of the tracts, and this is always permissible if the widow and the heirs agree thereto. It has likewise been decided that dower should be assigned entirely out of a tract of land belonging to the husband's estate, rather than partly in lands conveyed by him with a warranty of title, since, in any case, the husband's estate would be liable under the warranty for the amount of the dower.
In cases where the widow is entitled to dower in the proceeds of the lands subject to dower, as where a mortgage thereon is foreclosed, or a partition sale is made, she is generally given the annual interest on the third part of such proceeds for the period of her life. The parties may agree upon a gross sum to be paid the widow as representing her dower interest. But, in the absence of agreement, unless expressly authorized by statute, a gross sum cannot be given her by the Court in lieu of dower. When an assignment of the gross sum is made by the Court, in accordance with an agreement of the parties, or by force of the statute, or in any other case, the present value of the dower interest is usually computed, as in the case of other life estates, by reference to mortality tables indicating the expectation of life at the different ages.
The amount of property to be assigned to the widow is determined by its productive value, she being entitled to such property as will produce one-third of the rents and profits which all the husband's freehold property would produce.
Since dower is an estate only for the life of the widow, an action to obtain an assignment of dower necessarily abates on her death. And as there can be no recovery of damages at law unless the judgment likewise awards seisin of dower lands, the widow's death defeats such recovery, in the absence of statutory provision to the contrary, but does not prevent recovery of the rents and profits, in equity, provided suit for dower was brought during her life.
Assignment of dower, in accordance with the judgment or decree, is generally made by the sheriff or commissioners, the practice in this regard varying in the different States, but the action of such officials being usually subject to the approval of the Courts.
The estate of dower, after assignment, is considered to be a continuation of the husband's estate, the widow's title relating back to the time of his death, and consequently the heir is not regarded as having ever been seized of that part of the land whereof the widow was endowed. The widow has an estate for life in the property assigned, with all the rights and subject to all the liabilities of other life tenants. She may accordingly convey or incumber her estate. She is bound to pay taxes and to keep down interest on incumbrances, and she is liable for the commission of waste.
On the termination of the dower estate by her death the person who has a reversion after the dower estate, whether he be the husband, heir or devisee, or a grantee of the land, is entitled to immediate possession.
The Legislature of this State has never enacted a "Homestead Law," except to exempt a homestead of the value of $1,000 from execution sale.