Stedman v. Fortune

Peters, J. By the common law, a widow is entitled to dower in all the land, whereof her husband was seised in fee-simple or fee-tail, at any time during the coverture, and of which any issue she might have had, might, by possibility, be heir ; but she had no right of entry until her dower was assigned. Litt. sect. 36. 53. 2 Bla. Comm. 134. 139. Bac. Abr. tit. Dower. B. The same principle has been adopted in Massachusetts and in New-York. Windham v. Portland, 4 Mass. Rep. 384. Sheafe v. O’Neil, 9 Mass. Rep. 13. Jackson d. Clowe v. Vanderheyden, 17 Johns. Rep. 167. But, by our statute, “ every married woman living with her husband, at the time of his death, or absent from him by his consent, or by his default, or by inevitable accident, or in case of divorce when she is the innocent party, and no part of the estate of her husband was assigned to her for her support, shall have right of dower in one third part of the real estate of which her husband died possessed, in his own right, to be to her during her natural life." [465] Stat. 180. tit. Dower. The practical and judicial construction of this statute, sanctioned by at least one decision of this Court, (a) has always been, that immediately upon the death of her husband, the widow has right to the possession of one third of the real estate, whereof he died possessed, in her own right, in common with his heirs, to whom she is in no sense a tenant as at common law; (b) and that her right of entry does not depend upon the assignment of dower, which is a mere severance of the common estate. As the charge of the judge was incorrect on this point, I give no opinion on the other, and advise a new trial. Hosmer, Ch. J. and Brainard and Bristol, Js., were of the same opinion. New trial to be granted, Footnotes [(a)] Crocker v. Fox & ux. 1 Root 323. [(b)] Colder & ux. v. Bull 2 Root 50. 2 Bla. Comm. 139.