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 .
Unless it is otherwise agreed, or it is impracticable or inequitable, dower must be assigned by metes and bounds.76 And in order that such assignment be valid, it must, in the absence of agreement otherwise, be of an estate for life, free from any condition or exception.77 In some cases, assignment by metes and bounds is impracticable, or is so inequitable that it will not be sanctioned by a court, and in these cases another method must be adopted. Accordingly, if the property is such that it cannot be divided by metes and bounds, then the widow may be granted a proportional part of the rents and profits,
72. Co. Litt. 4b.
73. Doe d. Shelton v. Carrol, 16 Ala. 148.
74. Doe d. Cook v. Webb. 18 Ala. 814; Carnall v. Wilson. 21 Ark. 62; Flowers v. Flowers. 84 Ark. 557, 106 S. W. 33. But that the right is not so personal as to preclude its assignment, see Jones v. Manley, 58 Mo. 559.
75. Felch v. Finch, 52 Iowa, 563, 3 N. W. 570; Graves v. Cochran, 68 Mo. 74; Spinning v. Spinning, 41 N. J. Eq. 427. 5 Atl. 278; (nor make repairs); Branson v. Yancy, 1 Dev. Eq. (N. C.) 77. Contra, Riggs v. Girard, 133 111. 619. 24 N. E. 1031.
76. Litt. Sec. 36; 2 Scribner, Dower (2d Ed.) 80; Sanders v. McMillian. 98 Ala. 146, 18 L. R.
A 425, 39 Am. St. Rep. 19, 11 So. 750; Schnebly v. Schnebly, 26 111. 116; Stevens' Heirs v. Stevens, 3 Dana (Ky.) 371; Smith v. Smith, 6 Lans. (N. Y.) 313; Ben-ner v. Evans, 3 Pen. & W. (Pa.) 454. The statute occasionally so provides. 1 Stimson's Am. St. Law, Sec. 3276.
77. Co. Litt. 34b; Bullock v. Finch, 1 Rolle. Abr. 682; Went-worth v. Wentworth, Cro. Eliz 451; Austin v Austin, 50 Me. 77, 79 Am. Dec. 597. Consequently the assignment of dower, to endure only until the widow's death or marriage, is invalid as regards the reference to marriage. Davison v. Davison, 207 Mo. 702, 106 S. W. 1.
Estates Arising From Marriage.
This principle is applied in the case of mines, dower in which should, if practicable, be assigned by motes and bounds, but which may be otherwise assigned in the form of a share of the rents or profits, or a right of alternate occupation, and it is even sufficient to set out its equivalent in value in other realty of which the widow is dowable.80 It is also impracticable to assign dower by metes and bounds in lands held by the husband or his alienee jointly with others at the time of the former's death, and in such case the widow will hold her share in common with the other tenants, as well as the heir, devisee, or alienee of her husband.81 And the assignment cannot be by metes and bounds if the right of the husband's alienee to the benefit of improvements made by him, free from any claim of dower, would be thereby prejudiced.82
The character and extent of the dower right is ordinarily to be determined with reference to the
78. Co. Litt. 32a; Park Dower, 252; Stoughton v. Leigh 1 Taunt. 402; Sanders v. McMillan, 98 Ala. 146, 18 L. R. A. 425, 39 Am. St. Rep. 19, 11 So. V50; Scammon v. Campbell, 75 111. 223; Stevens' Heirs v. Stevens, 3 Dana (Ky.) 371; Chase's Case, 1 Bland (Md.) 206, 17 Am. Dec. 277; Rockwell v. Morgan, 13 N. J. Eq. 389; Shupe v. Rainey, 255 Pa. 432, 100 Atl. 138; Clift v. Clift, 87 Tenn. 17, 9 S. W. 360.
79. 1 Stimson's Am. St. Law Sec. 3276; 1 Sharswood v. B. Lead. Cas. Real Prop. 396.
80. Stoughton v. Leigh, 1 Taunt. 402; Lenfers v. Henke, 73 111. 405, 24 Am. Rep. 263; Hendrix v. McBeth, 61 Ind. 473. 28 Am. Rep. 680; Rockwell v. Morgan. 13 N. J. Eq. 389; Coates v. Cheever, 1 Cow. (N. Y.) 460; McGowan v. Bailey, 179 Pa. St. 470, 36 Atl. 325; Clift v. Clift, 87 Tenn. 17, 9 S. W. 360.
81.. Litt. 44; Co. Litt. 32b; Hart v. Burch, 130 111. 426, 6 L. R. A. 371, 22 N. E. 831; French v. Lord, 69 Me. 537; Blossom v. Blossom, 9 Allen (Mass). 254; Osborn v. Rogers. 19 N. J. Eq. 429; Gregory v. Gregory, 69 N. C. 522; Walker v. Walker, 6 Cold. (Tenn.) 571; Parrish v. Parrish, 88 Va. 529, 14 S. E. 325.
82. Beavers v. Smith, 11 Ala. 20; Francis v. Garrard, 18 Ala.
[ Sec. 233 law as it exists at the time of the husband's death, and consequently the widow may, by reason of a change in the law, acquire a less share in her husband's property on account of dower than she had at one time reason to anticipate.83 On the other hand a change in the law prior to the husband's death might enure to her advantage as against her husband's heirs or devisees.84 It has been decided, however, that she cannot profit by a change in the law as against one to whom the husband has, before such change, conveyed the land by a deed in which she did not join.85 And a statute depriving a husband of his pre-existing right to bar dower by his sole conveyance has been regarded as inapplicable to land acquired by him previous to the passage of the statute.86
- Separate tracts. If the widow is entitled to dower in separate tracts of land, the common-law rule is that she should be given one-third in value of each tract, rather than a single tract equivalent in value to the aggregate of her dower rights in all the tracts.87
794; Willet v. Beatty, 12 B. Mon. (Ky.) 172; Lewis v. James, 8 Humph. (Tenn.) 537.
83. Ante Sec. 230, note 30.
84. See Kennerly v. Missouri Ins. Co., 11 Mo. 204; Hilton v. Thatcher, 31 Utah, 360, 88 Pac. 20.
85. Strong v. Clem, 12 Ind. 37, 74 Am. Dec. 200; Taylor v. Sample, 51 Ind. 423; Joseph v. Fisher, 122 Ind. 099, 23 N. E. 856; Davis v. O'Ferrall. 4 Greene (Iowa) 168; Purcell v. Lang, 97 Iowa, 610, 66 N. W. 887; Given v. Marr, 27 Me. 212; Morrison v. Rice, 35 Minn. 436, 29 N. W. 168; Thomas v. Hesse, 34 Mo. 13.
86. Sutton v. Askew, 66 N. C. 172,' 8 Am. Rep. 500; O'Kelly v.
Williams, 84 N. C. 281. And that the rights of existing creditors to proceed against;h; land cannot be affected by legislation increasing the dower right, see Pat-ton v. City of Asheville, 109 N. C. 685, 14 S. E. 92; Davidson v. Richardson, 50 Ore. 323, 71 L. R A. (N. S.) 319, 126 Am. St. Rep. 738, 89 Pac. 742, 91 Pac. 1080.