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 .
At common law, the proceeding to obtain an assignment of dower was a writ of dower unde nihil habet, or writ of right of dower.22 In some states in this country, this, common-law proceeding is substantially retained, while in others there are statutes providing for actions to recover dower.23 In states where the code system of procedure prevails, with the consequent merger of law and equity, the action for dower does not differ from other actions.24 In some states, the statute authorizes the recovery of dower by action of ejectment, though at common law such action could not be brought by the widow till after assignment.25
The proceeding in equity for the recovery of dower is as effective as an action at law, and in some ways much more so, as the assignment of dower in equitable estates and interests can thereby be enforced,
Parks v. Siler, 76 N. C. 191; Schmitt v. Willis, 40 N. J. Eq. 515, 4 Atl. 767.
17. Bradshaw v. Callaghan, 5 Johns. (N. Y.) 80.
18. Brewer v. Browne, 68 Ala. 210; Hill v. Gregory, 56 Miss. 341; Davis v. Patty, 76 Miss. 753. 25 So. 662; Coles v. Coles, 15 Johns. (N. Y.) 329.
19-21 Leonard v. Motley, 75 Me. 418; Ward v. Gardner, 112 Mass. 42.
22. 2 Scribner, Dower. 91.
23. 2 Scribner, Dower, 114 et seq.; 1 Stimson's Am. St. Law, Sec. 3274.
24. See 7 Enc. Pl. & Pr. 171.
25. 2 Scribner, Dower, 34, 119.
[Sec. 234 an account of mesne profits can be obtained, and all parties interested can be brought before the court.26
In most of the states there is a statute providing for the assignment of dower by summary proceedings, the jurisdiction being generally vested in the court having probate jurisdiction. Under some of the statutes, the court has full power in such a proceeding to determine the widow's right to dower, while in others it has no such power, either losing jurisdiction if her rights are contested, or, in some states, merely assigning dower to her, without thereby establishing her right thereto. The jurisdiction in this class of proceeding is generally restricted to cases in which the husband dies seised, and where dower is assignable by metes and bounds.27
- Demand previous to suit. In the absence of statutory requirement, a demand of dower before bringing suit therefor is unnecessary.28 But in a number of states such a statutory requirement exists,29 and the amount of damages recoverable for detention of dower is frequently dependent on the time of making demand.30
When a demand is necessary, it must be a personal one upon the tenant of the freehold, if he is acces26. 2 Scribner, Dower, 145 et seq.
27. 1 Stimson's Am. St. Law. Sec. 3272; 2 Scribner, Dower (2d Ed.) 174 et seq.; 7 Enc. PI. & Pr. 186 et seq. The assignment by the probate court may in some states also be upon application of persons other than the widow, in which case it is not an adversary proceeding. See 1 Stimson's Am. St. Law, Sec. 3273.
28. 2 Scribner, Dower, 109; Conover v. Wright, 6 N. J. Eq. 613; Jackson v. Churchill, 7 Cow. (N. Y.) 287, 17 Am. Dec. 514; Sprague v. Stevens, 32 R. I. 361, 79 Atl. 972.
29. See Ford v. Erskine, 45 Me. 484; Burbank v. Day, 12 Mete. (Mass.) 557; Hasselman v. Allen, 42 Ind. 257; Davis v. Walker, 42 N. H. 482.
30. Infra, this section, note 39
Bible.31 It need not be in writing,32 nor need the agent or attorney making it be authorized in writing33 The demand must identify the property with reasonable certainty, and show the nature of the claim.34
- Damages for detention of dower. Though, at common law, the widow could not recover damages for detention of her dower, this right was given by an early English statute, as against the heir or a person wrongfully entering, and their assigns, as to lands of which the husband died seised.35 In most of the states there is a somewhat similar statutory provision authorizing the recovery of damages by the widow for the witholding of dower in lands of which the husband died seised;36 and the statute occasionally authorizes a recovery against the husband's alienee.37
Except as otherwise provided by statute, the damages recoverable as against the heir or devise are usually to be estimated from the time of the husband's death.38 Statutes allowing damages against the hus31. Luce v. Stubbs, 35 Me. 92; Pond v. Johnson, 9 Gray (Mass.) 193. A demand on the tenant of the freehold is sufficent, though he convey it before suit is begun. Barker v. Blake. 36 Me. 433; Watson v. Watson, 10 C. B. 3; Parker v. Murphy, 12 Mass. 485.
32. Co. Litt. 32b; Baker v. Baker, 4 Me. 67; Page v. Page, 6 Cush. (Mass.) 196. The commencement of suit has been regarded as a sufficient demand. Strawn v. Strawn, 50 111. 256; Killackey v. Killackey, 166 Mich. 311, 131 N. W. 519; Cowan v. Lindsey, 30 Wis. 586.
33. Watson v. Watson, 10 C. B. 3; Luce v. Stubbs. 35 Me. 92; Lothrop v. Foster, 51 Me. 367.
But it has been held that a power of attorney is insufficient for the purpose unless the premises are sufficiently identified therein. Sloan v. Whitman, 5 Cush. (Mass.) 532.
34. Haynes v. Powers, 22 N. H. 590; Atwood v. Atwood, 22 Pick. (Mass.) 283; Bear v. Snyder, 11 Wend. (N. Y.) 592.
35. Statute of Merton, 20 Hen. 1ll, c 1 (A. D. 1235). See Co. Litt. 32b; Park, Dower, 301.
36. 1 Stimson'e Am. St. Law, Sec. 3278; 2 Scribner, Dower, 700.
37. 2 Scribner, Dowor, 704.
38. Beavers v. Smith, 11 Ala. 20; Layton v. Butler, 4 Har. (Del.) 510; Wells v. Beall, 2 Gill & J. (Md.) 468; Jackso. v. O'Donaghy, 7 Johns. (N. Y.) 217; band's alienee generally provide that they shall be estimated from the time of demand for dower.39
Without reference to the right to recover damages at law, the widow is ordinarily regarded as entitled in equity to an account of her share of the rents and profits of the property against the husband's heir or devisee,40 and sometimes against the husband's alienee.41