§ 204. Widow's quarantine. A widow may remain in the chief house of her husband forty days after his death, whether her dower is sooner assigned to her or not, without being liable to any rent for the same; and in the meantime she may have her reasonable sustenance out of the estate of her husband. Formerly section 184, Real Property Law of 1896, chapter XLVI, General Laws:

§ 184. Widow's quarantine.— A widow may remain in the chief house of her husband forty days after his death, whether her dower is sooner assigned to her or not, without being liable to any rent for the same; and in the meantime she may have her reasonable sustenance out of the estate of her husband.54

Section 184 was formerly 1 Revised Statutes, 742, section 17:

17. A widow 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 meantime she shall have her reasonable sustenance out of the estate of her husband.55

History of this Enactment. This provision of the statute shows how dependent any consideration of the present, or actual, law is on the early history of New York. The substance of this section of the Real Property Law is at least as old as Magna Charta.56 Its re-enactment in New York was attributed by the New York revisers of 1813 to a colonial act of 1683.57 In point of fact this particular rule of law is in England 58 not only older than Magna Charta, but in New York it is older than the act of 1683.59 This portion of Magna Charta was expressly re-enacted by the first English Legislature of New York in 1683;60 but that act was disallowed. Yet, as dower was an incident of the socage tenure by which all the lands of New York were held,62 the veto of the act of 1683 was inconsequential. The widow in New York had her “quarantine at common law, as declared by Magna Charta; that statute, in com

54 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 55 Repealed, chap. 547, Laws of 1896.

56 Chap. VII, ed. of 1215; Coke's 2d Inst. 16.

57 Note, I R. L. 56.

58 Poll. & Mait. Hist. Eng. Law, 420. It corresponded to the "widow's month" in Germanic law. 59 It came in with the socage tenure in 1664, and was indirectly

recognized by the "Duke's Lawes ' of 1665, tit." Dowryes," I Col. Laws (ed. of 1894), p. 32.

60 Charter of Libertys, 2 R. L. Appendix II.

61 Doc. relating to Hist. of N. Y., IV, 263.

62 The socage tenure introduced all the common law relating to that tenure. There could not be one socage tenure in England and another in New York.

66

mon with all the great statutes of England declaratory of the common law, being simply received here as part of the common law. In 1787 this part of Magna Charta was revised with the other leading English statutes extending to New York, and reenacted by the Legislature of the State; the other English acts not so re-enacted being then all repealed.65 From time to time the act of 1787 was re-enacted, and finally crept into the Revised Statutes,67 and thence into this latest expression of the fundamental law of real property.68 Yet not one of these enactments was essential to a widow's quarantine. The common law would, probably, have given the widow the same right until it was formally abrogated by statute.69 Its formal and repeated re-enactment in statutes serves only to show the importance our law of family relations attaches to dower." The construction of the New York statute and Magna Charta are the same.70

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Construction of this Section. This section has no relation to a title by leases, or to personal property." It assures the widow of an asylum and reasonable sustenance,72 until her dower can be assigned, and meanwhile the heir cannot expel her from the freehold.73 After forty days he may expel her and put her to her remedy.74 If the husband's will devises to the widow specific property in lieu of dower "and all statutory allowances" and she takes under the will, it seems that she is deprived of her "quarantine." 75 Remedy for Interference with Widow's "Quarantine." By By the common law, if the wife was not permitted to enjoy her quarantine, she had the writ de quarentina habenda,76 now turned into a general action under the Code of Civil Procedure.77

63 Bogardus v. Trinity Church, 4 Paige, at p. 198.

64 42 J. & V. 4, § 1, act concerning dower.

65 Chap. 46, Laws of 1788; 2 J. & V. 282; Levy v. Levy, 6 Pet. 102,

110.

66 1 K. & R. 51; 1 R. L. 56.

67 I R. S. 742, § 17. As set out above.

es § 204, supra.

69 Park, Dower, 4; Bracton, f. 96. 70 Jackson v. O'Donaghy, 7 Johns. 247; Yates v. Paddock, 10 Wend. 528, 531.

71 Voelckner v. Hudson, I Sandf.

72 Johnson v. Corbett, II Paige, 265, 276; Bracton, chap. XXVI, f. 61.

73 Siglar v. Van Riper, 10 Wend. 414, 419; Peters v. Tallchief, 121 App. Div. 309, 310.

74 Jackson v. O'Donaghy, 7 Johns. 247; Underground Electric Rys. Co. v. Owsley, 169 Fed. 671.

75 Matter of Mersereau, 38 Misc. Rep. 208; Matter of Menschke, 61 id. 9.

76 Fitz Herbert, Natura Brevium,

161.

77 Code Civ. Proc., § 3333

§ 205. Widow may bequeath a crop. A widow may bequeath a crop in the ground of land held by her in dower.

