Since the right to dower is dependent on the husband's estate, if the latter is defeated by reason of an entry or judgment under a title paramount, the dower right is also defeated.88 A recovery against the husband in an action for the land must, however, in order to exclude dower, be on an actual title; and if by the collusion of the husband, it does not have this effect. This was so at common law, but was likewise declared by the statute of Westminster II, c. 4 (A. D. 1285), and in a number of states in this country there is a similar statute.89

83. Williams v. Lambe, 3 Brown, Ch. 264; Dick v. Doughten, 1 Del. Ch. 320; Law v. Long, 41 Ind. 586; Smith v .Fuller, 138 Iowa, 91, 16 L. R. A. (N. S.) 98, 115 N. W. 912; Mitchell v. Farrish, 69 Md. 235, 14 Atl. 712; Campbell v. Murphy, 55 N. C. 357; Reel v. Elder, G2 Pa. St. 308; Sondley v. Caldwell, 28 S. C. 580, 6 S. E. 818.

84. Post Sec. 229.

85. Ante Sec. 217, note 39.

86. Ante Sec. 212, note 90.

87. See Herbert v. Wren, 7

Cranch (U. S.) 370, 3 L. Ed. 374; Williams v. Cox, 3 Edw. Ch. (N Y.) 178; Weir v. Humphries, 4 Ired. Eq. (N. C.) 264, 273; Boyd v. Hunter, 44 Ala. 705, 719; Chase's Case, 1 Bland's Ch. 206, 227.

88. Park, Dower, 141; 4 Kent, Comm. 48; Cheek v. Waldrum, 25 Ala. 152; Stribling v. Ross, 16 111. 122; Emerson v. Harris, 6 Mete. (Mass.) 475; McClure v. Fairfield 153 Pa. St 411, 26 Atl. 446.

89. 1 Scribner, Dower, 608; 4 Kent, Comm, 48; 1 Sharswood & conversion by paramount authority, given dower out of the surplus proceeds of sale, as representing the husband's interest in the land.9 In some states she is given dower out of such surplus proceeds even when the sale lakes place before the husband's death.10

In case an estate is subject to an express condition subsequent, and the grantor or his heir enters for breach of the condition, since this renders the grantee's estate void ab initio, there is no right of dower in favor of the widow of the grantee.90

If the husband's land is condemned for public use during his life, the wife loses her right of dower therein.91

In a fee simple conditional, as it existed before the statute De Donis,92 there appears to have been a right of dower93 in the widow of the tenant, although for other purposes the tenancy came to an end upon the tenant's death by reason of a lack of issue;94 and so it is generally recognized that, since that statute, there is dower in favor of the widow of a tenant in tail, though for other purposes the estate tail came to an end on the husband's death, by reason of a lack of issue.95 And, likewise, it has been said, there is dower in favor of the widow of a tenant in fee simple although, for other purposes, the estate in fee simple comes to an end at the death of the tenant by reason of a failure of heirs general.96

B. Lead. Cas. Real Prop. 332; 1 Stimson's Am. St. Law, Sec. 3249.

90. Park, Dower, 153, 1 Scrib-ner, Dower, 291, 4 Kent. Comm. 49; Sullivan v. Sullivan, 139 Iowa, 679, 22 L. R. A. (N. S.) 691, 117 N. W. 1086; Beardslee v. Beards-lei, 5 Barb. (N. Y.) 324; Emerson v. Harris, 6 Mete. (Mass.) 475.

91. Moore v. City of New York, 8 N. Y. 110, 59 Am. Dec. 473; French v. Lord, 69 Me. 537; Duncan v. City of Terre Haute, 85 Ind. 104. See post Sec. 230, note 33.

92. Ante Sec. 23.

93. Or of curtesy in favor of the surviving husband. The dicta and decisions referred to in the balance of this section are frequently in terms in regard to curtesy, but the same considerations appear to apply in this connection to curtesy and dower.

94. Bract. 297b. Paine's Case, 8 Co. 68.

95. Litt. Sec. 53; Park, Dower, 158; 1 Cruise. Dig. tit. 6, c. 2, Sec. 4; 4 Kent. Comm. 49; Paine's Case,

8 Co. 68, 71; Smith's Appeal, 23 Pa. St. 9; Tomlinson v. Nickell, 24 W. Va 148. See, also, opinion of Gibson, C. J., in Evans v. Evans,

9 Pa. St. 190.

96 Bracton, 297b; Bro. Abr. Tenures, pl. 33; Park, Dower p. 158, 4 Kent. Comm. 49.

R. P.-49

It has been said that in the case of a conveyance of land to a man and his heirs, subject to a "collateral," or as we prefer to term it, a "special" limitation,97 if the estate comes to an end by reason of such limitation, there is no right of dower in the tenant's widow.98

