#59 after the husband's death, she shall enter on the lands. to be assigned her for dower, or commence proceedings to recover the same. It is likewise declared, that every jointure, devise, and pecuniary provision in lieu of dower, shall be forfeited by the woman for whose benefit the same shall be made, in the same cases in which she would forfeit her dower.b It was a principle of the common law, that if the husband, seised of an estate of inheritance, exchanged it for other lands, the wife should not have dower of both estates, but should be put to her election. This principle is also introduced into the New-York Revised Statutes; and the widow is required to evince her election to take dower out of the lands given in exchange, by the commencement of proceedings to recover it, within one year after her husband's death, or else she shall be bound to take her dower out of the lands received in exchange.d The usual way of barring dower, in this country, by the voluntary act of the wife, is not by fine, as in England, but by her joining with her husband in a deed of conveyance of the land, containing apt words of grant or release on her part, and acknowledging the same • Hawley v. James, 5 Paige Rep. 318. The Statute of Virginia, of 1727, gave the widow nine months; and the Statute of Ohio, of 1831, six months; and the Statute of Vermont, of 1799, sixty days, to make her election; and if she made none, she was held exclusively to her dower at common law. The Mass. Statutes, of 1835, give the widow six months to elect, but, like those of New-York, they assume that the substituted provision in lieu of dower is taken, unless waived within the time prescribed. The Revised Statutes of Illinois, edit. 1833, p. 624, declare, that any provision by will bars dower, unless it be otherwise expressed in the will, and unless the widow in six months renounces the provision. b New-York Revised Statutes, vol. i. 742, sec. 15. • Co. Litt. 31, b. d New-York Revised Statutes, vol. i. 740, sec. 3. How far a wife may be barred of her dower by a sale under a decree in partition, see infra, p. 365. *60 privately, apart from her husband, in the mode prescribed by the statute laws of the several states. This practice is probably coeval with the settlement of the country; and it has been supposed to have taken its rise in Massachusetts, from the colonial act of 1644. The wife must join with her husband in the deed, and there must be apt words of grant, showing an intention on her part to relinquish her dower. This is the English rule in respect to a fine; and the wife's dower is *barred by a fine, either wholly, or only pro tanto, according to the declared intent. It is almost a matter of course, in this country, for the wife to unite with her husband in all deeds and mortgages of his lands; and though the formality of her separate acknowledgment is generally required to render her act binding, yet, by the laws of New-York and Illinois, if she resides out of the state, the simple execution of the deed by her will be sufficient to bar her dower, as to the lands in the state so conveyed, equally as if she were a feme sole. *IV. The manner of assigning dower. #61 To give greater facility to the attainment of the right of dower, (and which Lord Coke informs us was one of the three principle favourites of the common law,) it was provided by magna charta, that the widow * 3 Mason's Rep. 351. e › Catlin v. Ware, 9 Mass. Rep. 218. Lufkin v. Curtis, 13 ibid. 223. Powell v. M. and B. Mann. Company, 3 Mason's Rep. 347. By the Mass. Revised Statutes, of 1835, the wife may bar her dower by joining with her husband in the conveyance of the estate, or by his joining with her in a subsequent release of it. No private examination seems to be requisite. • New-York Revised Statutes, vol. i. 758, sec. 11. Revised Laws of Illinois, 1833. In Georgia a conveyance by the husband alone during coverture, bars a wife's right of dower, except as to lands whereof he became possessed by his marriage with her. Hotchkiss, Code, &c., 429. So a conveyance of land by sale or execution in the lifetime of the execution, bars the right of dower. ld. & Co. Litt. 124, b. • C. 7. should give nothing for her dower, and that she should tarry in the chief house of her husband for forty days, (and which are called the widow's quarantine,) after the death of her husband, within which time her dower should be assigned her; and that, in the mean time, she should have reasonable estovers, or maintenance, out of the estate. The provision that the widow should pay nothing for dower, was made with the generous intention of taking away the uncourtly and oppressive claim of the feudal lord, for a fine, upon allowing the widow to be endowed. This declaration of magna charta is, probably, the law in all the United States. In New-York the provision is re-enacted, and with the addition that she shall not be liable for any rent during the forty days, though the allowance of maintenance necessarily implied that she was to live free of rent. The widow cannot enter for her dower until it be assigned her, nor can she alien it, so as to enable the grantee to sue for it in his own name. It is a mere chose or right in action, and cannot be sold on