Buffinton v. Fall River National Bank

Wells, J. The demandant is entitled to recover her dower, unless barred thereof in the manner set up by the plea. Gen. Sts. c. 103, § 57. By Gen. Sts. c. 92, § 24, and St. 1861, c. 164, the widow of a deceased testator may waive the provisions made for her in the will, and be entitled to such portion of the real and personal estate as she would have been entitled to if her husband had died intestate. “ If she makes no such waiver, she shall not be endowed of his lands, unless it plainly appears by the will to have been the intention of the testator that she should have such provisions in addition to her dower.” In this case there has been no such waiver; and it is not contended that the provisions of the will were intended to be in addition to dower; nor that the widow is entitled to dower from any estate of which the testator died seised and possessed. The demandant contends that this land, having been aliened [248] in the lifetime of the testator, is no part of “ his lands,” and therefore not within the provisions of the statute above quoted. But the claim of dower out of lands aliened, without release by the "wife, stands upon the same right as that of dower in lands remaining as part of the estate devised. It may be equally prejudicial to the estate, tending to the exhaustion of the general assets by giving rise to claims upon covenants in the deeds. of conveyance, or upon scire facias to revive in part the judgment, for satisfaction of which the alienation took place. Gen. Sts. c. 103, §§ 22, 23. The same reason exists for applying the bar in one case as in the other. There is nothing in the phraseology of the statute to limit its application to lands held at the decease of the testator. The expressions “ endowed of his lands,” and “ dower in the lands of her husband,” (Rev. Sts. c. 60, §§ 1, 11; Gen. Sts. c. 90, § 1,) when used affirmatively, embrace, without question, dower in all lands of which the husband is seised at any time during coverture. It can have no more limited meaning when used negatively in defining the bar in Gen. Sts. c. 92, § 24. There must accordingly be Judgment for the tenant.