nanted on their part to pay an annual rent for the right and privilege thus granted, a failure to make payment to operate as a forfeiture of their rights. In April, 1833, the Canal Commissioners, upon the application of the lessees, passed resolutions in reference to the location of buildings and machinery, so as to enable the lessees to use the surplus water, and under this authority, mills and a storehouse were erected on the dam, and upon piles in the harbor. The water power granted as above stated was employed in operating these mills. The husband of the demandant died vested with an undivided interest in this property and water power, and dower was claimed, not only in the mills and the premises upon which they were situate, but also in the right to the use of the water conferred by the State. Upon full consideration of the case, the court held that the right to take the water for hydraulic purposes was not subject to dower. "The Canal Commissioners," they remarked, "only sold, demised, &c., 'the right and privilege of taking and using at all times, for hydraulic purposes,' a portion of the surplus waters of the canal at Black Rock. This was a mere right and privilege to use surplus waters. There could be no dower in such a right. Nor did the permission which the Canal Commissioners gave, by the resolutions of 1833, to erect buildings in the river, and upon the dam, create any estate in the lessees of the privilege to use water, of which a widow of one of them could be endowed."

Slaves.2

41. The statutes of Virginia,3 Kentucky, Arkansas," and Mis

1 See, also, Buckingham v. Reeve, 19 Ohio, 399.

2 "She shall be endowed of villeins regardant." 2 H. 6, 11, b. "So she shall be endowed of villeins in gross, for this is an inheritance." 2 H. 6, 11, b.; Vet. Nat. Br. 7, b. "And so of villein appendant, and the writ shall be de libero tenemento.” Br. Dower, pl. 91. "She shall be endowed of a villein, either the third day's work, r every third week or month." Co. Litt. 32, a., 164, b., 307, a. "For in him a man may have an estate in fee, or fee tail, or for life, or years." 9 Vin. Ab. tit. Dower, 212, pl. 3, 4. and marg. note.

3 Act of March 2d, 1819, 1 Rev. Code 1819, ch. 111, p. 435, 60; p. 439, & 70; Page . Page, 2 Rob. 424. The earliest statute in this country recognising dower in slaves is the Virginia act of 1705, ch. 23, ?? 9-11; 3 Hen. Stat. at Large, 334-5.

4 Rev. Stat. of Ky., by Stanton, vol. i., p. 425, 14; vol. ii., p. 27, 14; Rev. Stat. 1852, p. 282, 14; p. 394, 214; Smiley v. Smiley, 1 Dana, 94; McCans v. Board, Ibid. 340; Lee v. Lee, Ibid. 48; Brewer v. Van Arsdale, 6 Dana, 204; Triggs v. Daniel, 2 Bibb, 301; Graham v. Sam, 7 B. Mon. 403; Northcutt v. Whipp, 12 B. Mon. 65.

5 Rev. Stat. (1838,) p. 339, % 20; Dig. of Stat. (1848,) p. 448, 20; Dig. Stat. (1858,) p. 453, 21; Cook v. Cook, 7 Eng. 381; Arnett v. Arnett, 14 Ark. (1 Barb.)

A

L

souri' confer upon the widow a right of dower in slaves. In Arkansas and Missouri the right is limited to such slaves as were possessed by the husband at the time of his death.2 In Kentucky, under the early statutes, it was repeatedly decided that the husband might emancipate his slaves by will, and that in such case his widow had no right to be endowed thereof, although she renounced the will. But a nuncupative will was deemed insufficient to pass slave property in that State, and, therefore, where the widow renounced the provisions of such a will, she was held dowable of her husband's slaves. And now, by statute, the emancipation of slaves by will is not to affect the right of dower therein where the widow elects to take under the law. In such case the widow is to be compensated to the extent of her interest in the slaves emancipated, from the other personal estate of the husband, if enough remain after payment of the debts. If part only of the slaves be set free, her share is to be taken from those not emancipated, if there be enough. If any part of those set free is necessary to make up her share, all the slaves emancipated are to be hired out, and the hire paid to her until she is compensated for her share." The Virginia statute of 1819 contains a similar provision."

42. In Arkansas the right of dower in slaves is held to embrace the increase accruing between the death of the husband and the time of the allotment of dower.' But, as above stated, the right does not attach until the death of the husband. And where the husband had disposed of slaves by gift during his lifetime; and where, also, slaves of the husband had been seised during his lifetime, on execution, and sold after his death, it was held that no claim of dower existed in either case. But the husband can not defeat his wife's dower in his slaves by emancipating them by will. If she renounce the will, her right to be endowed is unimpared.8

57; Welch v. Cole, Ibid. 400 Hill v. Mitchell, 5 Ark. 608; Morrill v. Menifee, Ibid. 629. [See Haynes v. Bessellieu, 25 Ark. 499.]

