The widow in her action for dower can recover only upon the strength of her husband's title; and she must show a seisin in him during coverture, or she will fail in her suit. (Poor v. Horton, 15 Barb. R. 485. Vide Keator v. Dimmick, 46 ib. 158.) But the production of a deed conveying the legal title to the husband, proof that he was in possession of the land, and aliened it during the coverture, and that the defendant claims and holds it, are sufficient, in the absence of evidence, that he holds or claims under adverse title, or any fact inconsistent with the right of the widow to support her claim to dower against the husband's alienee. The widow is not bound to show a regular paper title. (Wall v. Hill, 7 Dana's R. 174. Griggs v. Smith, 7 Halst. R. 22.)

Under the Massachusetts statute in relation to the competency of a party to give testimony as to a matter in which the adverse party is dead, the demandant in a writ of dower is a competent witness to prove her husband's death. (Flynn v. Coffee, 12 Allen's R. 133.)

Parol evidence is admissible to prove that land granted to the husband of the demandant is the same land of which dower is demanded. (Keefer v. Young, 2 Har. & Johns. R. 53.) And in ejectment for dower, the admissions of the husband, while living, are competent in bar of the title of the widow. (Van Duyne v. Thayre, 14 Wend. R. 233.)

His possession of the land in which dower is claimed being proved, the husband's declarations are admissible to show its extent; and office copies of deeds have been held to be admissible for the same purpose, without proof of the execution of the orginals. (Forrest v. Trammell, 1 Bailey's R. 77.) And in South Carolina it has also been held that, to support her claim for dower, a widow is not obliged to produce the title-deeds to her husband (Smith v. Paysenger, 2 Rep. Con. Ct. 59); but it is sufficient for her to show that her husband had been in possession during coverture; this raises a presumption of title in him. (Forrest v. Trammell, supra.) And the same doctrine has been recognized in Maine. (Knight v. Mains, 3 Fairf. R. 41.)

§ 437. With respect to the estate which the widow acquires by the assignment of her dower, the doctrine of the common law is that, although the title of the widow is consummate upon the death of the husband, she is not seised, but the heir, and she consequently claims through his seisin. But by the assignment of the

dower, the seisin of the heir is defeated ab initio, and the doweress is in of the seisin of her husband, as of the time when that seisin was first acquired. Or, as Mr. Cruise collects the rule from the elementary writers, the widow acquires an estate of freehold by the assignment, without livery of seisin; because dower is due of common right, and the assignment is an act of equal notoriety. As soon as dower is assigned, the widow holds by the institution of the law, and is in of the estate of her husband; therefore the heir is not considered as having ever been seised of that part of his ancestor's estate whereof the widow is endowed. (1 Greenl. Cruise, 172.) This is the rule at common law, and the same doctrine prevails in most of the American States. Thus, in the State of New York, it has been expressly determined by the court of appeals, that by the assignment of dower the seisin of the heir is defeated ab initio, and the heir is not afterward considered as ever having been seised. And also that a widow, after assignment of her dower in lands of which her husband died seised, is in possession of the seisin of her husband. Her title relates back to the time of the marriage, if the husband was then seised, and, if not then seised, it relates back to the time when he became seised. (Lawrence v. Brown, 5 N. Y. R. 394. Lawrence v. Miller, 2 ib. 245. Fowler v. Griffin, 3 Sand. R. 385.)

In the State of Massachusetts the rule upon the subject is substantially the same as at common law, and it has been there held, that a widow, having a right of dower, cannot lawfully enter after her husband's death until an assignment be made by the heir, or the tenant of the freehold, or in a course of legal proceedings. When the assignment is made, she acquires no new freehold, but is in by her husband, her seisin being deemed in law to be a continuation of her husband's seisin. (Windham v. Portland, 4 Mass. R. 384, 387. Vide also Sheafe v. O'Neill, 9 ib. 13. Jones v. Brewer, 1 Pick. R. 314, 317. Conant v. Little, Ib. 189, 191.) And the same rule has been expressly recognized by the courts in others of the states. (Vide Weaver v. Crenshaw, 6 Ala. R. 873. Norwood v. Morrow, 3. Batt. R. 448. Ross v. Ross, 12 B. Mon. R. 437.) A right of way assigned to a dowager over land of her husband, with her dower, is appurtenant to her estate and expires with it. (Hoffman v. Savage, 15 Mass. R. 130.)

At common law, when the widow's dower is assigned, her title has such a relation to her husband's first and original seisin of the

