SECTION 190. Dower.

ARTICLE 6.
Dower.

191. Dower in lands exchanged.

192. Dower in lands mortgaged before marriage.

193. Dower in lands mortgaged for purchase-money.

194. Surplus proceeds of sale under purchase-money mortgages. 195. Widow of mortgagee not endowed.

196. When dower barred by misconduct.

197. When dower barred by jointure.

198. When dower barred by pecuniary provisions.

199. When widow to elect between jointure and dower.

200. Election between devise and dower.

201. When deemed to have elected.

202. When provision in lieu of dower is forfeited.

203. Effect of acts of husband.

204. Widow's quarantine.

205. Widow may bequeath a crop.

206. Divorced woman may release dower.

207. Married woman may release dower by attorney.

§ 190. Dower. A widow shall be endowed of the third part of all the lands whereof her husband was seized of an estate of inheritance, at any time during the marriage.

Formerly section 170, Real Property Law of 1896, chapter XLVI, General Laws:

§ 170. Dower.- A widow shall be endowed of the third part of all the lands whereof her husband was seized of an estate of inheritance, at any time during the marriage.26

Formerly Revised Statutes, 740, section 1:

§ 1. A widow shall be endowed of the third part of all the lands, whereof her husband was seised of an estate of inheritance, at any time during the marriage.27

Dower. Article 3 of the Real Property Law enumerates estates for life among the continuing estates in land, and regulates the creation of such estates when created by act of the parties. This article regulates both the inchoate interest technically termed "title" or "claim of dower," and the estate for life called "dower."

Dower is created by act of the law, and not by act of the parties.28 The ancient law of England made provision for the wife out of the husband's estate. At first it was confined to such lands as the husband had at the time of marriage.29 In the thirteenth century widows of tenants of socage lands claimed a moiety or one-half for dower.3 30 But by Littleton's time common-law dower was restricted to one-third of the tenements which were the husband's during the espousals, unless there was a special custom to the contrary,31

"Dower" under the Laws of the Province of New York.

Long before the English occupation of New York, the quantum of dower in lands held by the socage tenure was fixed at one-third 32 of all such lands as the husband had in his lifetime. When the socage tenure was made the tenure of New York,3 33 dower followed as an incident of the introduction of that tenure and the formal establishment of the common law by the Crown. The Duke's Laws of 1664-5,34 and an act of the first assembly of the province,35 enacted in 1683, both recognized dower as a part of the law of the province. So did an act of 1691.36 Both these acts were, however, disallowed by the Crown, but without affecting dower, as they were, in this respect, simply declaratory of the law otherwise existing and established in the province.

"Dower" under the State Government. The great English statutes affecting the law of dower,37 being enacted before the establishment of the common law in New York, were always recognized in the province, and they were adopted by the first Constitution of

28 McKeen v. Fish, 33 Hun, 28; Kursheedt v. U. D. S. Institution, 118 N. Y. 358, 364; Witthaus v. Schack, 105 id. at p. 336; Steele v. Ward, 30 Hun, 555, 557; Huff v. Wheeler, 27 Misc. Rep. 763, 766; Middleworth v. Ordway, 49 id. 76, 80; cf. Sommer v. Sommer, 87 App. Div. 434.

29 Glanvill, Lib. 6, c. 2.

30 2 Pol. & Mait. Hist. Eng. Law, 419, citing Bracton, f. 93; Note Book, pl. 758.

31 Litt. 37; 2 Black. Comm. 133, 134.

32 Bissett, Estates for Life, chap. 4; cf. 2 Pol. & Mait. Hist. Eng. Law,

the State.38 These statutes of England were formally re-enacted as statutes of the State, in the first revision of the State laws, made by Jones and Varick in 1787,39 and were again re-enacted in 1801,40 and in 1813.41 Thence in substance they passed into the Revised Statutes,42 and are now contained in this article of the Real Property Law.43 Thus, the real basis of the existing law of dower is the common law of England as modified by statutes, ancient and modern.

44

Section 190, Supra, and Allied Statutes. In the section of the Real Property Law now under consideration, the survival of the common law is detected in the word "endowed," which derives its whole technical force from that law. This section as part of a general statutory statement of the prevailing quantum of dower is older than Magna Charta, which was only repeated in the abovementioned colonial statutes of New York, in 1683 and 1691.45 The first formal re-enactment in New York of those English statutes, which prior to Independence extended to New York, fixed a widow's dower as the third part of all the Lands of her Husband which were his at any Time during the Coverture." 46 This language was made more precise by the section of the Revised Statutes, set out at the head of this section.47 The act of 1787 extended dower to all the lands in the State, whether such as were held by the socage tenure or made allodial; 48 and thenceforth there was no distinction between dower in lands in tenure and in lands made allodial until the time when all lands became allodial.49 The abolition of tenure did not affect estates in lands.

66

Definitions. Before the death of husband and the formal admeasurement of her dower, the wife's right is strictly a "title" or "claim" of dower, and is so always designated in the older books. A title or claim of dower is an inchoate right before the husband's death, when it becomes " consummate.' "Title" or "claim" is the common-law term to express an imperfect right, or

66

38 Const. of 1777, § 35.

39 2 J. & V. 4; 1 Greenl. 292.

401 K. & R. 51.

41 I R. L. 56.

421 R. S. 740, seq. 43 Art. 6, "Dower."

44 Ed. of 1215, chap. VII; Coke's 2d Inst. 16; cf. 2 Pol. & Mait. Hist. Eng. Law, 422.

45 Supra.

"50

power of entry on lands.51 After the husband's death, the widow's title or claim of entry is consummate. Since Tompkins v. Fonda

66

(4 Pai. 448), this "title" or "claim of dower" has been improperly designated a "chose in action" and held assignable although 'chose in action" is a term belonging to the law of persons, and not to the law of real property.52 Had it been designated a title " or "claim of dower," as at common law, it could not have been held assignable even in equity as it now is in New York.54 This mere "title" has even been held to be attachable before assignment,55 but not by the Court of Appeals, as no appeal was taken.