1 Rev. Stat. Misso. (1845,) ch. 54, p. 430, ? 2; Walls v. Coppedge, 15 Misso. 448.

2 Rev, Stat. Ark. (1838,) p. 339, 20; Dig. of Stat. (1858,) p. 453, 21; Rev. Stat. Misso. (1845,) p. 430, ? 2.

3 Lee v. Lee, 1 Dana, 48; Brewer v. Van Arsdale, 6 Dana, 204; Graham v. Sam,

7 B. Mon. 403. See, also, Northcutt v. Whipp, 12 B. Mon. 65.

4 McCans v. Board, 1 Dana, 340.

5 Rev. Stat. Ky. (1852,) p. 282, 14; 1 Stanton's Rev. p. 425, ? 14.

61 Rev. Code 1819, p. 435, % 60.

Crow v. Powers, 19 Ark. 424.

VOL. I.-15

7 Menifee v. Menifee, 3 Eng. 9.

CHAPTER XI.

OF THE NATURE AND QUALITIES OF THE ESTATE SUBJECT TO

1. Introductory.

DOWER.

10. There must be no intervening

2, 3. The estate must be one that the freehold estate.

issue of the wife might inherit.

11, 12. Intervening chattel interest no

4. Not necessary that the wife should impediment to dower.

have issue.

13-15. Determination of the interme

5. It must confer a right to the immediate estate during the coverture gives diate freehold.

6, 7. Incorporeal hereditaments goy

erned by the same rule.

8, 9. The husband must be vested with the freehold and inheritance simul et semel.

dower.

16-34. Effect of intervening contingent freehold remainder.

35. The vesting of such remainder defeats dower.

36, 37. Effect of intervening possibility.

1. HAVING seen what property, with respect to its nature and qualities, is subject to dower, we come next to the consideration of the character of the estate, or degree of interest in such property, with which the husband must be invested, in order to enable the right of the wife to attach.

The estate must be one that the issue of the wife might inherit.

2. This doctrine relates more particularly to estates held in tail special. A case for its application is thus stated by Littleton: "If tenements be given to a man and the heirs which he shall beget of the body of his wife, although the husband die without issue, the same wife shall be endowed of the same tenements, because the issue which she, by possibility, might have had by the same husband, might have inherited the same tenements. But if the wife dieth, living her husband, and after, the husband takes another wife, and dieth, his second wife shall not be endowed in this case."

3. It is to be observed, however, that under the law of entailments, cases may arise, where, although the issue of the wife

1 Litt. sec. 53; Bro. Dow. pl. 36; Finch's Law, b. 2, c. 3, pp. 125, 126; 2 Saund. Rep. 45, n. note 5; Perk. sec. 301, 302; Reeve's Dom. Rel. 40; see Spangler v. Stanler, 1 Md. Ch. Decis. 36.

might, by possibility, inherit the estate, yet no right of dower would attach in her favor. It is essential to her right that the issue should be able to take not only as heir to the father, but also in virtue of a seisin by him during the coverture upon which her claim to dower is founded; for although the issue might take as heir to the husband in respect of some other estate which he has in him in right, or in remainder, this alone would not confer dower.' The following case is presented by way of elucidation of this principle: "If a man be tenant in fee tail general, and make a feoffment in fee, and taketh back an estate to him and to his wife, and to the heirs of their two bodies, and they have issue, and the wife dieth, the husband taketh another wife and dieth, the wife shall not be endowed, for, during the coverture, he was seised of an estate tail special, and yet the issue which the second wife may have, by possibility may inherit." Here, the only estate of which the husband had a seisin during the coverture of the second wife, was not inheritable by her issue, being an estate to him and the heirs of the body of himself and his first wife; and yet the issue of the second wife, might, by possibility, inherit the elder estate tail, which was a tail general, and, in default of issue of the first wife, would actually succeed to that estate. The same general doctrine is thus stated by Perkins: "If tenant in general tail take a wife, and enfeoff a stranger, and take back an estate to him and his wife, in special tail, and the wife dies, and he takes another wife, and hath issue and dies, the second wife shall not be endowed; yet the issue is remitted to the general tail."

In many of the States the rule of the common law, allowing estates to be entailed, is abolished. As to those States the distinctions above discussed are, practically, of but little import

ance.

1 Park on Dow. 79. [Upon the same principle, a sheriff's sale under an execution against land of a tenant in tail will divest the dower of the wife, although the heirs in tail are not affected by it. Elliott v. Pearsoll, 4 Clark, (Philada.) 187.]

2 Co. Litt. 31, b.; Bro. Dow. pl. 18.

3 Park on Dow. 80.

4 Perk. sec. 302. "If this was intended of the issue of the second wife, who are the only issue mentioned, and which the context seems to require, there could be no remitter, because the defeasible estate tail never descended on such issue, they not being inheritable to it. The real case, however, in the books, was, that the issue was by the first wife, which removes the difficulty." Park, 80, note.

See post, ch. 13, ¿? 3-6.