Houston v. . Smith

Ashe, J. The only point presented by the record for our consideration is — was there error in the refusal of His Honor to receive the evidence offered by the plaintiff in relation to the alleged release from rent, and to the agreement on the part of Nancy Whaley that John E. Smith might occupy the land during her life without charge. By the act of 1868-’69, every married woman, upon the death of her husband iutestate, or in case she shall dissent from his will, shall be entitled to an estate for her life in one-third in value of all the lands, tenements and hereditaments, whereof her husband was seized and possessed at any time during the cover-ture, &c. Of course it must mean an estate of inheritance. The word “seizin” has a technical meaning in this connection. It is either a seizin in deed or a seizin in law: the former is, where there .is an actual possession of a freehold estate,- the latter, where there is a right to an immediate possession or enjoyment of a freehold estate. Seizin only tapplies to freehold estates. A seizin in law of the husband is as effectual as a seizin in deed, in order to render the wifedowable, but the husband must have the one seizin or the other of an estate of inheritance, to give to his widow a right to dower. There is no such thing as a seizin of a remainder after a freehold estate, because the remainderman has no right to the possession or enjoyment of the land until the determination of the particular estate, and, *314 therefore, a widow is not dowable of such a remainder; but if the particular estate is a chattel, as an estate for years, then the possession of the tenant is the possession of the remainderman, and, as, in that case, the only freehold interest is in the remain-derman, he is said to be seized of the remainder, and his wife may be endowed of his lands so holden. In 1 Scribner on' Dower, page 217, it is said: “ To give a right of dower, the estate of the husband must confer a right to the immediate freehold. This is an essential requisite at the common law. Dower is not allowed in estates in reversion or remainder expectant upon an estate of freehold; and hence, if the estate of the husband be subject to an outstanding freehold estate, which remains undetermined during the coverture, no right of dower attaches.” What was the nature of the evidence offered by the plaintiff is not made to appear, but as no deed was offered to be introduced, we must assume that the evidence only had relation to a parol agreement, and in that case the estate of Nancy Whaley, being a freehold, could only be passed by a deed — properly a deed of surrender. If the plaintiff was relying upon a deed, and such was the evidence she proposed to offer, to make her exception available, she should have offered to introduce the deed, duly registered, otherwise it would not have been admissible in evidence. So far as appears from the record, the evidence offered was a mere parol agreement by Nancy Whaley with Smith for him to occupy the land without rent, which made him a tenant at will, leaving the freehold in Nancy and the remainder in Smith, in whom there was no seizin, and not being seized of the land during his life, his wife acquired no right of dower therein. The judgment of the superior court is affirmed. No error. Affirmed.