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 .
There is a right of dower only in lands and tenements.68 Consequently it does not exist in the case of crops or trees severed from the realty. But any crops or trees growing at the time of the husband's death are regarded as part of the land for the purpose of determining the property to be assigned as dower.70
Since one for whose benefit money is directed to be invested in land is regarded as having an interest in land rather than in money.71 if he dies before the investment is made his widow is entitled to dower.72 And since one for whose benefit land is directed to be sold is regarded as having an interest in money rather than in land, there is no right of dower in favor of his widow.73
When land is sold by order of court, after the husband's death, free of dower, for the purpose of paying the decedent's debts, making partition, or foreclosing a mortgage, dower will be allowed out of the proceeds, or surplus proceeds, of sale, as representing the land.74 In case the sale takes place before the
67. Post, Sec. 664.
68. Litt Sec. 36; 2 Blackst. Comm. 131.
69. Hallett v. Hallett, 8 Ind. App. 305, 34 N. E. 740.
70. Ralston v. Ralston, 3 G. Greene (Iowa) 533; Clark v. Bat-torf, 1 Thomp. & C. (N. Y.) 58; Midyette v. Grubbs, 145 N. C. 85, 13 L. R. A. (N. S.) 278, 58 S. E. 795; Delaney v. Manshum, 146 Mich. 525, 109 N. W. 1051. And see Mulholland's Estate, 154 Pa. St. 491, 26 Atl. 612.
71. See ante Sec. 118.
72. Haggard v. Rout's Heirs, 6 B. Mon. (Ky.) 247. In England, under the doctrine denying dower in equitable interests, dower was not allowed in money directed to be laid out in land. Park, Dower, 136; 1 Scribner, Dower, 450.
73. Berrien v. Berrien, 4 N. J. Eq. 37.
74. Chaney's Heirs v. Chaney's Adm'r, 38 Ala. 35; Upshaw v. Upshaw, 180 Ala. 204, 60 So. 804; Brown v. Brookhart, 146 Iowa 79, 124 N. W. 882; Ratcliffe v. Mason, 92 Ky. 190, 17 S. W. 438; Mac-cubbin v. Cromwell, 2 Har. & G. (Md.) 443; Cook's Ex'r v. Cook's Adm'r, 20 N. J. Eq. 375; Turner v. Kuehnle, 71 N. J. Eq. 466, 64 husband's death, the dower right is, in many jurisdictions, extinguished.75-76
- Mines and quarries. It has been said, with some degree of frequency, that the widow has dower in mines and quarries belonging to the husband which were opened and worked during his life.77 The word "mine," is ordinarily defined as an excavation by means of which minerals are extracted from the earth, and 'quarry" is likewise defined as an excavation made for the purpose of extracting stone. There cannot, however, be dower in an excavation, a mere void, and the statement above referred to would appear to mean merely that such part of the husband's land as consists of mineral deposits which were worked during his life is to be regarded in the same way as non mineral land for the purpose of assigning dower.
The statement that there is dower in mines which were opened during the husband's life involves the implication that there is no dower in mines which were not so opened, and occasionally explicit statements to that effect are to be found.78 Such a statement would seem to mean, not only that no dower is to be assigned in a tract of land which has no value apart from the unAtl. 478; Church v. Church, 3 Sandf. Ch. (N. Y.) 434; Nichols v. French, 83 Ohio St. 162, 93 N. E. 897; Chaffee v. Franklin, 11 R. I. 578; Jefferies v. Allen, 33 S. C. 268; Gwynne v. Estes, 14 Lea (Tenn.) 662; Hurst v. Dulaney, 87 Va. 444, 12 S. E. 800. For statutes to this effect, see 1 Stimson's Am. St. Law, Sec. 3216.
75-76. See post Sec. 230, notes 37-40.
