It is likewise urged, that the statute has not authorized the court through commissioners to assign dower in a portion of lands in lieu of dower in the whole. As in declaring the right, our statute has only enacted the common law, we must look to it for the rules regulating its assignment, unless it is otherwise provided for by the act. Park, in his treatise on Dower, p. 255, says that, "In the simple state of property in former times, it is probable that the only provision that was made for the security of the dowress was, by requiring that the sheriff should assign to her a third part of each existing denomination of property. Thus he was bound to assign her a third part of each manor, if there were several; or a third part of the arable, a third part of the meadow, and a third part of the pasture." And it is said in Bac. Abr. 374, letter D, " If a woman be dowable in three manors, and accept of the heir one of these manors in lieu of dower in all of the rest, this is good, though against common right, which gives her but the third part of each manor." And Roll's Abridgment, 683, is referred to in support of the doctrine. We thus see that the common law, or common right, as it is sometimes called by the ancient writers, gave to the widow one-third part of each particular tract. While this is true, it also permitted the heir and the widow, by mutual consent, to allot a specific tract in lieu of dower in several parcels, and when so assigned, the law upholds and enforces it between the parties. But its validity depended alone upon the agreement, as neither could be compelled by the law to make such an assignment.
And in this country, the courts, so far as we have found, have adopted the same rule. Scott v. Scott, 1 Bay, 504; Coulter v. Holland, 2 Harring, 330; Sip v. Lamback, 2 Har. N. J. 442. But it may be that cases are to be found which announce a different rule, although we have not been referred to them, if they exist. It however seems to us, that when considered upon principle, that it is more reasonable, just and convenient, that each tract should bear the burden of the widow's dower, annexed to and growing out of it. If the dower in all of several tracts may be imposed upon one or more, to the relief of others, it might be made to operate with great injustice to purchasers or heirs. In case of purchasers of several tracts without any relinquishment by the widow, it would be highly unjust to endow her out of the portion purchased by one, and to exempt the other. It would be equally wrong to impose the whole of the widow's dower in the estate upon the portion of one heir, and exempt the others. If this might be done, purchasers would be disinclined to pay the value of real estate at sales by executors and administrators, of real estate subject to the widow's dower. And yet they have no power to compel its assignment.
Again, under our statute this widow's dower is an incident to the land held by a particular description of title. It attaches to all of the lands alike held by that description of title, and not to a portion of them. By the marriage the right attaches to the lands then held, and as others are subsequently acquired, it attaches to them. And by the husband's death the right becomes consummate, as it originally attached to each separate parcel, and we are aware of no statute or rule of the common law that will permit the court or the commissioners without the consent of the parties, to release one portion from the burden and impose it upon another. If the parties choose to do so, they have the unquestioned right, or if the commissioners were to so assign it, and it were approved by the court without objection, where the parties were not under disability, or if by their report it appeared that the parties in interest consented, and it were not disproved, such an assignment would be good. But without such agreement by parties capable of assenting, when objected to, the court should set aside the report and refer it back to the same or other commissioners.
In assigning the widow's dower, the commissioners should so allot it, having reference to quantity and quality, that her portion shall be equal in its yearly value or income to one-third of the yearly value of the tract from which it is taken. They should not consider the intrinsic or cash value, but the yearly income, but its capacity at the time for production, and assign to her such a portion as will produce one-third of that value. If after such an assignment the profits are increased by her expenditure of money or labor, it is her compensation for the expenditure.
That this is the true rule seems to be manifest from the provisions of the 28th section of the dower act. It provides that in case the property is not susceptible of a division, and the commissioners shall so report, the court, shall impanel a jury and ascertain its yearly value, and render judgment that the widow shall be paid on a day named, one-third of the amount annually, during her natural life. This provision proceeds upon the principle that it is one-third of the yearly value and not one-third of the number of acres or the cash value of the land of which she is to be endowed.
For the reason that the assignment of dower in this case was not of the one-third part of such tract, and was a part of two tracts only, the decree of the court below affirming the report of the commissioners must be reversed, and the cause remanded, with instructions to refer it back to the same or other commissioners.
15 Massachusetts, 164. - 1818.
Writ of dower. Demandant's husband was seized during coverture of the lands in question and conveyed them to defendants. The lands when conveyed were, and still are, uncultivated and covered with wood and timber.
Parker, C. J. - Upon this question we have had considerable difficulty. By the common law, the widow is dowable of all the real estate of which her husband was seized during the coverture, with the exception only of a castle erected for public defense, of a common in gross, and some other kinds of estate not known in this country. The question whether forest, parks, and other property of a similar nature, are also exceptions, seems never to have occurred; probably because there is no instance, in Great Britain, of any such property held separately and distinct from improved and cultivated estates.