Until the death of the husband, the wife has merely a contingent right or interest, known as "dower inchoate.'" She has no estate in the land even after the husband's death, until the "assignment" of dower27 and a fortiori she has no estate before his death.28 Until his death, she has a possibility of an estate, conditioned, in the first place, upon her survival of him, and in the second, upon the assignment of dower.29 Since however she can insist on the assignment of dower after his death, the only contingency of a substantial character is that of her survival. Conse24. Rosenthal v. Mayhugh, 33 Ohio St. 155; Magee v. Mellon, 23 Miss. 585. Compare Marvin v. Smith. 46 N. Y. 571; Jackson v. Vanderheyden, 17 Johns. (N. Y.) 167.

25. As when land was purchased by the ancestor of the former owner's wife, and then sold by him with covenants of warranty, it being considered that such wife, being liable on the covenants as having received property from her ancestor, could not claim dower, as she would have to respond for the amount thereof. Torrey v. Minor, 1 Smedes & M. Ch. (Miss.) 489 See, also, Russ v. Perry, 49 N. II. 547.

26. Manatt v. Griffith, 147 Iowa, 707, 124 N. W. 753; Fleming v. People, 78 W. Va. 176, 88 S.

E. 1058

27. Post Sec. 231.

28. Boyd v. Harrison, 36 Ala. 533; Smith v. Howell, 53 Ark. 279. 13 S. W. 929; Goodkind v. Bartlett, 136 111. 18, 26 N. E. 387; Reiff v. Horst, 55 Md. 42; Magee v. Young, 40 Miss. 164, 90 Am. Dec. 322; Bonfoey v. Bonfoey, 100 Mich. 82, 58 N. W. 620; Brannock v. Magoon, 216 Mo. 722, 116 S. W. 500; Moore v. City of New York, 8 N. Y. 110, 59 Am. Dec. 473; El-mendorf v. Lockwood, 57 N. Y. 322; McArthur v. Frankin, 16 Ohio St. 193; Arnold v. Buffalo R. & P. Ry. Co., 32 Pa. Super. Ct. 452.

29. In Bullard v. Briggs, 7 Pick. (Mass.) 533, Parker, C. J., says that "it is more than a possibility, and may well be denominated a contingent interest." In quently, it seems, the possibility of an estate represented by the expression "dower inchoate" might he regarded as analogous to the possibility created by an executory limitation in one's favor conditioned to lake effect in case she survives another.

It has been decided, in a very considerable number of cases, that inchoate dower is not a "vested right," from the point of view of constitutional law, and that consequently the legislature may diminish or abolish it, by legislation adopted between the inception of the right and the death of the husband.30 There are, however, occasional decisions of a contrary tendency31 and it might perhaps be questioned whether the view that dower inchoate is within legislative control is entirely in harmony with the generally accepted view that, for certain purposes, it is a valuable right, which the law will protect.32 It would appear to be clearly distinguishable from one's expectation based on the law of descent, which is in any case subject to the will or caprice of the ancestor as regards the execution of a will, and is evidently not a vested right. In several cases it has been decided that the wife's inchoate right of dower is extinguished in case of condemnation of the land for public use, although she is not a party to the proceeding and receives no part of the compensation, the husband being regarded as representing the entire ownership of the property for this purpose.33 Occasionally this same idea has been extended to a case when the land was acquired for public use, not by a condemnation proceeding but by a voluntary conveyance made by the husband alone.34

Mason v. Mason, 140 Mass. 63, it is called a "vested right of value, dependent on the contingency of survivorship." It has also been termed "a mere intangible, inchoate, contingent expectancy." Smith v. Howell, 53 Ark. 279. 13 S. W. 929. Such general phrases are perhaps hardly calculated to add to our understanding of the matter.

30. Randall v. Kreiger, 23 Wall. (U. S.) 137, 23 L. Ed. 124; Boyd v. Harrison, 36 Ala. 533; Goodkind v. Bartlett, 136 111. 18, 26 N. E. 387; McNeer v. McNeer, 142 111. 388, 19 L. R. A. 253. 32 N. E. 681; Strong v. Clem, 12 Ind. 37, 74 Am. Dec. 200; Lucas v. Sawyer, 17 Iowa, 517; Barbour v. Barbour, 46 Me. 9; Morrison v. Rice, 35 Minn. 436, 29 N. W. 168; Griswold v. McGee, 102 Minn. 114. 112 N. W. 120, 113 N. W. 382; Magee v. Young, 40 Miss. 164, 90 Am. Dec. 322; Lee v. Lindell, 22 Mo. 202, 64 Am. Dec. 262; Meli-zet's Appeal, 17 Pa. St. 449, 55 Am. Dec. 573; Hilton v. Thatcher, 31 Utah 360, 88 Pac. 20; Hamilton v. Hirsch, 2 Wash. Terr. 223, 5 Pac. 215; Reynolds v. Whites-carver, 66 W. Va. 388, 66 S. E. 518.

31. In re Alexander, 53 N. J. Eq. 96, 30 Atl. 817; Class v. Strack, 85 N. J. Eq. 319, 9C Atl. 405; O'Kelly v. Williams, 84 N. C. 281 (semble).

32. See post, this section, notes 41-44.

The wife has been regarded as having such an interest in the land as to enable her to redeem from a mortgage thereon,35 a view which involves the corollary that she is a necessary party to the foreclosure proceeding, in order that she may be barred of her right of redemption.36

33. Venable v. Wabash West. Ry. Co., 112 Mo. 103, 18 L. R. A. 68, 20 S. W. 493; French v. Lord, 69 Me. 537; Moore v. New York, 8 N. Y. 110, 59 Am. Dec. 473; Flynn v. Flynn, 171 Mass. 312, 42 L. R. A. 98, 68 Am. St. Rep. 427, 50 N. E. 650; Summers v. Sullivan, 39 Mont. 42, 101 Pac. 166; Justice v. Georgia Industrial Realty Co., 109 Va. 366, 63 S. E. 1084. But, that the wife is entitled to share in the proceeds of the forced sale, without being a party to the proceeding, see Wheeler v. Kirtland, 27 N. J. Eq. 534. In re New York & B. Bridge, 75 Hun (N. Y.) 558, 27 N. Y. Supp. 597, 89 Hun (N. Y.) 219. 34 N. Y. Supp. 1002.

A decree against the husband in a suit to quiet title or to ascertain the character of his interest is binding on his wife, as regards her inchoate dower right. Lea v. Woods, 67 Iowa, 304, 25 N. W. 255; Stitt v. Smith, 102 Minn. 253, 113 N. W. 632, 13 L. R. A. (N. S.) 723.