coverture.

It is not essential that his seisin should have continued till his death, although it is necessary that the marriage should have remained undissolved until that time.

To protect the rights of the wife in this respect, which have always been favored in law, it is wisely declared that no act, deed or conveyance, executed or performed by the husband without the assent of his wife, evidenced by her acknowledgment thereof, in the manner required by law to pass the estates of married women, and no judgment or decree confessed or recovered against him, and no laches, default, covin or crime of the husband shall prejudice the right of his wife to her dower or jointure, or preclude her from the recovery thereof, if otherwise entitled thereto. (1 R. S. 742, § 16.)

It would, however, be manifestly unjust in case of the alienation of the lands by the husband during the coverture to allow the wife, after the death of her husband, to recover dower upon the same principles as if her husband had died seised. The effect of such recovery would be to give her the avails of the labors of the alienee of her husband, who may have been a purchaser in good faith, and whose equity is stronger than her's. The policy of such claim would be of injurious tendency, as it would repress the spirit of improvement. Accordingly the ancient common law required the widow to take her dower in the land according to the value at the time of the alienation. (Humphrey v. Phinney, 2 John. 484.) The act of 1806, (vol. 4, 616,) the principles of which are incorporated into the revised statutes of 1830, (2 R. S. 490, § 13; 1 id. 743, § 25,) was not introductory of any new rule, but was declaratory only of the former law.

The same rule prevails whether the proceedings to obtain the assignment of dower be conducted in a court of equity or a court of law, or in the court of the surrogate of the county. Chancellor Kent examined the subject on several occasions, and the result of his inquiries was, that where the land was aliened by the husband, the widow's dower was to be taken according to the value of the land at the time of alienation. If the husband mortgages the land, but continues in possession, and afterwards releases the equity of redemption to the mortgagee, the time of the release of the equity of redemption is to be deemed the period of alienation, at which the value is to be taken, and which is to be estimated, without regard to the subsequent improvements made by the purchaser. (Hale v. James, 6 John. Ch. 258. Humphrey v. Phinney, supra. Dorchester

v. Coventry, 11 John. 510. Shaw v. White, 13 id. 179. Basset, 15 id. 21. Walker v. Schuyler, 10 Wend. 480. Cheever, 1 Cowen, 460.)

Dolf v.

Coates v.

The statute is sufficiently clear to exclude the widow from the permanent improvements placed on the land by the heirs or the alienee of the husband. (1 R. S. 743.) (1 R. S. 743.) But whether she is entitled to the enhanced value arising from the general advancement of the country, or from collateral circumstances, is not distinctly declared. Her claim to the benefit arising from such increased value, not occasioned by the labors or expenditures of the party, is as strong as the corresponding principle which would cast upon her the risk of a diminution of that value by any cause. But this question seems to have been settled otherwise by the courts in this state. (Dorchester v. Coventry, supra. Shaw v. White, supra.) They confine the widow strictly to the value at the time of alienation by the husband, thus giving the alienee the benefit resulting from the general increase of value of the land.

With regard to the rights of the widow on the death of her husband, the law provides that she may tarry in the chief house of her husband forty days after his death, whether her dower be sooner assigned to her or not, without being liable to any rent for the same, and in the mean time she is to have her reasonable sustenance out of the estate of her husband. (1 R. S. 742, § 17.) This is called the widow's quarantine, and was first given by magna charta. (Magna Charta, ch. 7.) It is necessarily implied that she is not liable to pay rent, but is to be supported gratuitously during that period.

Before the assignment of her dower the widow has a mere right, and she can convey no interest in the land until assignment. (Siglar v. Van Riper, 10 Wend. 414. Green v. Putnam, 1 Barb. 500.) The law casts the freehold on the heir upon the death of the ancestor, and it is his duty to make the assignment. The moment the widow is endowed her seisin relates back to the death of the husband, and is considered a continuance of his seisin, so that there never was any seisin in the heir. (Per Walworth, Ch. Dunham v. Osborn, 1 Paige, 636. Safford v. Safford, 7 id. 260.) Regularly, no person can assign dower who has not a freehold estate in the land. (1 Cruise's Dig. 190, Greenl. ed.) And the assignment by an infant is good, subject only to be corrected, if excessive, by a subsequent admeasurement. (Id.)

It has been doubted whether by the law prior to the revised stat

utes of 1830, there was any limitation to the action of dower, and whether the widow might not at any time, however remote, assert her right by an action. (Sayre v. Wisner, 8 Wend. 661.) But the existing law requires that she shall demand her dower within twenty years after the death of her husband; but if at the time of such death she be under the age of twenty-one years, or insane, or imprisoned on a criminal charge or conviction, the time during which such disability continues shall not form any part of the said term of twenty years. (1 R. S. 742, § 18. Sayre v. Wisner, Ward v. Kitts, 12 Wend. 139.)

supra.

The mode of assigning dower when the nature of the estate will admit of it, is by metes and bounds; but when no division can be made, the widow must be endowed in a special, certain manner. Of a mill, she cannot be endowed by metes and bounds, nor in common with the heir, but she may be endowed of the third toll dish, or of the entire mill for a certain time. (1 Cruise's Dig. Greenl. ed. 190. Coates v. Cheever, 1 Cowen, 476, per Savage, Ch. J. Co. Lit. 32 a.)

