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 .
Since the estate of dower is derived out of the estate of the husband, his estate must, in order that the wife be endowed, be one of inheritance,-that is, either a fee simple or a fee tail.3 Accordingly, there can be no dower when the husband had merely a life estate.4
There is no right of dower at common law if the husband had merely a chattel interest in land, such as a term for years, however long it may have to run,5 or even though it be renewable forever,6 nor can there be dower in an estate at will.7
98. Wyman v. Oliver, 75 Me. 421; Chouteau v. Missouri Pac. R. Co., 122 Mo. 375, 22 S. W. 458, 30 S. W. 299.
99. Co. Litt. 32a; 4 Kent, Comm. 40; Stoughton v. Leigh, 1 Taunt. 402; Weir v. Tate, 39 N. C. 264; Boyd v. Hunter, 44 Ala. 705; Williams v. Cox, 3 Edw. Ch. (N. Y.) 178; Herbert v. Wren, 7 Cranch (U. S.) 370, 378. 3 L. Ed. 374.
1. As to use surplus waters of a canal, Kingman v. Sparrow, 12 Barb. (N. Y.) 201.
2. Duncan v. Navassa Phosphate Co., 137 U. S. 647, 34 L. Ed. 825.
3. Litt. Sec. 36; 2 Bl. Comm. 131; Kennedy v. Kennedy, 29 N. J. Law, 185; Weir v. Tate, 39 N C. 264; Register v. Elder, 231 Mo. 321, 132 S. W. 699.
4. Harriot v. Harriot, 25 App. Div. (N. Y.) 245; Thompson v. Vance, 1 Mete. (Ky.) 669.
Even though the husband be seised of an estate per autre vie, and die before the cestui que vie, there is no right of dower. Gillis v. Brown, 5 Cow. (N. Y.) 388; Fisher v. Grimes, 1 Smedes & M. Ch. (Miss.) 107.
There is no dower where a fee tail is by statute made a life estate with a remainder in fee simple. Burris v. Page, 12 Mo. 358; Trumbull v. Trumbull, 149 Mass. 200, 4 L. R. A. 117, 21 N. E. 366.
Where one has an equitable estate for life, and a legal remainder, his widow is not entitled to dower, since the rule in Shelley's Case cannot apply. Kenyon v. Kenyon, 17 R. I. 539, 23 Atl. 101; 24 Atl. 787. See ante Sec. 153.
- Estates inheritable by issue. The estate must be one which might possibly descend to a child of the marriage, in case one be born, and, accordingly, if the husband is tenant in special tail as having an estate given to him and the heirs of his body by a certain wife, a subsequent wife has no right of dower.8 But issue need not be actually born, as in the case of curtesy, nor need the wife be physically able to bear issue.9