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.
Dower, at common law, is the estate to which a wife is entitled, upon the death of her husband, for the period of her natural life, in one-third of the lands and tenements of which her husband was seized in fee, at any time during marriage, and which her issue, if any, might inherit.
It will be seen that the common law, favoring man always - as the Christian yields to his Creator, or the subject favors his king - grants to him a life estate in the entire real property of his wife, while the latter, by dower, obtains a like estate in but one-third of the real estate of her spouse.
Dower is also allowed in lands in which the husband has an equitable interest corresponding to a legal estate of inheritance - such as lands claimed under a contract of purchase; mortgaged lands, and also personalty regarded, in equity, as land - chattels real.
This question of dower is ever present, and one of very practical application; it arises upon every conveyance and a purchaser is bound to inquire whether his grantor is married and satisfy himself of the proper marriage status of the female joining in the conveyance, if any.
The press of a late day has commented quite extensively upon the acts of a certain bank president residing in an adjoining borough and currently report conveyances made by him as "a widower." It was developed he has, at least, one wife living, who, of course, cannot be deprived of her dower interest by his conveyances as "a widower," and, as a consequence, his grantees must look to his personal warranty in the instrument of conveyance, or to such other remedy, at law or in equity, as may arise from each particular transaction, for a recovery of the damage they sustain. It may be remarked in passing that such incidents are not overlooked by title insurance companies, and the publicity which they encourage is not wholly unselfish. Title insurance, especially in this regard, is but the added warranty of a third person covenanting that the grantor's warranties are true, but learned and expert counsel for these institutions have so encompassed their contracts with "buts," "ifs" and "provisos" that even the traditional "Philadelphia lawyer" finds difficulty in ascertaining the true intent and worth of such insurance. However, the inexperienced can hardly afford to dispense with it.
Dower exists in land held by the husband in tenancy in common, or coparcenary, but not in that held in joint tenancy, except as a result of statutory changes, for, as you have doubtless heretofore learned, the surviving joint tenants take the interest of a deceased joint tenant.
Dower may be barred, or defeated, by one of eight methods:
(1) A conveyance by the husband before marriage, if not made in fraud of his wife's rights, though a conveyance by him after marriage will not have that effect.
(2) A destruction of the husband's estate, either by a paramount title, by entry for breach of condition, or by sale under a mortgage or other lien, superior to the dower right.
(3) A written release by the wife in favor of one purchasing, or owning the land, and this is usually contained in the husband's conveyance, or mortgage, and explains why the wife must join her husband in a conveyance, or mortgage, of his real property.
(4) A testamentary provision by the husband, in favor of the wife, in lieu of her dower rights, provided she elect to accept thereof.
(5) An antenuptial contract by the wife releasing dower, in consideration of other provisions made for her.
(6) A divorce, or in some States divorce for the wife's fault only.
(7) In some States, but not in New York, the elopement and adultery of the wife.
(8) Conduct on the wife's part constituting, in law, an estoppel as against her rights to claim dower.
Until the husband's death the wife has merely a contingent right in her husband's lands, known as "dower initiative," which she may release, but not convey. After his death the dower right ceases to be contingent, and is known as "dower consummate," which may be conveyed by her, in equity, and in some States at law. She has, however, no dower estate until dower has been assigned to her.