In this country, on the contrary, there are many large tracts of uncultivated territory owned by individuals who have no intention of reducing them to a state of improvement, but consider them rather as subjects of speculation and sale, or as a future fund for their posterity, increasing in value with the population and improvement of the country. If dower could be assigned in estates of this nature the views of those who purchase such property would be obstructed; and an impediment to their transfer would be created, and in many instances the inheritance would be prejudiced, without any actual advantage to the widow to whom the dower might be assigned. For, according to the principles of the common law, her estate would be forfeited if she were to cut down any of the trees valuable as timber. It would seem, too, that the mere change of the property from wilderness to arable or pasture land, by cutting down the wood and clearing up the land, might be considered as waste; for the alteration of the property, even if it became thereby more valuable, would subject the estate in dower to forfeiture - the heir having a right to the inheritance in the same character as it was left by the ancestor.
It is not an extravagant supposition that lands actually in a state of nature may, in a country fast increasing in its population, be more valuable than the same land would be with that sort of cultivation which a tenant for life would be likely to bestow upon it; and that the very clearing of the land, for. the purpose of getting the greatest crops with the least labor, which is all that could be expected from a tenant in dower, would be actually, as well as technically, waste of the inheritance.
There would seem, then, to be no reason for allowing dower to the widow in property of this kind. If she did not improve the land, the dower would be wholly useless; if she did improve it, she would be exposed to dispute with the heir, and to the forfeiture of her estate, after having expended her substance upon it.
But this is not all. It is well understood, by the common law, and the principle has been repeatedly settled in this court, that the dower of the widow is not to be assigned, so as to give her one-third of the land in quantity, but so that she may enjoy one-third of the rents and profits, or income, of the estate. Now, of a lot of wild land, not connected with a cultivated farm, there are no rents and profits. On the contrary, it is an expense to the owner, by reason of the taxes. The rule, therefore, by which dower is to be assigned cannot be applied to such property.
It is observable also that, at common law, the right of damages for detention is incident to the right of dower; from which it may be inferred that there can be no dower in land, the detention of which can be no injury. Now, the detention of wild land from the widow can form no subject of damages. Our statute has adopted the same principle, and has also expressly prohibited strip or waste by the tenant in dower; and has expressly required that she keep the fences, buildings, etc., in good repair, and shall so leave the same. This is all predicated upon the supposition that the estate of which a widow is dowable, may be retained by the heir to her prejudice, has fences and buildings upon it, and is in fact, in a state of actual cultivation and improvement.
Upon the whole, seeing no possible benefit to the widow from an assingnment of dower in such property; and, on the contrary, believing that it would operate as a clog upon estates designed to be the subject of transfer; and finding that the principles upon which the estate in dower rests at common law are not applicable to a case of the kind before us, - we feel constrained to say that the demandant cannot maintain her present action.
This case seems never to have been expressly decided before; and yet there is a prevalent opinion among lawyers against the claim of dower in such property. Possibly the point may have been decided before the publication of the decisions of this court commenced.
The case of Sargent et al. v. Towne, and several decisions of the court, respecting the manner in which widows shall be endowed, when land has been alienated by the husband, have a bearing towards the decision we have adopted.1
(/.) Estates in joint tenancy and in partnership.
41 New Jersey Equity, 392. - 1886.
The Chancellor. - This is a suit for specific performance of a contract for sale of real estate by the complainants to the defendant. The objection made to the title is that the wives of the complainants' grantors, who held the title as joint tenants in fee, did not join in the conveyance to the complainants, and it is urged that the wives, who are living, may have a right of dower in the property. By the common law, no title of dower attaches where the husband is seized of the land jointly with another or others. This is owing to the nature of the estate of joint tenants. The possibility, so long as the joint ownership subsists, that the estate of each tenant may be wholly defeated by his dying in the lifetime of the other or others, prevents the attaching of the right of dower in the wives of any of the tenants, except the survivor. The estate which the husband must have to entitle his wife to dower is one in severalty or in common. The unity of interest in joint tenancies, each tenant is seized per my et per tout, prevents the admission of a right of dower of curtesy, except as to the estate of the survivor. On the decease of one joint tenant the survivor holds the whole property under and by virtue of the original grant, and holds no part of it in anywise under the descent. 2 Cruise's Dig. 444.
We have not, in this State, changed the law in respect to dower in such estates either by statute or legal adjudication. The statute, it is true, provides that the wife shall have dower in all the real estate of which her husband or any other to his use, was seized of an estate of inheritance at any time during the coverture, to which she shall