77. Stoughton v. Leigh, 1 Taunt. 402; Lenkers v. Henke, 73 111. 405; Hendrix v. McBeth, 61 Ind. 473; Whittaker v. Lindley, 8 Ky. Law Rep. 690; Kentucky River Consol. Coal Co. v. Frazier, 161 Ky. 374, 170 S. W. 986; Moore v. Rollins, 45 Me. 493; Billings v. Taylor, 10 Pick (Mass.) 460, 20 Am. Dec. 533; Rockwell v. Morgan, 13 N. J. Eq. 389; Coates v. Cheever, 1 Cow. (N. Y.) 460; Shupe v. Rainey, 255 Pa. 432, 100 Atl. 138; Clift v. Clift, 87 Tenn. 17, 9 S. W. 360; Bond v. Godsey, 99 Va. 564, 39 S. E. 216.
78. Stoughton v. Leigh, 1 Taunt. 402; Kentucky River Con-sol. Coal Co. v. Frazier, 161 Ky.
[Sec. 212 opened mineral deposits therein, but also that, in case a tract, although containing such mineral deposits, is capable of profitable use without reference thereto, the one-third in value of such tract, to be assigned for dower, is to be ascertained without regard to these deposits. The view referred to may be assumed to be based on the consideration that the doweress, as life tenant, cannot work such deposits without being guilty of waste,79 and if, as appears to be the case.80 the one-third in value of the husband's land which is to be assigned as dower is such part as will produce one-third the rents and profits produced by all the husband's land, it seems proper to consider such only of the husband's land as will produce rents and profits available to the doweress. A different view, however, that the widow is entitled to dower in unopened as well as opened mineral deposits has been occasionally asserted.81
Accepting the distinction between an opened and an unopened mine as regards the right of dower, a mine, that is, a single vein or body of mineral,82 is regarded as opened in case any part thereof has been opened and worked.83 A lease by the husband, allowing the opening of the mine by the lessee, has been regarded as equivalent to the opening of the mine by the husband himself,84 and even a working by the heir, after the
374, 170 S. W. 986; Daniels v. Charles, 172 Ky. 238, 189 S. W. 192; Coates v. Cheever, 1 Cow. (N. Y.) 460; Crouch v. Puryear, 1 Rand (Va.) 228.
79. Post Sec. 282.
80. Post Sec. 233, note 98.
81. In re Seager, 92 Mich. 186, 52 N. W. 299; Reynolds v. Whites-carver, 66 W. Va. 388, 66 S. E. 518; Deffenbaugh v. Hess, 225 Pa. 638, 36 L. R. A. (N. S.) 1099, 74 Atl. 608.
82. That one vein is opened gives no right to the doweress as regards another vein, unless beneath the other. Crouch v. Puryear, 1 Rand. (Va.) 258.
83. Billings v. Taylor, 10 Pick. (Mass.) 460, 20 Am. Dec. 533; Moore v. Rollins, 45 Me. 493; Gaines v. Green Pond Iron Min. Co., 33 N. J. Eq. 603.
84. Priddy v. Griffith, 150 111. 560, 41 Am. St. Rep. 397, 37 N. E. 999; Daniels v. Charles, 172 Ky. 238, 189 S. W. 192; Keon v. Bartlett, 41 W. Va. 559, 31 L. R. A. 128, 56 Am. St. Rep. 884, 23 S. E. 664; Alderson's Adm'r v. Alderhusband's death; has been regarded as sufficient for this purpose.85
- Wild lands. In New England, upon the theory that wild and unimproved lands can generally be utilized only by cutting the wood thereon, and that a life tenant is not entitled so to do,86 it has been held that there is no dower right in such lands, except when they are capable of use in connection with a dwelling, or with improved lands, for such purposes as fuel, fencing, pasture, and the like.87 In other parts of the country, a different rule prevails, and the wife is given dower in wild and unimproved lands.88
- Exchanged lands. While, by the ordinary rules applicable to dower, if the husband, during coverture, exchange one parcel of land for another, the wife would be entitled to dower in both parcels, as land of which he was seised during coverture, an exception has been made in regard to lands so given and received in exchange; it being held that the widow, while entitled to choose whether she shall have dower in those given or those received by the husband, cannot have dower in son, 46 W. Va. 242, 33 S. E. 228 (curtesy).
