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 .
Estates Arising From Marriage.
- Time of election. The statute in many states provides that the widow's election shall be made within a certain time after the death of the husband, the probate of the will, or her receipt of notice to elect, and a failure to elect within the statutory time will generally be equivalent to an election to take under the will.76 Apart from statute there is,it seems, no limit to the time within which the right of election may be exercised, though in certain cases the widow may be debarred by her delay from exercising the right as against intervening equities.77 In some cases, however, it is said that the right must be exercised within a reasonable time.78
- Mode of election. The election may be express.
76. 1 Stimson's Am. St Law, Sec.Sec. 3265, 3266; 2 Scribner, Dower (2d Ed.) 505; 1 Pomeroy, Eq. Jur. Sec. 513, note 4. As to whether a delay to elect beyond the statutory period will be ex used by the widow's insanity or ignorance of her rights, see article in 5 Law Notes, 145.
77. 1 Pomeroy, Eq. Jur. Sec. 513; 11 Am. & Eng. Enc. Law (2d Ed.) 106.
78. Reed v. Dickerman, 12 Pick. (Mass.) 146; Noel v. Garnett, 4
Call (Va.) 92; Crumpler v. Bar-field & Wilson Co., 114 Ga. 570, 40 S. E. 808. See Cooper v. Cooper, 77 Va. 198.
79. Goodrum v. Goodrum, 56 Ark. 532; Crumpler v. Barfield & Wilson Co., 114 Ga. 570, 40 S. E.
808; Reville v. Dubach, Go Kan. 572, 57 Pac. 522; Hill v. Hill, 62 N. J. L. 442, 41 Atl. 943; Van Orden v. Van Orden, 10 Johns. (N. Y.) 30, 6 Am. Dec. 314; Thompson's Lessee v. Hoop, 6 Ohio St. 480; Bradfords v. Kents, 43 Pa ute contains special provisions as to the mode of making the election, a quite ordinary requirement being that it shall be in writing.80
- Effect of acceptance of provision. More usually, the acceptance of the testamentary provision has been regarded as excluding dower, not only in land of which the husband died seised, but also in land conveyed by him during coverture without the joinder of the wife.81 Occasionally, however, the statute in regard to election has been regarded as giving to such acceptance the effect of excluding dower in the land only of which the husband dies seised,82 and the will may be susceptible of construction as showing an intention that the acceptance of the testamentary provision shall have such a restricted effect upon her dower right.83
The widow thus taking a testamentary provision in lieu of dower has been referred to as a purchaser for value up to the value of the dower right and, while the property so taken by devise has been occasionally regarded as ultimately liable for the testator's debts,84 according to the weight of authority it is not so liable till the property otherwise given by the will is exSt. 474; Upshaw v. Upshaw, 2 Hen. & M. (Va.) 381, 3 Am. Dec. 632.
80. 1 Stimson's Am. St. Law, Sec. 3267. See 11 Am. & Eng. Enc. Law (2d Ed) p. 104.
81. Haynie v. Dickens, 68 111. 267; Allen v. Pray, 12 Me. 138; Buffington v. Fall River Nat. Bank, 113 Mass. 246; Fairchild v. Marshall, 42 Minn. 14, 43 N. W. 563; Hornsey v. Casey, 21 Mo. 545; Spalding v. Hershfield, 15 Mont. 253, 39 Pac. 88; Steele v. Fisher, 1 Edw. Ch. (N. Y.) 435; Chapin v. Hill, 1 R. I. 446; Stokes v. Norwood, 44 S. C 424, 22 S. E. 734.
82. Westbrook v. Vanderburgh, 36 Mich. 30; Borland v. Nichols, the legal estate to the owner of the use, a married woman would have become dowable of lands which had been previously conveyed to the use of her husband, although she had already been provided for by jointure, had the statute not provided that no woman who had jointure should also have dower. In the construction of this statute it was held that the jointure, in order to defeat dower, must satisfy the following requirements: (1) It must commence immediately on the death of the husband; (2) it must be an estate for the wife's life, at least, and not a smaller estate; (3) it must be made to herself, and not in trust for her; (4) it must be made, and expressed to be, in satisfaction of her whole dower, and not of a part; (5) it must be made before marriage.89 Since a jointure fulfilling these requirements, called a "legal jointure," was sufficient to bar dower, irrespective of the wife's consent, by force of the statute alone, the fact that the wife was an infant was immaterial.90
12 Pa. St. 38, 51 Am. Dec. 576.
83. Hall v. Smith, 103 Mo. 289, 15 S. W. 621; Braxton v. Freeman, 6 Rich. Eq. (S. C.) 35, 57 Am. Dec. 775; Higgenbotham v. Cornwell, S Gratt. (Va.) 83, 56 Am. Dec. 130.
84. Steele v. Steele's Adm'r, 64 Ala. 438, 38 Am. Rep. 15; Hanna v. Palmer, 6 Colo. 156, 161; Miller \. Buell, 92 Ind. 482; Chambers v. Davis, 15 B. Mon. (Ky.) 522; Brant's Will, 40 Mo. 266; Isent-hart v. Brown, 1 Edw. Ch. (N. Y.) 411; McDaniel v. Douglas, 6
Humph. (Tenn.) 220. And see Clayton v. Akin, 38 Ga. 320, 95 Am. Dec. 393. That the property so taken is to that extent not liable hausted.85 Nor does a legacy so given usually abate with other general legacies, or, according to some authorities, with other specific legacies.86 By statute in a number of states, if the provision for the widow fails, after its acceptance by her, through the enforcement of claims by creditors, or otherwise, she is entitled to her dower as if no such provision had been made, and in some cases such a right has been enforced apart from statute.87