Formerly section 185, Real Property Law of 1896, chapter XLVI, General Laws:

§ 185. Widow may bequeath a crop.- A woman may bequeath a crop in the ground of land held by her in dower.78

Formerly Revised Statutes, 743, section 25:

§ 25. A widow may bequeath the crop in the ground of the land holden by her in dower.79

"81

History of this Section. The question whether growing crops were real or personal property was one of difficulty in many cases.80 Tenants had by custom a right to "away-going crops," 81 and they generally passed to executors.82 Life tenants, from the earliest times, were entitled to emblements, or those growing crops which yield an annual profit to the husbandman,$3 and this right is recognized in this State as founded on the clearest equity.84

By the Statute of Merton widows might bequeath the corn growing on their dower lands, and this statute was received in the province of New York, and at the general-enactment of the English statutes extending to the province of New York the Statute of Merton was re-enacted in 1787, and thus passed into the Revised Statutes, and finally into this section of the present act.86 Dower in Crops Growing when Husband Died. The widow has also dower in crops sown at time of husband's death.87

78 Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, § 460.

79 Repealed, chap. 547, Laws of 1896. 80 Austin v. Sawyer, 9 Cow. 39; supra, p. 94

81 Wigglesworth Smith, Lead Cas. and notes.

V. Dallison, I

82 Smith, Real & Pers. Prop. 775. 83 Willard, Real Prop. 77.

84 Stewart v. Doughty, 9 Johns. 108, 112.

85 20 Hen. III, chap. 2.

86 2 J. & V. 97, § 14; 1 K. & R. 181; 1 R. L. 368; 1 R. S. 743, § 25; $205, Real Prop. Law.

87 Clark v. Battorf, I Thomp. & Cook, 58.

§ 206. Divorced woman may release dower. A woman who is divorced from her husband, whether such divorce be absolute or limited, or granted in his or her favor, by any court of competent jurisdiction, may release to him, by an instrument in writing, sufficient to pass title to real estate, her inchoate right of dower in any specific real property theretofore owned by him, or generally in all such real property, and such as he shall thereafter acquire.

Formerly section 186, Real Property Law of 1896, chapter XLVI, General Laws:

§ 186. Divorced woman may release dower. A woman who is divorced from her husband, whether such divorce be absolute or limited, or granted in his or her favor, by any court of competent jurisdiction, may release to him, by an instrument in writing, sufficient to pass title to real estate, her inchoate right of dower in any specific real property theretofore owned by him, or generally in all such real property, and such as he shall thereafter require.88

Formerly chapter 616, Laws of 1892:

AN ACT to enable and authorize a woman heretofore or hereafter divorced from her husband to convey and release her inchoate right of dower in lands to which her husband has title or may hereafter acquire title.

Approved by the Governor May 16, 1892. Passed three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. In all cases when a husband or wife has been heretofore or may hereafter become divorced the one from the other, whether said divorce be absolute or limited, or granted to either the husband or the wife under the laws of this state or any other state or country, the said wife against whom or in favor of whom said divorce has been or may be granted, is hereby authorized and empowered, upon receiving a consideration satisfactory to herself, to sell, convey and release by deed of conveyance or release duly signed, executed and acknowledged unto her said husband from whom she has been divorced as aforesaid, all her inchoate right of dower of, in and to all the real estate of which her husband was seised at the time of the granting of said divorce, and all her inchoate right of dower of, in and to any and all real estate that he has since that time acquired, and in which she would or might have a right of dower or inchoate right of dower, and upon the execution and delivery and recording of said conveyance or release, together with the filing or recording in the proper county, a certified copy of the judgment or decree granting said divorce, all the lands and real estate of which the said husband was seised at the

88 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460.

time of the granting of said divorce, or at any time subsequent, or lands which he may at any time acquire after the execution and recording of said conveyance or release as aforesaid, shall forever be released and discharged from any and all right of dower, or inchoate right of dower, claim or demand as wife or widow of said divorced husband.

§ 2. Chapter five hundred and two of the laws of eighteen hundred and ninety, entitled "An act to enable and authorize a woman heretofore divorced from her husband to convey and release her inchoate right of dower in lands to which her husband has title or may hereafter acquire title," is hereby repealed.

§ 3. This act shall take effect immediately.89

Comment. A woman absolutely divorced from her husband for fault of the husband, retains her dower rights; 90 so upon a divorce a mensa et thoro.91 If he obtains an absolute divorce she forfeits dower,92 and all provisions by way of jointure. But as a wife cannot release to her husband except in partition suits,94 a release of dower directly from a wife to a quondam, or divorced, husband, was viewed with suspicion until the question was set at rest by an act of the Legislature.95

That the law still looks with disfavor on agreements between husband and wife in respect of the release of her title of dower to him directly, has been before stated.96 This enabling section is an argument in favor of such invalidity.

89 Repealed, chap. 547, Laws of 1896.

90 § 1759, Code Civ. Proc., et supra, p. 716.

91 Supra, pp. 716, 744. 928196, Real Prop. Law. 93202, Real Prop. Law.

94 Supra, p. 738, note 45.

95 Chap. 502, Laws of 1890, amd. by chap. 616, Laws of 1892, supra; Savage v. Crill, 19 Hun, 4; affd., 80 N. Y. 630; Schlesinger v. Klinger, 112 App. Div. 653.

96 Supra, p. 737.