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land will be binding as against the husband's right of curtesy.
The desertion of wife by husband, even when he lives in adultery with another woman, does not affect his right to curtesy in land of wife. Curtesy becomes a vested right in all lands of which the wife holds seisin, upon marriage and birth alive of issue capable of inheriting.
A husband may lose his right to curtesy by his own negligence or laches in not asserting his rights within a reasonable time, but laches will not be imputed to him nor will his estate be barred until after the death of his wife.
Land held by an estate by the curtesy may be used by the husband in such a way that he may enjoy the reality for any legitimate purpose for which it is adapted. It must, however, be used in such a way that it will revert uninjured to those who are entitled to the succeeding estate.
For a further treatment of curtesy, see subject of Real Property."
SECTION 29. DoWER.
Dower is the estate to which the widow was entitled during her life in one-third of the lands or tenements in fee-simple or fee-tail, of which her husband was seised at any time during the coverture and which any issue she might have had, might have inherited.
The different classes of dower, are: Dower by custom, under some local custom; dower ad ostium ecclesiae, where the wife was endowed by husband at the door of the church; dower ex assensu patris, where by the consent of the wife, dower was vested in her at the door of the church out of the land of the father of her husband instead of out of the lands of her husband; dower de la plus belle, where dower was given her in the land of her husband held in socage and dower in the land held in chivalry released; and dower by common law.
su Vol. 6, Sub. 17.
The requisites for the creation of an estate in dower were, a valid marriage, seisin or the right to immediate seisin in husband during coverture and the death of husband.
A widow has dower in all lands held by husband in fee-simple or fee-tail, where the husband has seisin or the immediate right to seisin during lifetime. A widow at common law had no dower in the equitable estates of her husband.
A widow might have a right of action either to have her dower interest assigned to her or to recover for injuries to her estate in dower after it has been so assigned. The ancient real actions for the former purpose, at common law, were the writ of right of dower and the writ of dower unde nihil habet.
The right to dower, subject to the contingency of the survivorship of the wife, attaches upon marriage as to all land held by the husband at that time, and thereafter attaches as to all land subsequently acquired by the husband the instant he becomes the owner of such land.
The right of dower may be barred by an antenuptial contract, providing the terms of such contract are fair to the wife, and no undue advantage has been taken of her in the transaction.
A post-nuptial settlement in lieu of dower will also be upheld in the absence of fraud.
A devise in lieu of dower will bar the widow's right of dower upon her acceptance of the devise. She may, however, reject such devise, and in such a case will be entitled to her right of dower.
An election between dower rights and a provision in lieu of dower may be made by acts of the widow showing her intention, as well as by an expressed election between the two. Such election when the widow has made it without fully understanding her rights, and especially when she has been misled by those having an adverse interest, may be rescinded within a reasonable time. The time within which an election between dower and a provision in lieu of dower must be made, has been very generally regulated by statute. In the absence of any such statutory provision, it must be made within a reasonable time. A sum of money may be accepted in lieu of dower.
A right of action to have dower assigned, or for damages done to the dower estate, must be prosecuted to final judgment during the lifetime of the widow. The widow has no action against the alienee of the land of the husband personally; such alienee holds the land subject to the dower right of the widow.
A divorce a vinculo matrimonii destroyed the wife's right of dower. A divorce a mensa et thoro did not effect the wife's right of dower.
A divorce granted in a foreign jurisdiction will destroy the right of dower to the same extent as a local divorce. This is the rule in all the different states of the United States, except New York.
A widow is not entitled to dower in improvements placed upon land by any other than her husband. The lien of the vendor for his purchase is superior to the widow's right of dower. Where land is taken by the right of eminent domain, the widow's right of dower is destroyed.
A wife has no dower interest in the proceeds of land sold by her husband where she has not joined in the deed. She still has her right of dower in the land sold. A wife has no right of dower in any land which her husband holds as trustee.
An estate in dower in the same land can exist in two persons at the same time; as where a husband dies, leaving a widow and a son, and then the son dies, also leaving a widow. Here the widow of the father has a dower right in one-third right of the whole land, while the widow of the son will have a dower right in one-third of the property outside of the third held by the widow of the father.
The right of dower may be lost by unreasonable delay in asserting it. By statutes, a wife may relinquish her right of dower in any piece of property by joining with her husband in a deed of such property.
A wife can never convey her dower right to her husband. A conveyance of a dower interest comes under the statute of frauds and must be in writing. Dower is assigned by metes and bounds in such a way that the share of the widow shall not only be a third of the estate in quantity, but also in value. The right of dower may be lost by estoppel. Any conduct on the part of the wife, leading others to act, with reference to her rights, to their injury, will have this effect.
When the husband exchanges one piece of land for another without the wife joining in the conveyance, the wife is entitled to dower in either of the pieces of land which she chooses, but she cannot have power in both.
A wife has right of dower in land held by husband as tenant in common, but not in land held by husband in joint tenancy or by a partnership of which he was a member.
When husband conveys land in contemplation of marriage, such transfer will be void as to all parties taking with knowledge of the proposed fraud on the wife, and she may have dower in such land.
The wife's right of dower is superior to the rights of the creditors of the husband.
A dower estate will always be merged in any greater estate which the wife may acquire in the same property. When a wife has joined in a mortgage, she is entitled to dower in the mortgaged property, subject to the rights of the mortgagee. The right of dower is determined by the laws of the state or country in which the land, in which the dower is claimed, is situated. The granting by statute to a widow of the right to an estate of homestead in nowise affects or lessens her right of dower. A sale of land for taxes, under due process of law, will destroy a widow's right of dower.
The sale of land under execution against husband will not destroy the wife's right of dower. The dower estate of a widow may be seized under execution against her, after it has been regularly assigned and set off to her. A wife, who deserts her husband without any due cause, thereby forfeits her right of dower.
The statute of limitations will begin to run against the wife's right of dower upon the death of the husband.
The wife has dower in mineral lands of her husband. She cannot, however, open up any new mines, but can only use the mines already opened according to the weight of authority.
At common law, the heir at law, was entitled to assign the widow's dower to her, at the present time