the adulterer. (Cogswell v. Tibbetts, 3 N. II. R. 41.) And, as was before shown, in New York and Massachusetts, elopement with an adulterer is not a bar 'to dower, unless followed by a divorce. (Reynolds v. Reynolds, 24 Wend. R. 193. Lakin v. Lakin, 2 Allen's R. 45.) The rule is the same in Rhode Island. (Bryan v. Batcheller, 6 R. I. R. 543.) It is nowhere held that mere separation, however unjustifiable, without adultery, will prevent dower; but, on the contrary, it has been expressly held that it will not have that effect. (Thayer v. Thayer, 14 Vt. R. 107.) In the State of Alabama, dower has been refused where both parties had been guilty of adultery, but no divorce had taken place. (Ford v. Ford, 4 Ala. R. 142.)

§ 415. When the husband and wife enter into a post-nuptial agreement, in view of a voluntary separation, whereby, for a consideration which, in the light of all the circumstances of the parties at the time the contract is made, is fair, reasonable and just, the wife relinquishes all claim to dower in her husband's estate, and the same is fully executed on the part of the husband, it has been held that the court will uphold and enforce the contract in equity, and bar the wife's dower. (Miller v. Miller, 16 Ohio St. R. 527.) But an agreement not under seal between the husband and wife to live separate and apart, and that neither shall claim any interest in the other's property, is not a bar to the wife's dower. (Walsh v. Kelley, 34 Penn. R. 84.) And an arrangement by which the husband and wife separate and live apart, and the husband conveys to the wife a separate estate, does not bar her claim to dower. (Watkins v. Watkins, 7 Yerg. R. 283.) When the widow knowingly permits the purchaser to part with his money for real estate under the assurance that the land is free from her claim of dower therein, and she accepts and enjoys the use of the whole purchase-money, as a bequest under the will of her husband, such acts on her part constitute an estoppel in pais, and she will not be permitted to set up a claim to dower in the premises. (Wood v. Seely, 32 N. Y. R. 105. But vide Lawrence v. Brown, 5 ib. 394. Heth v. Cocke, 1 Rand. R. 344.) The heirs of a grantor cannot set up against a claim of dower by his widow, their liability to the grantee upon a covenant of warranty in a deed of the land in which the dower is sought. (Hill v. Golden, 16 B. Mon. R. 551.) And the plea that the defendant had a large claim against the husband, who owned a large personal estate at the time

of his death, which the widow had converted to her own use, is not sufficient to bar the widow's dower. (Kennedy v. McAliley, 9 Rich. Law R. 395.) Neither is it a defense to the widow's claim for dower that the purchaser bought without any notice of such claim, and paid a full consideration for the property. (Campbell v. Murphy, 2 Jones' Eq. R. 357.)

Dower is connected with and inheres in the title, of the heirs, and that which bars the right of the heirs bars the widow's right to dower. Where the land of the deceased husband was sold under a void judgment, and the possession voluntarily relinquished by the widow, who failed to assert her right to dower by suit for twenty years, it was held that she was barred of her right. (Carmichael v. Carmichael, 5 Humph. R. 96.) A similar rule prevails in the State of New York. (Sayre v. Wisner, 8 Wend. R. 661.)

CHAPTER XXIX.

ASSIGNMENT OF DOWER-THE WIDOW'S INTEREST IN THE ESTATE BEFORE ASSIGNMENT-PRINCIPLES AND MODE OF ADMEASUREMENT AND ITS EFFECT THE METHOD OF OBTAINING THE LAND ASSIGNED-THE WIDOW'S ESTATE ACQUIRED BY THE ASSIGNMENT.

§ 416. UPON the death of the husband, the right to dower which the wife acquired by her marriage becomes consummate. But, unless the precise portion of land which she is to have is particularly specified as in dower, "ad ostium ecclesiæ," and "ex assensu patris," she is not entitled to enter upon her third or other part of the estate until her dower has been duly assigned to her by the heir or other competent authority. This is required, it is said, not only for notoriety to the public, or to the owner of the lands, to enable them to implead the tenant, but also to entitle the lord of the fee to demand the heirs' services in respect of the estate so held. This consideration, however, is of no moment at the present day. The widow is entitled to be endowed immediately after her husband's death; and, strictly speaking, her dower ought to be assigned to her within forty days after the happening of that event. In the mean time she is entitled, at common law, to remain in her

husband's dwelling-house, of which she is dowable, for the space of forty days, and to be supported de bonis viri. This right of residence is called the widow's quarantine. But if she marry during these days, or depart from her husband's house, her right to quarantine determines.

In the State of Maine, the widow, though entitled to dower, has no claim to occupy any part of the estate until her dower has been assigned (Bolster v. Cushman, 34 Maine R. 428); while in New York it is provided by statute that a widow may tarry in the chief house of her husband forty days after his death, whether her dower be sooner assigned to her or not, without being liable to. any rent for the same, and in the mean time she shall have her reasonable sustenance out of the estate of her husband. (1 P. S. part 2, ch. 1, tit. 3, § 17. 1 Stat. at Large, 693.) And unless her dower is assigned to her within the forty days, she may take measures to have her dower admeasured. (2 R. S. part 3, ch. 8, tit. 7, § 1. 2 Stat. at Large, 510. Ward v. Kilts, 12 Wend. R. 137.) The widow, after her quarantine of forty days has expired, has no right to the possession of the premises of which her husband died seised, and no right to enter thereon for her dower before it has been assigned to her. (Corery v. The People, 45 Barb. R. 262.) The widow's quarantine, which was a provision originally of magna charta of England, is recognized in most of the United States, and it is certainly a very proper and humane provision. (Vide Bank of U. S. v. Dunseth, 10 Ohio R. 18. Barnet v. Barnet, 15 Serg. & Rawle's R. 71. McCully v. Smith, 2 Bailey's R. 103.)

