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recovery, in the absence of a statutory provision to the contrary; 812 but it does not prevent recovery of the rents and profits in equity, provided suit for dower was brought during her life.813

Judgment or decree.

A judgment for the person demanding dower is either for dower alone, or for dower with damages.31 Upon a judg ment for the widow, a writ or order is issued directing the sheriff or commissioners to set out her dower, and without this the widow cannot, except by the intervention of a statute, enter on the land.315

Assignment of dower in accordance with the judgment or decree is generally by the sheriff or commissioners, the prac tice in this regard varying in the different states, but the action of such officials being usually subject to the approval of the court.818 Such assignment must be by metes and bounds, unless this is impracticable. 817

212 Atkins v. Yeomans, 6 Metc. (Mass.) 438; Rowe v. Johnson, 19 Me. 146; Turney v. Smith, 14 Ill. 242; Tuck v. Fitts, 18 N. H. 171; Roan v. Holmes, 32 Fla. 295, 21 L. R. A. 180. But her death does not have this effect if after judgment, though the case is appealed. Tibbetts v. Langley Mfg. Co., 12 S. C. 465.

318 Pollitt v. Kerr, 49 N. J. Eq. 66; Johnson v. Thomas, 2 Paige (N. Y.) 377; Steiger's Adm'r v. Hillen, 5 Gill & J. (Md.) 121. In Paul's Ex'rs v. Paul, 36 Pa. St. 270, it was in effect held that her representatives could recover rents and profits, though she did not actually sue for dower during her life, provided she demanded it. 3141 Washburn, Real Prop. 231; Waters v. Gooch, 6 J. J. Marsh. (Ky.) 586; Shirtz v. Shirtz, 5 Watts (Pa.) 255.

$15 Co. Litt. 34b; 2 Scribner, Dower (2d Ed.) 105, 176; Hildreth ▼. Thompson, 16 Mass. 191.

816 See 1 Stimson's Am. St. Law, § 3275; 2 Scribner, Dower, 141, 170; 7 Enc. Pl. & Pr. 170, 185, 206.

817 2 Scribner, Dower, 82 582; 1 Washburn, Real Prop. 235. See ante, note 284.

202. Dower after assignment.

The estate of dower after assignment is considered to be a continuation of the husband's estate, the widow's title or seisin relating back to the time of his death, and consequently the heir is not regarded as having ever been seised of that part of the land whereof the widow was endowed.818 The widow has an estate for life in the property assigned, with all the rights, and subject to the liabilities, of any other life tenant.8 819 She may accordingly convey or incumber her estate.320 She is bound to pay taxes,321 and to keep down the interest on incumbrances.322 She is likewise liable for the commission of waste.328 The widow is entitled to the crops

818 Litt. 387; Co. Litt. 239a; Park, Dower, 340; 1 Cruise, Dig. tit. 6, c. 3, § 21; 4 Kent, Comm. 62, 69; Powell v. Monson & Brimfield Mfg. Co., 3 Mason, 347, Fed. Cas. No. 11,356; Norwood v. Marrow, 20 N. C. 447; Lawrence v. Miller, 2 N. Y. 245, Finch's Cas. 653; Conant v. Little, 1 Pick. (Mass.) 189.

The effect of this principle in depriving the heir's widow of dower in land assigned to the ancestor's widow has been previously re ferred to. See § 186. It also had important effects at common law upon the descent of the land assigned to the widow. Park, Dower, 343. But though the widow was considered to be in by her husband of the lands assigned to her, she was regarded as holding in tenure of the heir. See Park, Dower, 340, 344.

819 2 Scribner, Dower (2d Ed.) 781 et seq.; Whyte v. Nashville, 2 Swan (Tenn.) 364; McMahon v. Gray,, 150 Mass. 289; Kunselman v. Stine, 183 Pa. St. 1; Peyton v. Jeffries, 50 Ill. 143.

820 Summers v. Babb, 13 Ill. 483; Kunselman v. Stine, 183 Pa. St. 1. See Lawrence v. Brown, 5 N. Y. 394; Serry v. Curry, 26 Neb. 353. 821 Stetson v. Day, 51 Me. 434; Durkee v. Felton, 44 Wis. 467; Austell v. Swann, 74 Ga. 278; Linden v. Graham, 34 Barb. (N. Y.) 316; Jones v. Hunt, 40 N. J. Eq. 660.

822 1 Washburn, Real Prop. 258; Hodges v. Phinney, 106 Mich. 537. 828 Calvert v. Rice, 91 Ky. 533, 34 Am. St. Rep. 240; Cook v. Cook, 11 Gray (Mass.) 123; Johnson v. Perley, 2 N. H. 56, 9 Am. Dec. 35; Owen v. Hyde, 6 Yerg. (Tenn.) 334, 27 Am. Dec. 467; Crouch v. Pur. year, 1 Rand. (Va.) 258, 10 Am. Dec. 528. For statutes to this ef fect, see 1 Stimson's Am. St. Law, § 3231.

In some states, the commission of waste by her is by statute made

growing on the land assigned to her at the time of the assign ment,3 324 and her personal representatives are, by force of the Statute of Merton,325 or similar state statutes,326 entitled to those growing at the time of her death.

On the termination of her dower estate by her death, the person who has the reversion after the dower estate, whether he be the husband's heir or devisee, or a grantee of the land, is entitled to immediate possession.327

$203. Statutes altering or abolishing dower.