The remedies which the law gives to the widow for her dower are more comprehensive and efficacious than the old form of writ of dower unde nihil habet. Since the code abolishing all former remedies, and substituting a civil action in lieu thereof, and conferring upon the court jurisdiction as well in equity as at law, the widow can bring her action according to the nature of the case for equitable or legal relief. It was well settled under the former practice, that though the widow's remedy for dower was prima facie at law, yet when the title was admitted, but impediments were thrown in the way of her proceedings, a court of equity would sustain her action for dower. (Swaine v. Perine, 5 John. Ch. 482.) There were cases, indeed, where her remedy was confined to courts of equity. Thus though she was entitled to dower in an equity of redemption, she could not maintain ejectment for it against the mortgagee or his assigns in possession, if the mortgage be forfeited, but must resort to a court of equity. (Cooper v. Whitney, 3 Hill, 95.).

So also, when the premises were in the possession of a termor whose term had not expired, an action of dower at law could not be maintained, as it could only be brought against the owner of the freehold. But the remedy in equity was undoubted. (Badgley v. Bruce, 4 Paige, 98.)

Under the existing practice, the widow, whose dower has not been assigned to her within forty days after the decease of her husband, may apply by petition for the admeasurement of her dower, to the supreme court, or to the county court of the county in which the lands subject to dower lie; or to the surrogate of the said county; specifying therein the lands in which she claims dower. A copy of the petition must be served upon the owners who claim a freehold estate in the lands in which dower is claimed, whether they be the heirs of the husband, or otherwise, or upon their guardians, if the heirs or owners be minors. The statute points out the mode of seisin, and the proceedings to be taken, and they will be found described in the books treating of the practice of the respective courts. (See Willard's Eq. Jur. 693 et seq. Willard's Ex'rs, 464 et seq. Crary's Special Proceedings, 1.)

In an action to recover dower in lands of which the husband died seised the widow is entitled to damages for the withholding of her dower. (1 R. S. 742, § 19.) The rule of damages prescribed by the statute is one third part of the annual value of the mesne profits of the lands in which her dower is secured, to be estimated in a suit against the heirs of her husband, from the time of his death; and in suits against other persons from the time of her demanding her dower of such persons; and in all cases to be estimated to the time of the recovering judgment for such damages, but not to exceed six years in the whole in any one case. (1 R. S. 742, § 20.) Such damages shall not be estimated for the use of any permanent improvements made after the death of her husband, by his heirs or by any other person claiming title to such lands. (1 R. S. 743, § 21.)

In case the heir of the husband shall have aliened the lands, and the widow shall recover her dower therein, she is entitled to recover of such heir, her damages for withholding such dower from the time of the death of the husband to the time of the alienation by the heir, not exceeding six years in the whole. And the amount recovered from such heirs shall be deducted from the amount she would otherwise be entitled to recover from such grantee, and also any amount recovered as damages from such grantee shall be deducted from the sum she would otherwise be entitled to recover from such heir. (Id. § 22.)

SECTION IV.

Of the incidents of estates for life.

We shall now treat, in a separate section, of certain incidents of estates for life, the consideration of which we have, for the sake of brevity, postponed until this time. These are, for the most part, the same, whether the estate for life be conventional or created by the law.

(1.) An estate for life is subject to merge in the inheritance. Therefore, if the tenant for life surrender to him in reversion, or if the former acquires the absolute property, the life estate in either case becomes merged in the fee simple. (1 Inst. 338 b. 1 Cruise's Dig. 101, Greenl. ed.)

(2.) Tenant for life may make leases of a less estate than his own; or may assign his entire estate; nor does he forfeit his estate by leasing in fee. (Jackson v. Mancius, 2 Wend. 357. Grout v. Townsend, 2 Hill, 558.) At common law a tenant for life forfeited his estate when he conveyed a fee by feoffment with livery of seisin, or by a fine and recovery. But these conveyances are now abolished in this state, and by statute no person can convey a greater estate than he has, and a grant or conveyance of a greater estate operates only to pass all the estate which the grantor had in the lands, and which he could lawfully convey. (1 R. S. 739, §§ 143, 145.)

(3.) A tenant for life is entitled to estovers. This is the allowance for necessary wood for fuel, and for fencing and repairing buildings, where it can be done without injury to the inheritance, and where the tenant is not restrained by covenants. It is not absolutely necessary that the wood should be burned on the premises. (Gardiner v. Dering, 1 Paige, 573.) He has no right to cut down timber which serves for ornament or shelter, or which is not fit to be felled. For the purpose of fuel he is bound to take the dry, perishing or fallen wood. He must do as little injury to the inheritance as possible, consistent with his right of enjoyment. If, however, the premises demised be wild and uncultivated land, wholly covered with wood and timber, the lessee may fell part of the wood and timber, so as to fit the land for cultivation, without being liable to waste; but he cannot cut down all the wood and timber so as permanently to injure the inheritance. And to what extent the wood