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 .
If the husband's estate in the land is merely a reversion or remainder upon a particular estate of freehold in another, the seisin is, properly speaking, in that other, and not in him,37 and consequently the wife is not entitled to dower unless such prior estate terminates during coverture, and before the husband has aliened his reversion or remainder.38 If, however, the particular estate is one
35. Bank of Commerce v. Owens, 31 Md. 320; Burnet v. Burnet, 46 N. J. Eq. 144, 18 Atl. 374; Hawley v. Bradford, 9 Paige (N. Y.) 200; Hoy v. Varner, 100 Va. 600, 42 S. E. 690.
Crehore, 5 Pick. (Mass.) 145; Bell v. City of New York, 10 Paige (N. Y.) 49; McCabe v. Bellows, 7 Gray (Mass.) 148, 16 Am. Dec. 467; Norris v. Morrison, N. H. 490; Cockrill v. Armstrong, 31 Ark. 580. But it has been decided that, where the holder of a mortgage which takes precedence of the dower right of the widow purchases the property from the husband or the husband's estate, the widow may redeem by paying her proportionate share of the mortgage debt. Woods v. Wallace, 30 N. H. 384; Van Vronker v. Eastman, 7 Mete. (Mass.) 157. But see McCabe v. Bellows, 7 Gray (Mass.) 148, 66 Am. Dec. 467. See 1 Scribner, Dower, 488 et seq.
37. Watkins, Descents, 29; Williams, Real Prop., 334; Co. Litt 32a.
38. Duncomb v. Duncomb, 3 Lev. 437; Talty v. Talty, 40 App. Dist. Col. 587; Kirkpatrick v. Kirkpatrick 197 111., 144, 64 N. E. 267; Young v. Morehead ,94 Ky. 608, 23 S. W. 511; Willmarth v. Bridges, 113 Mass. 407; Von Arb v. Thomas, 163 Mo. 33, 63 S. W. 94; Otis v. Parshley, 10 N. H. 403;
[ Sec. 217 for years only, the husband has the seisin, and his widow is entitled to dower.39 If the husband is seised of an estate for his life, and has also a remainder in fee, but there is an intervening vested estate of freehold in another person, which does not terminate during coverture, since the life estate does not, in such case, merge in the fee, so as to give the husband seisin in fee, there is no right of dower.40
- Dower out of dower. From this requirement that the husband shall have a present estate of freehold, and not merely a reversion or remainder, arises the maxim "Dos de dote peti non debet," which means simply that a widow is not entitled to dower in land in which the husband had only a reversion upon an estate of dower outstanding in the widow of a previous owner. In other words, upon the assignment of dower, the dower estate is, after assignment, reDurando v. Durando, 23 N. Y. 331; In re Dixon, 156 N. C. 26, 72 S. E. 71; Gardner v. Greene, 5 R. I. 104; Lunsford v. Jarrett, 11 Lea (Tenn.) 192; Cocke's Ex'r v. Phillips, 12 Leigh (Va.) 248; Dudley v. Dudley, 7G Wis. 567, 8 L. R. A. 814, 45 N. W. 602; Contra. semble Cummings v. Cummings, (N. J. Ch.) 75 Atl. 210; Green v. Huntington, 73 Conn. 106, 40 Atl. 883.
Accordingly there is no right of dower in land which the husband inherited from his mother subject to an estate of curtesy. Leach v. Leach, 21 Hun, (N. Y.) 381.
In Ohio the statute gives dower in land of which the deceased held the fee simple in reversion or re mainder. Gen. Code, Sec. 8006. In Iowa and Pennsylvalia a statute giving the widow a share of decedent's real estate was held to apply as well to reversions and remainders as to other interests. O'Connor v. Halpin, 106 Iowa, 101, 147 N. W. 185; Cote's Appeal, 79 Pa. St. 235. See Walden v. Walden, 213 Mass 418, 100 N. E 049.
39. Co. Litt, 32a; 1 Scribner, Dower, 230; Boyd v. Hunter, 44 Ala. 705; Sykes v. Sykes, 49 Miss, 190; Weir v. Tate, 39 N. C. 204.
40. Park, Dower, 57; 1 Scribner, Dower, 233; Eldredge v. For-restal, 7 Mass. 253; Moore v. Esty, 5 N. H. 479. Compare House v. Jackson, 50 N. Y. 161. As to whether an intervening contingent remainder of freehold will have this effect of preventing dower, see 1 Scribner, Dower (2d Ed.) 235 et seq.; 4 Kent, Comm. 40.
The rule applies to land which is obtained by devise, as well as that obtained by descent, the widow of the devisee not being entitled to dower in the portion of the land which has been assigned as dower to the testator's widow, since in this case, also, the devisee has no estate in possession in such portion, until the death of the testator's widow.42
The right of the heir's widow to dower in all his land is not affected by a mere right to dower in the ancestor's widow, but dower must have been actually assigned to the latter in order to affect the former,43 though the assignment is sufficient to bring the case within the rule if it is made after the death of the heir.44 If, however, dower is actually assigned to the
41. Co. Litt. 31a; McLeery v. McLeery, 65 Me. 172, 20 Am. Rep. 683; Leavitt v. Lamprey, 13 Pick. (Mass.) 382, 23 Am. Dec. 685; Dunham v. Osborn, 1 Paige (N. Y.) 634; Safford v. Safford, 7 Paige
(N. Y.) 259, 32 Am. Dec. 633; In re Cregier, 1 Barb. Ch. (N. Y.) 598, 45 Am. Dec. 416; Reitzel v. Eckard, 65 N. C. 673.
42. Robinson v. Miller, 2 B. Mon. (Ky.) 284; Eldredge v. For-restal, 7 Mass. 253; Durando v. Durando, 23 N. Y. 331.
But in the case of land not devised, but conveyed, by a father to his son, the father's wife not joining in the conveyance, the son has an estate in possession be fore his father's death and consequently, though the father's widow is entitled to dower in all the land, the widow of the son is also entitled to dower in all the land, subject only to the dower estate of the father's widow for her life. Co. Litt. 31a; Stahl v. Stahl, 114 111. 375. 2 N. E. 160; Dunham v. Osborn, 1 Paige (N. Y.) 634; Reitzel v. Eckard, 65 N. C. 673.
43 Co. Litt. 31a; Robinson v. Miller, 2 B. Mon. (Ky.) 284; Null v. Howell, 111 Mo. 273, 20 S. W. 24; McLeery v. McLeery, 65 Me 172, 20 Am. Rep.683.
44. 1 Scribner, Dower (2d Ed.)
[Sec. 218 heir's widow, before dower is assigned to the ancestor's widow, the former is entitled to dower in the whole premises upon the death of the ancestor's widow, and not in two-thirds only, since her life estate, acquired before the assignment to the ancestor's widow, can be defeated by the latter's estate, subsequently arising, only to the extent of that estate.45