In a number of states, dower is abolished, and the widow is given certain rights in her husband's property in lieu thereof. Generally, she is given an absolute share in the husband's property, or in his real property, which she takes as heir, such share being sometimes made the same as that to be taken by each of the children.328 Sometimes the widow has, by statute, the right to elect between her common-law dower and the share given her by statute,329 and in some states she must elect between dower and her statutory homestead

ground for forfeiture of her dower estate, and in others for the recovery of damages only. See Sharswood & B. Lead. Cas. Real Prop. 407; 1 Stimson's Am. St. Law, § 3231 (B),(C).

324 2 Scribner, Dower (2d Ed.) 778; Ralston v. Ralston, 3 G. Greene (Iowa) 533; Parker v. Parker, 17 Pick. (Mass.) 236; Kain v. Fisher, 6 N. Y. 597; Vaughn v. Vaughn, 88 Tenn. 742.

825 20 Hen. III. c. 2 (A. D. 1237); Park, Dower, 355.

826 See 1 Stimson's Am. St. Law, § 3233; 2 Scribner, Dower, 780. But she has no right to the crops sown by her when her estate is terminated by her consent to a sale of the land free of dower. Talbot v. Hill, 68 Ill. 106.

827 2 Scribner, Dower, 785.

828 See 1 Sharswood & B. Lead. Cas. Real Prop. 299; 1 Stimson's Am. St. Law, §§ 3105(A), 3109, 3202 (B); Dembitz, Land Titles, 231, 825. See post, § 427.

329 See 1 Stimson's Am. St. Law, § 3264 (B),(C). For cases construing such provisions, see Sturgis v. Ewing, 18 Ill. 176; Brown v. Cantrell, 62 Ga. 257; Brawford v. Wolfe, 103 Mo. 391; Mathews v. Mathews, 141 Mass. 511; Glover v. Glover, 45 S. C. 51; Hunkins v. Hunkins, 65 N. H, 95.

right.880 In those states in which the community system prevails, dower is not recognized.831

CURTESY.

The estate by curtesy is that to which a surviving husband is entitled, for the period of his life, in all the lands and tenements of which the wife was seised during coverture in fee simple or fee tail, provided there was issue of the marriage born alive capable of inheritance.832

Curtesy resembles dower as regards the things in which it exists, and the quantum and nature of the estate or interest in the consort necessary to support it. It differs from dower primarily in that it is in favor of the husband, and not of the wife, that it is not restricted to one-third of the wife's real property, that it is contingent on the birth of issue, that, after birth of issue, it exists as an estate, and that it is perfected by the wife's death without assignment.

Curtesy is usually defeated by a conveyance by the wife before, but not after, marriage, unless she is, by the conveyance to her, given power to dispose of the property; by a contract by the husband releasing curtesy; by his joinder in a conveyance by her; or by a divorce; but not by the husband's adultery.

The husband has, even during coverture, after birth of issue, an estate by "curtesy initiate." Upon the death of the wife, the estate of curtesy becomes "consummate."

In some states, curtesy has been abolished by statute, and in others it has been modified.

380 See post, § 215.

881 See ante, § 166.

882 It is stated by Mr. Digby that the name probably took its origin in the word "curia," meaning court, perhaps referring to the neces sity that the husband do homage at the lord's court. See Digby, Hist. Real Prop. 173. But a different view is taken in Pollock & Maitland's History of the English Law (volume 2, p. 412 et seq.). where it is said that the name arises from the liberality (or curtesy) of the English law in giving such an estate, as distinguished from the law of Normandy.

$204. Necessity of marriage.

one,

As in the case of dower, the marriage must be a legal ,383 and, if it is absolutely null and void, as when one of the parties is an idiot, the estate does not arise.834 If, how ever, the marriage is voidable merely, and it is not avoided during the life of the wife, the husband is entitled to the estate.835

$ 205. Seisin of the wife.

At common law, as in the case of dower, seisin in the husband was necessary, so, in the case of curtesy, seisin in the wife was necessary, and this seisin was required to be seisin in deed, seisin in law not being sufficient, as in the case of dower.336 The requirement of actual seisin never applied in the case of things of an incorporeal character, which were incapable of seisin, and lay "in grant, and not in livery," nor did it apply when the circumstances were such that it was impossible for the husband to obtain seisin,388 or when it

838 2 Bl. Comm. 127.

884 Turner v. Meyers, 1 Hagg. Consist. 414.

8351 Washburn, Real Prop. 130, citing 2 Burn, Ecc. Law, 501; In re Murray Canal, 6 Ont. 685.

336 Co. Litt. 29a; 2 Bl. Comm. 127; 4 Kent, Comm. 29, 37; Stoddard v. Gibbs, 1 Sumn. 263, 6 Gray's Cas. 694, Fed. Cas. No. 13,468.

It has been held that the seisin of the wife's guardian will sup port curtesy (Powell v. Gossom, 18 B. Mon. [Ky.] 179), and that seisin in the husband's vendee will be effective for this purpose, though the husband was not seised (Vanarsdall v. Fauntleroy's Heirs, 7 B. Mon. [Ky.] 401). The possession of a coparcener or tenant in common of the wife has also been held to be sufficiently on her behalf to give her husband curtesy. 1 Washburn, Real Prop. 161; Wass v. Bucknam, 38 Me. 360, Finch's Cas. 640; Carr v. Givens, 9 Bush (Ky.) 679; Rhodes v. Robie, 9 App. D. C. 305.

887 Co. Litt. 29a; Shelley's Case, 1 Coke, 97; Davis v. Mason, 1 Pet. (U. S.) 503; Borland's Lessee v. Marshall, 2 Ohio St. 308, 6 Gray's Cas. 710.

838 Co. Litt. 29a; Eager v. Furnwall, 17 Ch. Div. 115; De Grey v. Richardson, 3 Atk. 469, 6 Gray's Cas. 687; Chew v. Commissioners of Southwark, 5 Rawle (Pa.) 160.

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