53

Statutory Definition of Dower. The Revised Statutes conformed the quantum of dower to that of Littleton 56 and was in that respect more precise than the statute it superseded.57 Dower extends only to such lands as the husband is seised of as an estate of inheritance during marriage.58

In order to entitle a widow to dower consummate three successive circumstances must concur: (1) Marriage; (2) seisin of, and (3) death of, the husband.

Marriage. After the Independence of the State, and prior to January 1, 1902, it was held by the State courts, as by the common law, that the marriage need not be a ceremonial marriage, and that a contract of marriage per verba de præsenti was as valid in New York as a marriage celebrated in facie ecclesia.59 But since Janu

51 Co. Litt. 345b; Wood's Institutes, 114, 2 Preston, Abstracts of Title, 283, 284; Smith, Real & Pers. Prop. 249; Haynes, Eq. 140.

52 2 Black. Comm. 396; Smith, Real & Pers. Prop. 249; Co. Litt. 345b; Goodeve, Real Prop. 15; sed cf. Sherman v. Hayward, 98 App. Div. 254.

531 R. S. 739, § 147; $ 225, Real Prop. Law; Towle v. Remsen, 70 N. Y. 303, 312, 313; Upington v. Corrigan, 151 id. 143, 148; Harper v. Clayton, 35 Law Rep. Annot. 211.

54 Tompkins v. Fonda, 4 Paige, 448; Payne v. Becker, 87 N. Y. 153; Pope v. Mead, 99 id. 298; Bostwick v. Beach, 103 id. 414; Mutual Life Ins. Co. v. Shipman, 119 id. 324; Muir v. Hodges, 116 Fed. 912; Sherman v. Hayward, 98 App. Div. 254. 55 Latourette v. Latourette, 52 App. Div. 192.

56 § 36.

57

2 J. & V. 4; 1 R. L. 56.

58 Poor v. Horton, 15 Barb. 485. The term "seisin" or "seised" has undergone great change in modern law. Matter of Dodge, 105 N. Y. 585, 591; Brown v. Brown, 117 App. Div. 199, 202; and see p. 117, supra. 59 Fenton v. Reed, 4 Johns, 52; Van Gilder v. Post, 2 Edw. Ch. 577; Hayes v. The People, 25 N. Y. 390, 395; Hynes v. McDermott, 82 id. 41, 46; s. c., 91 id. 451, 459; 2 Kent, Comm. 87; Matter of Wells, 123 App. Div. 78, 82; Dietrich v. Dietrich, 128 id. 564, 567; Matter of Terwilliger, 63 Misc. Rep. 479. It is denied that this was the law of New York prior to independence of the Crown. Lauderdale Peerages, 17 Abb. N. C. 439 and notes; s. c., L. R., 10 App. Cas. 692; cf. Rose v. Clark, 8 Paige, 574, 579.

ary 1, 1902, a contract of marriage per verba de præsenti vel futuro, must be evidenced by a writing, signed by the parties and at least two witnesses who shall subscribe the same, and such writing must state the residence of all and the place of marriage. It must be acknowledged before a judge of a court of record in order to entitle it to be recorded, and it must be recorded within six months after execution. The age of legal consent by both males and females is fixed at eighteen years."

G1

A ceremonial marriage may be solemnized by the persons specified in the Domestic Relations Law." 62 It would appear that a contract marriage before witnesses alone has now become a quasiceremonial marriage, as the duties of the spouses and witnesses are prescribed, and the contract must be acknowledged before a judge of a court of record. A license to marry is now a prerequisite of a ceremonial marriage, and probably of a "contract" marriage, but the statute does not contain words of nullity so as to bastardize issue for a failure to follow the statute. The statute, in fact, seems very loosely drawn and to leave many questions to the common law.63

Seisin. Seisin of the husband must be either in deed or in law.C4 It must be of a present freehold in possession as well as of an estate of inheritance. Therefore, when the husband has previously to his death, simply a reversion in fee, or a vested remainder expectant upon an estate for life, the widow is not endowed.66 But where a remainderman purchases the intervening life estate his wife is endowed.67

Go See "An act relating to the Domestic Relations," constituting chap. 14 of the Consolidated Laws; Petit v. Petit, 105 App. Div. 312, 314; Matter of Garner, 59 Misc. Rep. 116, 122; Kahn v. Kahn, 60 id. 334; s. c., 62 id. 550.

61 Chap. 14, Consolidated Laws, § 7; Conte v. Conte, 82 App. Div. 335; Wander v. Wander, III id. 189,

65 Safford v. Safford, 7 Johns. Ch. 259; Chamberlain v. Chamberlain, 43 N. Y. 424, 441; Phelps v. Phelps, 143 id. 197, 200; Nichols v. Park, 38 Misc. Rep. 176; revd., 78 App. Div. 95; Poillon v. Poillon, 90 id. 71, 75.

(6 Durando v. Durando, 23 N. Y. 331; House v. Jackson, 50 id. 161; Dunham v. Osborn, 1 Paige, 634; Green v. Putnam, 1 Barb. 5c0; Beekman v. Hudson, 20 We:.d. 53; Clark v. Clark, 84 Hun, 362; Stewart v. Crysler, 52 App. Div. 597; 4 Kent, Comm. 38; Jackson v. Walters, 85 App. Div. 470; Russill v. Ward, 119 id. 536, 540; and see above, p. 249; and compare Adair v. Lott, 3 Hill, 182.

67 House v. Jackson, 50 N. Y. 161.