85. Lenfers v. Henke, 73 111. 405, 24 Am. Rep. 263. See In re Seager, 92 Mich. 186, 52 N. W. 299; Higgins Oil & Fuel Co. v. Snow, 51 C. C. A. 267, 113 Fed. 433.
86. Post Sec. 283.
87. 1 Scribner, Dower, 206; Conner v. Shepherd, 15 Mass 167; Webb v. Townsend, 1 Pick. (Mass.) 21, 11 Am. Dec. 132; Stevens v. Owen, 25 Me. 94; Shattuck v. Gragg, 23 Pick. (Mass.) 88. The rule has occasionally been incorporated in a statutory provision. Ford v. Erskine, 50 Me. 227; Johnson v. Perley, 2 N. H. 56, 9 Am. Dec. 35; Goodspoed v. Lawrence, 208 Mass. 258, 94 N. E. 395. See 1 Stimson's Am. St. Law, Sec. 3219.
The fact that a purchaser from the husband of wild land improves it and changes its condition does not entitle the widow to dower. Webb v. Townsend, 1 Pick. (Mass.) 21.
88. Pike v. Underhill, 24 Ark. 124; Chapman v. Schroeder, 10 Ga. 321; Schnebly v. Schnebly. 26 111. 116; Hickman v. Irvine's Heirs, 3 Dana (Ky.) 121; Campbell's Appeal, 2 Dougl. (Mich.) 141; Brown v. Richards, 17 N. J. Eq. 32; Allen v. McCoy, 8 Ohio, both.89 But this rule restricting her dower to the lands given or those received applies only when the transaction is an "exchange," in the strict common-law meaning of the word, involving a mutual grant of equal interests in the respective parcels of land.90 The rule is in this country occasionally incorporated in a statute.91
- Incorporeal things, real. Since there is a right to dower in lands and "tenements," and this latter term is regarded as inclusive of incorporeal things real,92 it exists, subject to an important exception hereinafter referred to, in what we designate as "rights as to the use and profits of another's land."93 Thus, there is a right to dower in rent charged on another's land in favor of the deceased husband and his heirs,94 and also in a fishing privilege, or other right of profit,95 and in a right to erect a wharf on another's land.96
In rights in another's land, however, which "lie in appendancy," as it is sometimes expressed,-that is, which are incident to the husband's ownership of other land, or of another estate therein,-there is no independent right of dower, though indirectly the widow obtains dower therein by reason of her dower right in the land or estate therein to which such right may be appendant.97 Accordingly, there is no right to dower in an easement, apart from the land to which it is appurtenant.98 And, in the case of a rent reserved on a lease for years, the dower right therein exists merely by reason of the existence of such right in the reversion to which the rent is incident.99
418; Macaulay's Ex'r v. Dismal Swamp Land Co., 2 Rob. (Va.) 507.
89. Co. Litt. 31b; Stevens v. Smith, 4 J. J. Marsh. (Ky.) 64, 20 Am. Dec. 205; Towsley v. Smith, 12 Up. Can. Q. B. 555; De-Witt v. De Witt, 202 Pa. St. 255, 51 Atl. 987.
90. Hartwell v. De Vault, 159 111. 325, 42 N. E. 789; Cass v. Thompson, 1 N. H. 65, 8 Am. Dec. 36; Mosher v. Mosher, 32 Me. 412. And see Wilcox v. Randall, 7 Barb. (N. Y.) 633. As to exchange, see post Sec. 375.
91. 1 Stimson's Am. St. Law, Sec. 3218; 1 Sharswood & B. Lead. Cas. Real Prop. p. 346.
92. Ante Sec. 5.
93. Park, Dower, 110 et seq.
94. Co. Litt. 32a; 1 Scribner, Dower (2d Ed.) 198; Chaplin v. Chaplin, 3 P. Wms. 229; Chase's Case, 1 Bland Ch. (Md.) 227.
95. Co. Litt. 32a; Park, Dower, 112.
96. Bedlow v. Stillwell, 158 N. Y. 292, 53 N. E. 26.
97. Park, Dower, 114; 1 Scribner, Dower, 199.