In pleading quarantine, the widow must show with certainty the period when her husband died and the time of the forty days after. (Kettillsby v. Kettillsby, Dyer's R. 76.)

§ 417. It may be proper, though perhaps unnecessary, to remark that the incipient or inchoate right of dower becomes consummated and perfected only upon the natural death of the husband. It was anciently contended that the civil death of the husband would entitle the wife to her dower, and that upon the happening of that event, she could at once proceed to have her dower admeasured. Lord Eldon said: "In the case of abjuration, and in those other cases which amount to a civil death, I think that I understand the situation in which the wife was placed. The husband being civilly dead, the wife was entitled to dower of his land

in the same manner as if he were actually dead." (Marsh v. Hutchinson, 2 Bos. & Pull. R. 226-231.) And this position was supported by the authority of Bracton and Fleta, in whose books the wife seems to have been considered as equally entitled to dower in the case of a civil as of a natural death. The same doctrine was intimated in one case in the State of South Carolina, where the court held that if the husband be banished, he "is considered as civiliter mortuus, and such rights as would have survived to him on the death of his wife are extinct, and gone with him." (Wright v. Wright, 2 Dessau. R. 242, 244.) But it is usually held, in the absence of any statutory provision, that nothing short of the natural death of the husband will entitle the wife to have her dower set off to her. (Vide Frazer v. Fletcher, 17 Ohio R. 260. Wooldridge v. Lucas, 7 B. Mon. R. 49.)

In several of the states, however, the wife is entitled by statute, for certain causes, to demand her dower in the life-time of her husband. Thus, in the State of Maryland, if the husband is guilty of polygamy, "his first wife shall, on his conviction, be forthwith endowed of one-third part of his real estate, which she shall hold as tenant in dower, the assignment of which shall be made as prescribed by law in other cases of dower, and she shall have the like remedy for the recovery thereof; and she shall also, on his conviction, be forthwith entitled to one-third part of his personal estate, in the same manner as if such husband had died intestate and she had survived him, which third part shall be divided and allotted to her in the same manner as distribution is made of the personal estate of intestates." (1 Md. Code, p. 207, § 11.) In the State of Michigan, upon the conviction of the husband for a felony, whereby he is sentenced to imprisonment for the term of his natural life, his wife is entitled to dower in the same manner as if he was actually dead. (2 Comp. Laws, p. 957, § 24.) And the wife is also entitled to her dower in that state when a divorce is decreed by reason of the adultery of the husband. (Ib.)

In the State of Wisconsin, when the husband is sentenced to imprisonment for a term of three years or more, or when the wife is divorced from her husband on account of his adultery, she is at once entitled to her dower, the same as though her husband was dead. (R. S. 1858, p. 626, § 25.) And the law is the same in Minnesota. (R. S. 1859, p. 466, § 24.) And the same in the State of Oregon. (Gen. Stat. 1864, ch. 5. § 495.)

In the State of Massachusetts, when a divorce is granted by reason of the adultery of her husband, the wife is at once dowable in his lands as if he was dead. (Gen. Stat. 1860, p. 535, § 38. Vide Davol v. Howland, 14 Mass. R. 219.) And in Maine the wife is dowable when divorced from her husband for his fault. (R. S. 1840-41, p. 608, § 10. Young v. Gregory, 46 Maine R. 475. Harding v. Alden, 9 Greenl. R. 140.)

418. The right of dower becomes consummate upon the death of the husband or other event referred to, but the widow cannot enter for her dower until it is assigned-until assignment she has no estate in the land, for the law casts the freehold on the heir immediately upon the death of the ancestor. Before the dower is assigned, the widow's right is a mere chose in action or claim, which she cannot assign or convey, though she may release it. (Croade v. Ingraham, 13 Pick. R. 33. Lawrence v. Miller, 2 N. Y. R. 245. Stewart v. McMartin, 6 Barb. R. 438. Green v. Putnam, 1 ib. 500. Scott v. Howard, 3 ib. 319. Siglar v. Van Riper, 10 Wend. R. 414.) This is the doctrine in New York, and ⚫ the same rule is recognized in the State of Illinois, where it has been expressly held, that until assignment the right of dower is inchoate, and is not the subject-matter of sale or transfer; the only use the widow can make of her dower interest, is to release it to the owner of the fee, until it has been set apart to her. It was further held that until dower has been assigned, the doweress does not acquire a right of entry; and this is the doctrine of the common law. (Hoots v. Graham, 23 Ill. R. 81. Blair v. Harrison, 11 ib. 384.) So also a similar doctrine prevails in the State of Kentucky, where it is held that until the widow's dower is assigned, she has only the right of quarantine, and no such interest in the land of her deceased husband as may be sold on execution, or enable her to make a lease or bring ejectment. (Shield v. Batts, 5 J. J. Marsh. R. 13.) And the doctrine is general that the widow's dower cannot be sold on execution against her until it has been assigned; and the widow cannot release it even to a stranger. But after it is assigned, then, of course, it becomes the subject-matter of sale and transfer. (Gooch v. Atkins, 14 Mass. R. 378. Nason v. Allen, 5 Greenl. R. 479. Johnson v. Shields, 32 Maine R. 424. Summers v. Bubb, 13 Ill. R. 483.) Before the dower is assigned, however, it would seem that the widow can make a contract concerning it, which a court of equity will enforce. (Pottery. Everett,