This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
The estate of dower is an estate to which a widow is entitled, at common law, for the period of her life, in one-third of the lands and tenements of which her husband was seised in fee simple or fee tail, and which her issue, if any, would inherit.30 The expression "dower," is applied, however, somewhat indiscriminately, not only to such an estate, as it exists after the husband's death and after the designation by proper authority of the specific part of the lands and tenements in which such estate is to exist, but also to the right, after the husband's death, to have such designation made, and even to the possibility, existing before the husband's death, that the wife may survive the husband and so become vested with such right.
30. There were formerly in England other kinds of dower besides that which still survives, and which is distinguished by the name of "common-law dower." These were dower by special custom, dower ad ostium ecclesiae, dower ex assensu patris, and dower de la pluis beale. The latter was abolished with the abolition of tenure in chivalry by the statute of 12 Car. II. c. 24. Dower by special custom never existed in this country, though special modifications of the dower right exist in various localities as a result of statutory provisions. Dower ad ostium ecclesiae and and dower ex assensu patris involved voluntary endowment by the husband, and were abolished in England by the dower act of 3 & 4 Wm. IV. c. 105, Sec. 13. They never existed in this country, but they are to some extent now represented by the institutions of jointure and marriage settlements. See 2 Blackst. Comm. 132.
The widow's dower estate is not to be regarded as acquired by her by descent or inheritance. Even before the husband's death she has a possibility of acquiring the estate, of which she cannot be deprived by any voluntary act of the husband,31 and her right to the dower estate ordinarily takes priority over the claims of his creditors,32 in both of which respects it differs from the possibility of an expectant heir. The widow is said, in the older books, to hold "of" the heir33 and the right of dower really involves, not an application of the law of descent, but rather, so far as that law, by reason of intestacy, has any operation, an interference with that law.34 The dower right constitutes an incumbrance in favor of the woman, which has its inception upon the marriage or upon the husband's acquisition of the land, and which represents a power on her part to demand that an estate, at common law in one-third for life, be given to her at his death. The question whether the wife, in acquiring the dower estate, or the statutory substitute therefor,35 takes as heir, has been the subject of several recent decisions involving the application of the state inheritance tax, and these cases have ordinarily adopted the view in this regard outlined above.36
31. Post Sec. 230.
32. Post Sec. 222.
33. Co. Litt. 31b, 241a; 2 Blackst. Comm. 135; Watkins, Descent, 83.
34. See Williams, Real Prop 85.
35. Post Sec. 236.
36. McDaniel v. Byrkett, 120 Ark. 295, 179 S. W. 491; In re Weiler's Estate, 122 N. Y. Supp. 608, aff'd 139 App. Div. 905; In re Shield's Estate, 68 Misc. (N. Y.) 264; In re Strahan, 93 Neb. 828, 142 N. W. 678; Commonwealth's Appeal, 34 Pa. 204; Crenshaw v. Moore, 124 Tenn. 528, 34
L. R. A. (N. S.) 1161, Ann. Cas. 1913A, 165 137 S. W. 924; In re Bullen's Estate, 47 Utah 96, L. R. A. 1916C 670, 151 Pac. 533.
Contra, Corporation Commission v. Dunn, 174 N. C. 679, 94 S. E. 481; Billings v. People, 189 111. 472, 59 L. R. A. 807, 59 N. E. 798. See the discussion in 15 Columbia Law Rev. 693, 25 Harv. Law Rev. 181, 16 Mich. Law Rev. 276.
As regards the application of the inheritance tax law when the widow accepts a testamentary provision in lieu of dower, or there is an antenuptial settlement, see editorial note 15 ColumSec.Sec. 209, 210] Estates Arising From Marriage.