Fisk v. Eastman

Haeris, J. The demandant, in this action, is entitled to judgment, unless the tenant’s claim to dower be well founded. The question to be settled is, whether David Eastman, the late husband of the tenant, was, during the cover-ture, so seized of the demanded premises^ that his widow is entitled to dower in the same. If he were so seized, the tenant has a legal right to hold the part assigned to her, by the court of probate, which she now claims. It is a well settled principle, that to entitle his widow to dower, the husband must have an actual corporeal sei-zin, or a right to such seizin, during the coverture. He must have the freehold and inheritance in him, simul et si-mel. A legal seizin of a vested remainder, is not sufficient for that purpose. 4 Mass. Rep. 566, Holbrook v, Finney. To determine the present case, it is only necessary to ascertain what was the seizin of David Eastman. The deed, from Benjamin Eastman to Moses Eastman, and the conveyance back to the said Benjamin and his wife, bearing even date, and being executed at the same time, must be construed together. They are to be considered parts of the same contract, as taking effect at the same moment, and constituting but one act. Moses was therefore seized but for an instant, taking a fee and giving back a freehold: He, by that transaction, became seized, to all legal intents and purposes, of a remainder only. It is well settled, that of such an instantaneous seizin in the husband, his wife shall not be endowed. Cro. J. 615, Amscotts v. Catherich; 2 Coke 77, Ld. Cromwell's case; Co. Litt. 31, b; 7 Mass. Rep. 253, Eldridge & a. v. Forrestal & ux. Moses had nothing more in the land than a remainder, which he could transfer to David Eastman. This is all [243] which he attempted to convey. The freehold continued in Anna Eastman during her life. As she survived the said David, it is clear that the tenant is not entitled to dower. The proceedings in the court of probate were without foundation, and are wholly void. The claim of the tenant therefore fails altogether, and there must be judgment for the demandant. Green, J., ofthe same opinion. Richardson, C. J. This is a very plain case. The husband of the tenant never had any thing in the land, except a vested remainder, and this is well settled not to be sufficient to entitle his widow to dower. 7 Mass. Rep. 253, Eldridge & a v. Forreslal & u. But dower has been assigned to the tenant by a decree of the judge of probate. . If the judge had jurisdiction, that decree is conclusive. But, unfortunately for the tenant, the judge of probate has no jurisdiction except where the husband dies seized and possessed. In this case the husband did not die seized, and the decree of the judge of probate is void. 3 N. H. Rep. 163, Pinkham v. Gear; 2 Mass. Rep. 124 ; 9 ditto 9, Sheafe v. O’Neil. Judgment for the demandant,