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 interest of one as tenant in common or as coparcener with others is subject to dower, the undivided share being, except for purposes of possession, regarded as a separate tenement, of which the tenant is solely seized.46 In the case of land held in joint tenancy, however, the rule is different, and, so long as the joint tenancy exists, the widow of one joint tenant is not entitled to dower. This is the case even when the husband effects a severance by a conveyance to a third person, though a severance will entitle the widow to dower if the husband thereafter remains solely seised.47 It has been held, however, in states where the right of survivorship has been abolished, that the widow is entitled to dower.48
- Effect of partition. Where land jointly owned is partitioned, the wife of one cotenant is entitled to dower in such part of the land as is set off to her in
326; McLeery v. McLeery, 65 Me. 172, 20 Am. Rep. 683; In re Cregier, 1 Barb. Ch. (N. Y.) 598.
45. Co. Litt. 31b; Reitzel v. Eckard, 65 N. C. 673; In re Creigier, 1 Barb. Ch. (N. Y.) 598; Steele v. La Frambois, 68 111. 456.
46. Litt. Sec. 45; Challis, Real Prop. 346; Reynard v. Spence, 4 Beav. 103; Harvill v. Holloway, 24 Ark. 19; Ross v. Wilson, 58 Ga. 249; Cook v. Walker; 70 Me. 232; Rockwell v. Rockwell, 81 Mich. 493, 46 N. W. 8; Lee v. Lindell, 22 Mo. 202, 64 Am. Pec. 262; Jackson v. Edwards, 22 Wend. (N. Y.) 498; Whitney v. Whitney, 45 N. H. 311; Dudley v. Tyson, 167 N. C. 67, 82 S. E. 1025.
47. Litt. Sec. 45; Park, Dower, 39; 1 Scribner, Dower, 337; Mayburry v. Brien, 15 Pet. (U. S.) 21, 10 L. Ed. 646; Babbit v. Day, 41 N. J. Eq. 392; Cockrill v. Armstrong, 31 Ark. 580.
48. Reed v. Kennedy, 2 Strob. (S. C.) 67; Davis v. Logan, 9 Dana (Ky.) 185; Holbrook v. Finney, 4 Mass. 566, 3 Am. Dec. 243.
Sec. 218 ] Estates Arising From Marriage 759 severalty, and, as a general rule, in such part only.49 If there is a sale of the land by order of court for the purpose of making partition, during the husband's life, the wife, if a party to the proceedings, loses her dower right in the Land,50 and, by the current of decisions, even though she is not a party, on the theory that the liability to partition sale of property held in common is one of the incidents thereof to which the dower right is necessarily subject.51
- Land belonging to partnership. In this country the widow of a partner is ordinarily entitled to dower in so much of the partnership land as is left after the payment of firm debts and the adjustment of equities between the partners,52 except as this may be prevented
49. Potter v. Wheeler, 13 Mass. 504; Totten v. Stuyvesant,3 Edw. Ch. (N. Y.) 500; Mosher v. Mosher, 32 Me 412; Holley v. Glover 36
S. C. 404, 31 Am. St. Rep. 883, 15 S. E. 352; Lloyd v. Conover. 25 N. J. 47. If the portions assigned in severalty to the various owners are not in proportion to their undivided interests, as when the equalization is effected by an award of owelty, the widow of a co-owner who receives the lesser proportional share is not, it has been held, restricted to dower in the land set apart to her husband. Mosher v. Mosher. 32 Me. 412.
50. Greiner v. Klein, 28 Mich. 12; Warren v. Twilley, 10 Md. 39; Jordan v. Van Epps, 85 N. Y. 427. As to whether she is entitled to share in the proceeds of sale, see post, Sec. 230, notes 39, 40.
51. Davis v. Lang, 153 111. 175, 38 N. E. 635; Haggerty v. Wagner, 148 Ind. 625, 39 L. R. A. 384, 48
N. E. 366; Williams v. Westcott, 77 Iowa, 332, 14 Am. St. Rep. 287, 42 N. W. 314 (statute); Mitchell v. Farrish, 69 Md. 235, 14 Atl. 712; Teckenbrock v. McLaughlin, 246 Mo. 711, 152 S. W. 31; Lee v. Lin-dell. 22 Mo. 202, 64 Am. Dec. 262; Weaver v. Gregg, 6 Ohio St. 547, 67 Am. Dec. 355; Holley v. Glover, 36 S. C. 404, 16 L. R. A. 776, 31 Am. St. Rep. 8S3, 15 S. E. 605. So by statute: Staser v. Gaar Scott
& Co., 168 Ind., 131, 79 N. E. 404; Chase v. Angell, 148 Mich. 1, US Am. St. Rep. 568, 108 N. W. 1105; Frahm v. Seaman, 179 Iowa 114, 159 N. W. 206.
52. Lenow v. Fones, 48 Ark. 557, 4 S. W. 56; Loubat v. Nourse, 5 Fla. 350; Bopp v. Fox, 63 111. 540, Trowbridge v. Cross, 117 111., 109,
7 X. E. 347; Grissom v. Moore. 106; Ind. 2!)(i, 55 Am. Rep. 742, 6 N. E. 629; Dickey v. Shirk. 128 Ind. 278, 27 N. E. 733; Paige v. Paige, 71
[Sec. 219 by a local rule confining dower to legal estates.53 There may, however, be an agreement among the partners that the land shall be considered personalty for all purposes, and in such case there is no right of dower,54 and such is the case in jurisdictions in which, as in Eng-land, such an agreement is presumed.55 On the other hand, land may belong to the members of a firm, even though acquired with partnership funds, not as members of the firm but as individuals, holding as tenants in common or joint beneficiaries of a trust, and the wife of a partner is entitled to dower in such land regardless of the firm liabilities.56