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 .
87. 2 Scribner, Dower, (2d Ed) 587; Sehnebly v. Schnebly, 26 111. 116; Compton v. Pruitt 88 Ind. 171; O'Ferrall v. Simplot, 4 Iowa, 381; Wood v. Lee, 5 T. B. Mon. (Ky.) 50; Skolfield v. Robertson, 88 Me. 258, 34 Atl. 27; Jones v. Brewer, 1 Pick. (Mass.) 314; Sip v. Lawback, 17 N. J. L. 442; Scott v. Scott, 1 Bay (S.
And in the case of several tracts aliened by her husband, the justice of the rule that dower should be assigned in the land of each alienee, and not in the land of one alone, is apparent.88 In the case of lands belonging to the husband at the time of his death, however, the statute quite frequently provides for the assignment of her whole dower out of one tract, rather than in part out of each of the tracts,89 and this is always permissible if the widow and the heir agree thereto.90 It has likewise been decided that dower should ordinarily be assigned entirely out of a tract of land belonging to the husband's estate, rather than partly in land aliened by him.91 Occasionally in these latter cases the court has emphasized the fact that the husband's conveyance contained a covenant of warranty, as rendering it proper to protect the husband's alienee as against the husband's estate.92
- Assignment in money. In cases where the widow is entitled to dower in the proceeds of the sale of land subject to dower, as when a mortgage thereon is foreclosed, or a partition sale is made, she is usually given the annual interest on a third part of such proceeds for the period of her life.93 The parties may agree upon a gross sum to be paid the widow as representing her dower interest.94 But, in the absence of agreement, unless expressly authorized by statute, by the weight of authority, a gross sum cannot be given her by the court in lieu of dower.95 When an assignment of a gross sum is made by the court, in accordance with an agreement of the parties, or by force of a statute, or in any other case, the present value of the dower interest is usually computed, as in the case of other life estates, by reference to mortality tables indicating the expectation of life at different ages.96
C.) 504, 1 Am. Dec. 625. But see Pike v. Underhill, 24 Ark. 124. In some states it is provided by statute that, if possible, the husband's usual place of residence shall be included in the assignment. 1 Stimson's Am. St. Law, Sec. 3277(B).
88. See Doe d. Riddell v. Gwinnell, 1 Q. B. 682; Coulter v. Holland, 2 Har. (Del.) 330; Fos-dick v. Gooding, 1 Me. 30, 10 Am. Dec. 25; Thomas v. Hesse, 34 Mo. 13, 84 Am. Dec. 66; Cook v. Fisk, Walk. (Miss.) 423.
89. 1 Stimson's Am. St. Daw,
Sec. 3277; 1 Sharswood & B. Lead. Cas. Real Prop. 397.
90. See post, this section, note 8.
91. Lawson v. Morton, 6 Dana (Ky.) 471; Wood v. Keyes, 6 Paige (N. Y.) 478; Harrington v. Harrington, 142 N. C. 517, 55 S. E. 409. And see Raynor v. Raynor, 21 Hun (N. Y.) 36.
92. Wood v. Keyes, 6 Paige (N. Y.) 478; Richmond v. Harris. 102 Ky. 389, 43 S. W. 703; Lavery v. Hutchinson, 249 111.86, 94 N. E. 6.
93. Beavers v. Smith, 11 Ala.
Sometimes the statute authorizes the judicial sale of land in which it is impracticable fairly to assign dower, in order that the widow may take dower in the proceeds.97
20; Alexander's Ex'x v. Bradley, 3 Bush (Ky.) 667; Hinchman v. Stiles, 9 N. J. Eq. 361; Hale v. James, 6 Johns Ch. (N Y.) 258, 10 Am. Dec. 328; Higbie v. West-lake, 14 N. Y. 281. Ex parte Winstead, 92 N. C 703; Harrison's Ex'rs v. Payne, 32 Gratt (Va.) 387. See 1 Stimson's Am. St. Law, Sec.Sec. 3216, 3276(2).
94. Herbert v. Wren, 7 Cranch (U. S.) 370; Harrison's Ex'rs v Payne, 32 Grat. (Va.) 387; Robinson v. Govers, 138 N. Y. 425; John-son v Gordon, 102 Ga. 350, 30 S E. 507.
95. Herbert v. Wren, 7 Cranch (U. S.) 370, 3 L. Ed. 374; Beavers v Smith, 11 Ala. 20; Atkin v. Merrell, 39 111. 62; Summers v. Donnell, 7 Heisk. (Tenn.) 565; Harrison's Ex'rs v. Payno. 32
Cratt. (Va.) 387; Jarrell v. French 43 W. Va. 456, 27 S. E. 263. For statutes authorizing a gross sum to be given, see 1 Stimson's Am.
St. Law, Sec. 3276(5)-(7); 2 Scrib-ner, Dower (2d Ed.) 654.
96. 2 Scribner, Dower (2d Ed.) 653 et seq.; 2 Dembitz, Land Titles, 834, and note. See Johnson v. Moon, 82 Ga. ?47, 10 S. E. 193; Merritt v. Merritt, 97 111. 243; Alexander's Ex'x v. Bradley, 3 Bush (Ky.) 667; Simonton v. Gray, 34 Me. 50; Abercromble v. Riddle, 3 Md. Ch. 320; Easta-brook v. Hapgood, 10 Mass. 313; Nye v. Patterson, 35 Mich. 413; Graves v. Cochran, 68 Mo. 74; Mulford v. Hiers, 13 N. J. Eq. 13. The Maryland statute fixes the amount to be paid as not less that one-tenth nor more than one-seventh of the proceeds of sale. Stein v. Stein, 80 Md. 306. The South Carolina rule is to give one-sixth in all but exceptional cases. Wright v. Jennings, 1 Bailey, Law (S. C.) 277.
97. See 1 Stimson's Am. St. Law, Sec. 3276(3). Johnson v. John- Valuation for the purpose of assignment. The amount of property to be assigned to the widow is determined by its productive value, she being entitled to such property as will produce one-third of the rents and profits which all the husband's freehold property would produce.98
As against the heir or devise, the valuation of the husband's property, for the purpose of determining the amount of that to he assigned as dower, is to be made as of the time of the assignment, without regard to whether the property has increased or decreased in value since the husband's death, either from natural causes, from changes in the general values of lands in the neighborhood, from improvements made by the heir or devisee, or even from his neglect or waste of the property; the widow thus sharing in the benefit of any increase in value, or in the loss from any de-crease in value, which may occur between the husband's death and the assignment.99 As against the alienee of the husband, also, the valuation of the land is to be as of the time of the assignment of dower, so far as concerns changes arising from natural or extraneous son, 91 Ark. 292, 132 S. W. 656; Hollis v. Watkins, 189 Ala. 292 66 So. 29.