Judgment affirmed.

Edwards V. Bibb

54 Alabama, 475. - 1875.

Stone, J. - * * * Under this will thus construed, Thomas Bibb, Jr., either took a fee simple, having another fee engrafted upon it by way of executory devise, to come into being on the happening of an event therein provided for as a conditional limitation, or he took only a life estate, and at his death, his lawful male issue, if he had left such, would have taken as purchasers. If the latter be the true construction of the devise, no one will contend that Thomas Bibb's widow would be dowable of the lands. Supposing, then, that the estate of Thomas Bibb was a defeasible fee, the question comes up, is his widow entitled to dower, the estate of her husband having expired with his life?

Few questions of the law have been discussed, or have given rise to more perplexing distinctions than that of the widow's right to dower in lands, the title to which passed out of her husband contemporaneously with his death, by force of some limitation, reversion or remainder. The case in hand is one of remainder, which has taken effect. The question is thus stated by a very accurate writer: "Is the widow entitled to dower after the estate of her husband has determined, before its natural expiration, by the happening of an event particularly mentioned in the instrument creating it, but without disturbing or overreaching his prior seisin?"

The case of Buckworth v. Thirkell, is one of the first cases on this question. 3 Bos. & Pul. 652, note. That case came before Lord Mansfield, one of England's greatest jurists, and it was determined that the husband was entitled to curtesy. The rule in regard to dower is the same on this question as that in regard to curtesy.

The case of Buckworth v. Thirkell has not had the good fortune of commanding universal assent. Mr. Butler, in his note to Coke upon Littleton, page 141, while conceding that upon the termination of an estate tail by the failure of issue, the right of curtesy or dower will attach as a prolongation of the estate, yet contended that when a fee simple is determined by a valid executory devise, neither curtesy nor dower ensues. Other writers contend for the same distinction. See very full discussions of this question in Park on Dower, page 157 et seq.; 1 Scrib. on Dower, 284 et seq. To follow them through the shadowy mazes of their disquisitions would tend rather to bewilder than instruct. The human mind is not wont to rest satisfied with distinctions when it can find no substantial differences to rest them on.

Speaking of dower, as affected by conditional limitations, Chancellor Kent says: "The estate of the husband is, in a more emphatical degree, overreached and defeated by the taking effect of the limitation over, than in the case of collateral limitation;" and, he adds, "the ablest writers on property law are evidently against the authority of Buckworth v. Thirkell, and against the right of the doweress when the fee of the husband is determined by executory devise, or shifting use." 4 Kent's Com. 50.

Mr. Jacob, in his learned note published in the appendix to 2 Bright on H. & W., p. 468, says: ' Upon the introduction of conditional limitations by way of use and executory devises, it became a question whether dower or curtesy should cease when the estate was determined by either of these modes. Upon principle, it would seem that the decision of this question ought to be guided by analogy to the general rule of the common law, and not by analogy to the excepted case of an estate tail. . . . The conditional limitation destroying the estate, defeats the whole of that which is expressly granted. It would be singular, if that which is included in the grant by implication only, could be preserved." He adds, "The supposed rule (speaking of Mr. Preston's attempt to justify the rule laid down in Buckworth v. Thirkell) rests on very doubtful grounds."

In New York, it was decided by Chancellor Walworth that where an estate in fee was terminated by the happening of a conditional limitation, and the executory devisees took as purchasers, the widow of the first devisee could not have dower. See Adams v. Beekman, 1 Paige, 631.

In the case of Welter v. Welter, 28 Barbour, 588, the same question arose as in Adams v. Beekman, supra. The court said, "The widow takes her estate through the husband and not from him like one who inherits; for he can do no act which will divest her right. And when the estate of the husband is determined by the happening of an event which defeats its further continuance, the estate in dower must be determined with it. It is a part of the same estate of freehold and inheritance of which the husband was seized, and, to the extent of it, so much abstracted from what would otherwise descend to the heirs at law. . . . The wife's right to dower ceased with the estate out of which it could only proceed. This conclusion conflicts with Lord Mansfield's judgment in Buckworth v. Thirkell. It is the rule, however, given by Mr. Cruise in his treatise on the law of real property, and is the rule now sustained by Mr. Park with singular ability in his work on the law of dower."

Washburn, in his work on real property, vol. 1, p. 212, says: "There is a class of cases where, what at first sight might seem to be an inconsistent doctrine is applied. Thus, in the familiar case of tenant in tail dying without issue, although the estate, as one of inheritance, is determined, and the remainder over upon such a contingency takes effect, yet, it having been an estate of inheritance in the tenant, his widow, if he dies, will be entitled to dower, it being by implication of law annexed to such an estate as an incidental part of it; a portion of the quantity of enjoyment designated by the terms of limitation itself. And the doctrine is broadly laid down by writers upon the subject, that wherever the husband is seized during coverture of such an estate as is in its nature subject to the attachment of dower, the right of dower will not be defeated by the determination of that estate by its regular and natural limitation." He adds: "This class of cases has given rise to much ingenious speculation and grave diversity of opinion, where the estate of the husband is one of inheritance, but ceases at his death by what is called a conditional limitation."