But by the assignment of dower, the widow took a freehold estate, the right to which accrued in 1825, when the land in question was purchased by her husband, and her title by relation commenced at that time. Viner's Abr. tit. Relation; 3 Cowen's R. 75; Cruise's Dower, tit. 6, ch. 2, § 34. It displaced the seisin of the heir, and that of the husband which was in him at the time of his death, and from that period, turned the estate of the former into a reversion, expectant upon the determination of her estate. When proceedings for the sale were commenced before the surrogate, there were two estates, one for life, and a reversion expectant upon its determination. They originated at different times, and under a different seisin; that of the heir at the death of the intestate, that of the widow when the land was acquired. Together they would not make the same estate of which the husband died seised. That was subject to the claims of his creditors, and to a general claim for dower extending to all the lands of which he was seised during the marriage. After assignment, the estate of the widow overreached the former and extinguished the latter. The difference in interest is still more striking in those cases where the estate is largely encumbered. The widow's estate might be valuable, while the whole fee of which the ancestor and the heir were seised, might not be worth the expense of a sale.
According to the views of the defendant, the 31st section annuls the estate of the widow which she held as purchaser under a title reaching back to 1825, in favor of debts subsequently contracted, and revives her general claim against all the lands of the testator, which the statute of dower declares shall be forever barred by the assignment. 1 R. S. 742, § 23. This claim, extending to all the lands of the intestate, was the evil which the Legislature intended to suppress, because it would probably always depreciate the value of the whole real estate beyond the value of the widow's interest. This would occasion loss to the estate and to creditors without a corresponding benefit to any one. The 31st section, therefore, very properly afforded a remedy by substituting a pecuniary recompense for a claim thus indefinite. But when dower is assigned, the reason for the provisions cease. The purchaser knows what he is buying, and the law in directing compensation, assumes that the value of the widow's claim can be accurately calculated.
Again, by section 5, the order to show cause must be directed to all persons interested in the estate. Prior to the assignment, the widow's claim is upon all the real estate of the intestate; she is then interested in the estate, and entitled to the notice provided by the
6th and 7th sections. After assignment her interest ceases, and she is then remitted to her dower which she holds by title paramount to the heirs and the creditors of her husband. By the 10th section, the heir or devisee of the decedent, or any person claiming under them, may contest the facts alleged by the executor or administrator, etc.
The widow, before assignment, claims under and through the seisin of the heir, and may litigate; after assignment, she is in of the estate and seisin of the husband, and cannot. If she is not entitled to notice, nor the right to litigate, she cannot be bound by the decree of the surrogate. Without adverting to other parts of the act, it is sufficient to say, that they do not conflict with the construction given to the 31st section.
I think the authority of the surrogate to direct a sale, "free from all claim of dower," must be limited to cases where the heir upon whom the law casts the estate of the intestate could convey a fee in possession. In other words, it must be exercised, if at all, before the assignment of dower. Upon this construction, full effect can be given to the whole section; no estate is displaced; the tenants of the dowress are protected; she may bequeath the crops on the land holden by her. 1 R. S. 744, § 25. The provisions of this act harmonize with those of the statute concerning dower, and the only change is, that a claim, a chose in action, is made the subject of pecuniary compensation out of the proceeds of the land to which it relates.
The judgment should be reversed.
(2.) Essentials for Dower. (a.) Lawful marriage.
Bennett, J., in
28 Arkansas, 19. - 1872.
Was Delilah Jones the widow of Elbert Jones? This inquiry is an important one, as she is asking the court to award her dower, and marriage is an essential prerequisite to the right of dower. In order to entitle a woman to this provision, she must answer the description of a lawful wife. 1 Scribner on Dower, ch. 3, sec. 1. Marriage, under our statute, is considered in law a civil contract, to which the consent of the parties, capable in law of contracting, is necessary. Marriage has been regulated by legislative enactments, by defining the character and relations of parties who may marry, so as to prevent a conflict of duties and to preserve the purity of families; by prescribing the solemnities by which the contract shall be executed, so as to guard against fraud, surprise and seduction; by annexing civil rights to the parties and their issue, to encourage marriage and to discountenance wanton and lascivious cohabitation; by declaring the causes and the judicature for rescinding the contract, when the conduct of either party and the interest of the State authorize dissolution. A lawful marriage may be defined to be a contract made by parties authorized by law to contract, and solemnized in the manner prescribed by law. To constitute a lawful wife, there must have been a lawful marriage. It is generally considered in the absence of any positive statute declaring that all marriages, not celebrated in the prescribed manner, shall be absolutely void, or that none but certain magistrates or ministers shall solemnize a marriage, any marriage regularly made according to the common law, without observing the statute regulation, would still be a valid marriage. 2 Greenleaf, Ev. 417; 2 Kent. Com. 90, 91; Reeve's Dom. Rel. 196, 200, 290; Parton v. Harvey, 1 Gray, 119; Londonderry v. Chester,2 N. H. 268; Chiseldine v. Brewer, 1 Har. & McH. 152; Hantz v. Sealey, 6 Binn. 405.