estate, and the period of the marriage, as to defeat not only all charges and incumbrances which he alone made during the coverture after acquiring the estate, but also all debts which he contracted during the marriage, in respect of which such property might be affected, without regard to the circumstance whether the debts were owing to a private individual or to the crown. (Fullwood's case, 4 Coke's R. 64. And vide Gilb. Dow. 407-411.) So also the widow at common law holds her dower discharged from leases made by her husband during the coverture, and she is not bound by his release of a rent. (Stoughton v. Leigh, 1 Taunt. R. 404-410. Co. Litt. 32.) But if the incumbrances have been effected by the husband before the marriage, by securities which did not prevent his widow's title to dower of the estate, her endowment will not suspend the rights of the creditors against the third part of the lands assigned to her in dower, because her title, having relation only to the time when the marriage was solemnized, is preceded by the securities of the incumbrances, who are therefore entitled to a priority; consequently she will be liable to them for the amount of their demands, to the extent even of the whole of her dower. (Vide Jones v. Griffith, 2 Coll. N. C. 207. Palmer v. Danby, Prec. Ch. 137. Williams v. Wray, Ib. 151. Hamilton v. Mohun, 1 P. Wms. R. 118. Squier v. Compton, 2 Eq. Ca. Abr. 387. White v. White, 9 Ves. R. 554. Hitchens v. Hitchens, 2 Vern. R. 403.) But it is presumed that, as against her husband's general estate, she would be entitled to have her dower exonerated from such incumbrances. If, however, the debts are not of the husband's contracting, as when the estate descends to him before the marriage charged or incumbered, the widow must take her dower cum onere; for his own personal property is not liable to answer for the debts of other persons, and consequently not in the present instance, to exonerate the dowable estate from incumbrances so made upon it. (Vide 1 Bright's Husb. and Wife, 500.) Such is the common law rule with respect to incumbrances upon the estate in which the widow has her claim of dower, and the same doctrine is generally recognized in the United States. Though in England, at the present time, the widow's dower is subject to all incumbrances created by the husband, and to all debts and incumbrances to which the land is liable. (3 & 4 Wm. IV, ch. 105, § 5.) And the same rule has been incorporated into the statutes of several of the states.

DOWER IN EQUITY

CHAPTER XXX.

HER LIABILITY

JURISDICTION OF EQUITY · PRACTICE IN EQUITY FOR THE RECOVERY OF DOWER -COSTS IN PROCEEDINGS FOR DOWER · THE WIDOW'S POWER OVER THE LAND ASSIGNED HER FOR WASTE -HER RIGHT TO EMBLEMENTS TAKING POSSESSION OF THE ESTATE.

HER LIABILITIES ON

§ 438. In some respects a court of equity is the most complete and appropriate forum afforded the widow for the recovery of her dower. In a court of equity there are fewer embarrassments from forms of proceeding than at law, and obstacles which improperly tend to delay or defeat the widow of her rights are also more readily removed in equity than at law. It was formerly made a question as to how far courts of equity should entertain general jurisdiction in cases of dower, where no obstacle appeared to the legal remedy of the widow; but it is now well settled that a court of equity has a concurrent jurisdiction with a court of law upon this subject. The principle upon which this concurrent jurisdiction is entertained is said to be intelligible and reasonable; that is, that the widow labors under so many disadvantages at law from the embarrassment of trust terms and the like, and from an ignorance of the titles, values and quantities of the lands of which her husband was seised, that she is entitled and ought to have every assistance that a court of equity can give her, not only in paving the way to establish her right at law, but also by giving complete relief when the right is ascertained.. (Curtis v. Curtis, 2 Bro. Ch. R. 634.) And when the widow brings her action in a court of equity for the assignment of her dower, it is not necessary to charge in her bill that there is any impediment to her obtaining an endowment at law. If the title to dower is admitted, and nothing is to be done but to assign it, it would be useless to send the matter to a court of law, and the court may proceed at once to the assignment of dower. (Mundy v. Mundy, 2 Ves. Jun. R. 122. S. C. 4 Bro. Ch. R. 294.) But if the title to dower is disputed, that must be established by an issue at law, the court in the mean time retaining the bill, and assisting the widow in trying her right, and deriving the full benefit of it, when it is determined in her favor at law, and giving her possession according to her right. (Curtis v. Curtis, supra. Mundy v. Mundy, supra.) A commission usually issues, however, to set out and assign the dower. (Wild v. Wells,

1 Dick. R. 3. Lucas v. Calcraft, 2 ib. 594. Morgan v. Ryder, 1 Ves. & Beame's R. 20.) But the decree sometimes directs the master to assign the dower. (Goodenough v. Goodenough, 2 Dick. R. 795. Bamford v. Bamford, 5 Hare's R. 206.)

When the marriage is disputed, it has been the practice to send the case to a court of law to be adjudicated. However, witnesses are sometimes examined in the court of equity upon the issue upon the plea ne unques accouple. (Poole v. Poole, Young's Eq. Ex. R. 331.)

§ 439. Judge Story affirms, that "there are some cases in which the remedy for dower in equity seems indispensable at law; if the tenant dies after judgment, and before damages are assessed, the widow loses her damages; and so, if the widow herself dies before the damages are assessed, her personal representatives cannot claim any. But a court of equity will, in such cases, entertain a bill for relief, and decree an account of rents and profits against the respective representatives of the several persons who may have been in possession of the estate since the death of the husband; provided, at the time of filing the bill, the legal right to damages is not gone." (1 Story's Eq. Jur. § 625, citing Curtis v. Curtis, 2 Bro. Ch. R. 632. Dormer v. Fortescue, 3 Atk. R. 130. Mordant v. Therold, 3 Lev. R. 275.)

And, further, the learned judge says: "Upon principle there would not seem to be any real difficulty in courts of equity in all cases of dower; for a case can scarcely be supposed in which the widow may not want, either a discovery of the title-deeds, or of dowable lands, or some impediment to her recovery at law removed, or an account of mense profits before the assignment of dower, or a more full ascertainment of the relative values of the dowable lands; and, for any of these purposes, independent of cases of accident, mistake, or fraud, or other occasional equities, there seems to be a positive necessity for the assistance of a court of equity. And if a court of equity has once a just possession of the cause in point of jurisdiction, there seems no reason why it should stop short of giving full relief, instead of turning the doweress round to her ultimate remedy at law, which is often dilatory and always expensive. Dower is favored as well in law as in equity. And the mere circumstance that a discovery of any fact may be wanted to enforce the claim, would, under such circumstances, seem to furnish a sufficient reason why the jurisdic