Meserve v. Meserve

Woods, J. It may not be necessary, in this case, to determine whether the defendant was dowable or not of the land in controversy. If the question had fairly arisen between the parties having a right to litigate it; for example, had the defendant here preferred her claim of dower, and the heirs, residuary legatee, or others having an interest adverse to her claim, resisted it, she must, in order to sustain it, have shown the land to have answered the description given in the statute, of lands subject to dower. That the land was in a state of cultivation, or used and kept as a wood or timber lot, and occupied in connection with some farm or tenement owned by the husband during the coverture. Rev. Stat., ch. 165, § 4; N. H. Laws, ed. 1830, 540; Johnson v. Perley, 2 N. H. Rep. 56; White v. Wills, 7 Pick. 143. And it may be considered at least as quite doubtful whether the premises could properly be comprehended in either of those descriptive clauses of the statute. The deceased husband did, in his lifetime, take wood and timber from the land, but did not use it as a wood or timber lot, in connection with any farm or tenement owned by him, if by the word “ owned” in the statute is meant that kind of estate which carries dower. Nor was any attempt apparently made during his seizin to cultivate or reclaim any part of it, or to use it as cultivated land is used. The occasional feeding of the cattle upon it, under the circumstances, hardly amounted to cultivation, in the most extended and liberal sense of which the word is susceptible. But the question does not, in the view we take of the case, properly arise. Dower has in fact been assigned to the defendant by a party equally competent to assign it, the [243] residuary legatee, namely, of the deceased husband. Such assignment, as against him and all claiming under him, has justly been held to be a foreclosure of all doubt as to the right of the widow to claim her dower. 23 Pick. 88. His acquiescence and assistance in the acts of the committee appointed by the court of probate, to assign and set off the dower, render it likewise unnecessary to decide upon the exceptions taken to the proceedings of this committee, and to the omissions of formalities in the probate court. For, at least, they are tantamount to a parol assignment of dower, which is, as regards the parties to the transaction and their privies, sufficient to all intents and purposes. Pinkham v. Gear, 3 N. H. Rep. 163. The defendant took possession under this assignment, and is entitled to possession, against all persons, so far as the facts in this case show, unless the creditors of the husband, or rather those claiming under an administration sale made for their benefit, might call in question the right to dower and the validity of the assignment. No such claim is here presented. The title of the plaintiff is under the administration sale, but the deed clearly contains an exception and reservation of the dower previously set off to the defendant. The words of reservation are, “ subject to the widow Mary Meserve’s dower, which has been set off,” and are as full and effectual as words well can be, to except from the conveyance the life estate of the defendant in that portion of the land which had been set off to her in dower. The plaintiff, on taking the conveyance, found the defendant in possession, having a right of possession, at least until disturbed by some one coming in under the creditors; her deed does not purport to give her a present right of possession of the locus in quo. Her action, therefore, being founded in possession, must fail. The verdict must, of course, be set aside, and Judgment for the defendant.