execution at law, though in NewYork it may be reached by process in chancery for the benefit of creditors. She has no estate in the lands until assignment; and after the expiration of her quarantine, the heir may put her out of possession, and drive her to her suit for her dower. She has no right to tarry in her husband's house beyond the forty days; and it is not until her dower *has been duly assigned, that the widow acquires a vested estate for life, which will enable her to sustain her eject *62 New-York Revised Statutes, vol. i. 742, sec. 17. It is also the law in Massachusetts, Revised Statutes, of 1835, part 2, tit. 1, c. 60. In the first act of the legislature of the province of New-York, under the Duke of York, in 1683, it was among other things declared, that the widow should have her dower, consisting of one-third part of all the lands of her husband during coverture, and that she might tarry in the chief house of her husband, forty days after his death, within which time her dower was to be assigned. New-York Revised Statutes, vol. ii. 214, sec. 39. ment. It was decided in New-Jersey, that though the widow could not enter upon the land until dower was assigned, yet, being in possession, she could not be ousted by the owner of the fee in ejectment, unless her dower was assigned her. This decision is against the decided weight of English and American authority, but it was correctly decided, according to the very reasonable statute law of New-Jersey, which gives to the widow the right to hold and enjoy the mansion house, and the messuage and plantation thereto belonging, free of rent, until dower be assigned; and she has, therefore, a freehold for life, unless sooner defeated by the act of the heir. There is the same reasonable statute provision in Kentucky, Indiana, Illinois, Alabama, Mississippi, and Virginia; the rule in Connecticut and Missouri is the same, and upon the death of her husband, the widow is by law deemed in possession as a tenant in common with the heirs, to the extent of her right of dower; and her right of entry does not depend upon the assignment of dower, which is a mere severance of the common estate. Though in point of tenure she holds of the heir or reversioner, yet the widow claims paramount to the heir. Her estate is a continuation of that of her hus * Litt. sec. 43. Co. Litt. 32, b. 37, a. Doe v. Nutt, 2 Carr. & Payne, 430. Jackson v. O'Donaghy, 7 Johns. Rep. 247. Jackson v. Aspell, 20 ibid. 411. Jackson v. Vanderheyden, 17 ibid. 167. Chapman v. Armstead, 4 Munf. 382. Moore v. Gilliam, 5 ibid. 346. Johnson v. Morse, 2 N. H. Rep. 49. Sheaffer v. O'Neil, 9 Mass. Rep. 13. Siglar v. Van Riper, 10 Wendell, 414. M'Cully v. Smith, 2 Bailey's S. C. Rep. 103. Den v. Dodd, 1 Halsted, 367. 3 Halsted, 129. * Stedman v. Fortune, 5 Conn. Rep. 462. Griffith's Reg. tit. Kentucky. Taylor v. M'Crackin, 5 Blackf. Ind. Rep. 261. Revised Laws of Illinois, edit. 1833, and of Indiana, 1838, p. 239. Code of Virginia, c. 107, sec. 1, 2, p. 403. Alabama Dig. 258. 1 Revised Rep. 163. In Tennessee, by statute, the widow is entitled to a support for herself and her family, for one year, out of the assets. band, and upon assignment she is in by relation from her husband's death." In North Carolina, the law provides for the widow's support for one year, and it is suggested that the time of her quarantine may be thereby enlarged. But though she be an occupant, the legal title before the assignment of dower is exclusively in the heirs, and they are occupants also.b *63 *The assignment of dower may be made in pais by parol, by the party who hath the freehold ; but if the dower be not assigned within the forty days, by the heir or devisee, or other persons seised of the lands subject to dower, the widow has her action at law by writ of dower, unde nihil habet, or by writ of right of dower against the tenant of the freehold. The former is to be preferred, because the widow, in that case, recovers damages for non-assignment of her dower, which she would not in a writ of right; and the damages by the statute of Merton were one-third of the annual profits of the estate from the death of the husband. The writ lies, in every case, excepting only where the widow has received part of her dower of the same person who is sued, and out of lands in the same town. The writ of right of dower is of rare occurrence, if not entirely unknown in this country; and the learned author of the Treatise on the Pleadings and Practice in Real Actions, says, that he had never known any such action in * Norwood v. Marrow, 3 Battle's N. C. Rep. 448. b Branson v. Yancy, 1 Bad. & Dev. Eq. Cas. 77. If it be the case, that in North Carolina, the quarantine is enlarged for a year, it is a revival of the ancient law of England; and this enlarged quarantine, Lord Coke says, was certainly the law of England before the conquest. Co. Litt. 32, b. In Ohio, the widow is to remain in the mansion house of her husband, free of charge, for one year after his death, if her dower be not sooner assigned her. Statutes of Ohio, 1824. c Co. Litt. 32, b. 2 Inst. 262. d P. 307. The Mass. Revised Statutes, of 1835, authorize the judge of probate of the county where the lands lie, to assign dower, if the husband |