Weaver v. Sturtevant

Providence, Durfee, C. J. This is an appeal from a decree of tbe Court of Probate of'Middletown, appointing commissioners to set off dower, by metes and bounds, to Sarah A. Weaver, formerly Sarah A. Taggart, widow of the late William Taggart, in his estate. The decree was made in pursuance of an application of said Sarah, preferred to the Court of Probate under Gen. Stat. R. I. cap. 218, §§ 17, 18. The appellant contends that the decree ought to be set aside because, first, the court had no jurisdiction ; and, second, said Sarah, previous to her application, had given a lease for her life of all her right, title, and interest in the real estate in which the dower is demanded, to one William B. Howland. 1. It appears by the application and by the agreed statement under which the cause is heard, that, after the death of William Taggart, the estate passed through mesne conveyances from his heirs at law to the appellant, who now holds it. The appellant contends that under §§ 17 and 18, the court has no jurisdiction after the estate has been alienated. We do not so construe the sections. The language is broad and empowers the court to cause the dower of the widow to be set off to her “ in all or any of the lands, tenements, or hereditaments, lying within the State, which belonged to the deceased during his intermarriage, whereof such widow is dowable.” We find nothing to limit this language, which is certainly broad enough to give jurisdiction after as well as before alienation. The appellant also contends that the sections are unconstitutional, because by conferring jurisdiction on tbe Probate Courts they impair the right of trial by jury which is incident to an action of dower in the common law courts. We do not think this position is tenable. Any person who desires a jury trial can have it in this court by seasonably taking his appeal. This satisfies the requirement of the Constitution. Beers v. Beers, 4 Conn. 535 ; Stewart v. Mayor & City Council of Baltimore, 7 Md. 500 ; Morford v. Barnes, 8 Yerg. 444; Jones v. Robbins, 8 Gray, 329. 2. Dower, before it is set off, is not an estate, but only a right *540 resting in action 1 which cannot be assigned to a stranger to the estate, though it may be released to the terre-tenants. It does not appear that Howland is or ever has been other than a stranger. The lease, therefore, considered as a conveyance, was void. And in our opinion it cannot have any effect, even by way of es-toppel. It does not demise the estate nor any specific share or interest in it, but only the lessor’s “ right, title, interest, property, claim and -demand and right of dower.” The language is undoubtedly full enough to aliene her right of dower, if her right of dower were alienable. But at law it was not. It is admitted that she had no other right or interest. It follows, therefore, that she is not estopped from demanding it, for in demanding it, she is not demanding anything which her lease legally purports to demise. Croade v. Ingraham, 13 Pick. 33 ; 1 Bishop Law of Married Women, §§ 349-352, and cases cited. Samuel R. Honey, for plaintiff. William P. Sheffield, for defendant. There can be no doubt that the appeal to the term of this court next after the entry of the decree of the Court of Probate was right. Whether the other appeal is also right, it is not necessary to decide. Decree of the Court of Prolate affirmed with costs. Footnotes [1] And see Hoxie v. Ellis, 4 R. I. 123.