- Effect of executory limitation. When an estate in fee simple given to the husband is subject to an executory limitation, as when it is subject to a limitation over in favor of another in case he die without issue, the widow has been regarded as entitled to dower, although the executory limitation takes effect and divests the husband's estate for other purposes.99 Such a view, however, though supported by the great weight of authority, has not been unanimously approved,1 and a contrary view may perhaps appear to be involved in a decision that, when a fee simple estate is given in default of appointment under a power, the exercise of the power will defeat the right to dower of the wife of the tenant in fee simple.2

97. Ante Sec. 93.

98. Park, Dower, 162, 1 Scrib-ner, Dower, 297; 4 Kent, Comm. 49; Jenkins, Centuries, 1, case 6; Midyette v. Grubbs, 145 N. C 851, 13 L. R. A. (N. S.) 278, 58 S. E. 795.

99. Buckworth v. Thirkell, 3 Bos. & P. 652, note; Moody v. King,

2 Bing. 447; Aloe v. Lowe, 278 111. 233, 115 N. E. 862; Rice v. Rice, 133 Ky. 406, 118 S. W. 270; Kennedy v. Kennedy, 29 N. J. L. 185; Greene v. Reynolds, 72 Hun (N. Y.) 565; Clark v. Clark, 84 Hun (N. Y.) 362; Pollard v. Slaughter, 92 N. C. 72, 53 Am. Rep. 402; Evans v. Evans 9 Pa. St. 190; Sheffield v. Cooke. 39 R. I. 217, Ann. Cas. 1918E, 961, 98 Atl. 161;

Milledge v. Lamar, 4 Desaus, (S. C.) 617; Jones v. Hughes, 27 Gratt. (Va.) 560; Couch v. East-ham, 69 W. Va. 710, 39 L. R. A. (N. 73 S. E. 314; Contra, Edwards v. Bibb, 54 Ala. 475; See also the citations upon the similar point in regard to curtesy, post Sec. 242. note 14.

1. See Park, Dower, 177 et seq. Co. Litt 241a, Butler's notes; 3 Preston, Abstracts 372, 4 Kent.

Comm. 50; Gray, Perpetuities, Sec. 14, note.

2. Ray v. Pung, 5 Barn. & Aid. 561; Moreton v. Lees, Sugden, Powers, 480. There are dicta to the same effect in Chinnubbee v. Nicks, 3 Port, (Ala.) 362; Peay v. Peay, 2 Rich. Eq. (S. C.) 409.

The question of the right to dower when the estate of the husband has for other purposes come to an end, is one as to which, as appears from the above citations and references, the law is in very considerable confusion. A uniform rule on the subject, resting on a logical basis and readily capable of application, is highly desirable, and for the suggestion of such a rule we are indebted more particularly to a comparatively recent writer on the subject.3 This writer considers that the important consideration in this connection is whether the estate out of which dower is claimed came to an end before the husband's death or at the time of such death, the widow being entitled to dower in the latter case and not in the former, and this distinction appears to find support in the doctrine that after assignment of dower the widow's seisin is regarded as a continuance of that of the husband, which cannot be if the husband's estate came to an end before his death.4 The asserted distinction, though seldom judicially indicated,5 accords in result with the decisions, the numerous cases in which the taking effect of a limitation over in favor of another was held not to affect the dower right in the widow of the first taker being almost in

Before the English decisions above cited, the question was the subject of much debate. See Sug-den, Powers, 478. The practical importance of the question lay in the fact that, before the English dower act, a favorite device to prevent dower from attaching in favor of the wife of the purchaser of land involved the conveyance of the land to such uses as the purchaser should, by deed or will, direct or appoint, and in default of appointment, to the purchaser, his heirs and assigns. See 1 Scribner, Dower, 295.

3. Professor Raleigh C. Minor in 1 Virginia Law Rev. at p. 2 et seq. Somewhat the same distinction is suggested in 1 Scribner, Dower, 319; 1 Bishop, Married Women, Sec. 313.

4. Post Sec. 233, note 53.

5. In Buckworth v. Thirkell, 3 Bos. & Pul. 653 note, Lord Mansfield, in asserting the right to curtesy, when the estate of the wife had come to an end by reason of a limitation over in case of her death without issue, said that "during the life of the wife she continued seised of a fee simple, to which her husband might possibly inherit." variably cases of a limitation over on death without issue. Under such a view, an appointment under a power divesting the husband's estate would defeat dower when made during his life, but not when made at or after his death, as for instance, when made by his will.