Cutler, p. 447, supra. This is often called the "New England Rule." It is now the statutory rule in Mass. and N. H. But there may be dower in wild lands used in connection with improved lands for purposes of estovers, pasturer etc. Stevens v. Owen, 25 Me. 94. - Ed.
not have relinquished her right of dower by deed duly executed and acknowledged (Rev. p. 320), and an estate in joint tenancy is, in terms, an estate of inheritance, but the right of survivorship in such estates has not been abolished. Such estates are recognized by statute (Rev. p. 167, § 78), and they retain their common law characteristics. By the term ''estate of inheritance" in the statute is meant an estate of inheritance in severalty or in common. Estates in joint tenancy are not included. The demurrer will be overruled.
63 Illinois, 540. - 1872.
Sheldon, J. - This was a petition in equity, on the part of Catherine Bopp, for the assignment of dower in the real estate of her deceased husband, Louis Bopp.
The claim of dower is in the one undivided one-fourth part of certain premises, by virtue of a conveyance thereof to Frederick Weaver, John Schuchman, Henry Burmeister and Louis Bopp, on the 8th day of March, 1865.
The defendants set up in resistance to the claim that they were purchasers of the whole of the premises at a receiver's sale thereof, made on the 13th of August, 1870, under an order of court in a certain suit for the dissolution of a copartnership between the said Weaver, Schuchman, Burmeister and Bopp, in which suit the said Weaver and Burmeister were complainants, and said Schuchman and Bopp were defendants; and that the said premises were bought with partnership funds for partnership purposes.
The only questions made on the record are, whether the premises were so purchased with partnership funds for partnership purposes, and if so, whether they were subject to the claim of dower. * * *
We consider this was essentially a purchase with partnership funds for partnership purposes. The property was required for the payment of partnership debts, and was duly appropriated to that purpose.
Under such circumstances, does a right of dower attach in favor of the widow of one of the copartners, in whose individual name stood the legal title, to the undivided one-fourth part of the land?
It is a well known rule, governing the relation of partnership, that partnership property must first be applied to the payment of partnership debts, and that the true and actual interest of each partner in the partnership stock is the balance found due to him after the payment of all the partnership debts and the adjustment of the partnership account between himself and his copartners. And in equity-real estate forms no exception, but stands on the same footing, in this respect, with personal property, no matter in whom the legal title may be vested.
Although Louis Bopp took the legal title to one-fourth of this land, in the view of a court of equity he never had any beneficial interest in it distinct from the partnership purposes, but he took it clothed with an implied trust that it should be applied to the payment of the partnership debts if necessary, and his widow was not entitled to her dower until this trust was fully executed and fulfilled.
These views and principles we regard as just, and as amply sustained by the great weight of authority.
For a full consideration of the subject and authorities bearing upon it, we refer to Buchan v. Sumner, 2 Barb. Ch. R. 165; Dyer v. Clark, 5 Mete. 562; Howard v. Priest, Id. 582; Collyer on Part., Perkins' Ed. 123 et seq., and notes.
It was supposed in the argument to make a difference that there were no partnership debts existing at the time the land was purchased, but we find no such limitation of the rule. The title was taken by Bopp chargeable not only for the payment of the partnership debts existing at the time of the purchase, but for the payment of any partnership liability that might be found to exist at the time of winding up the partnership concerns.
The interest of Louis Bopp in the land having been applied to the purpose of the implied trust upon which it was taken - the payment of the partnership debts if necessary for that purpose - his widow is not entitled to dower.
The court below should have dismissed the petition, instead of allowing dower, as it did, in the land, exclusive of the mill improvements. Decree reversed.
(4.) Barring Dower.1 (a.) Conveyance of, or charge on, land by intended husband before the marriage.
10 Maryland, 5. - 1856.
Mason, J., * * * delivered the opinion of the court. This is an action at law, for dower, instituted by the appellee. The prominent and controlling question of the case is, whether a sale of real estate, under an execution upon a judgment rendered against a party prior to his marriage, would defeat the claim of his widow to dower?
1 Under this head are considered the classes of cases in which dower never attaches; under (5) below those cases in which dower is defeated after it has once attached. - Ed.
This question is conclusively settled, upon authority, in the affirmative. Kent, in his Commentaries, 4th vol., page 50, thus states the law: "As a general principle, it may be observed that the wife's dower is liable to be defeated by every subsisting claim or incumbrance, in law or equity, existing before the inception of the title, and which would have defeated the husband's seisin."
The same doctrine is more broadly affirmed in the case of Greene v. Greene, 1 Ohio Rep. 542. In speaking of the widow's right to dower, Judge Sherman says: "Her estate is but part of his, is derived from him, and must be subject to all incumbrances existing against it at the time of the marriage, or the acquisition by the husband."