French v. Pratt

27 Me. 381

• Court: Supreme Judicial Court of Maine
• Decided: June 15, 1847
• Status: Published

Opinion

The opinion of the Court was drawn up, and read, June 30, 1848,by

Tenney J.

In Dec. 1830, Zadock French, the husband of the plaintiff, died intestate. According to the inventory returned to the probate office by the administrator upon his estate, the personal property was appraised at the sum of $2,680, and the real estate of which the intestate died seized, at the the sum of $>59,819. The claims returned as existing against the estate amounted to the sum of $29,624,78, in which was included a note held by E. D. Peters, secured by a mortgage given by the intestate upon the Penobscot Exchange Coffee House, and certain lots of land connected therewith. In the mortgage deed the plaintiff relinquished her right of dower in the premises conveyed. Upon the note so secured there was due on Jan. 19, 1831, the sum of $10,600.

On the petition of the administrator he was authorized by the Supreme Judicial Court, at a term held in the county of Penobscot, on the second Tuesday of June, 1831, to sell real estate of the intestate sufficient to pay the sum of $25,000, of the just debts and incidental charges. On July 26, 1831, upon the petition of the plaintiff, a commission issued from the probate court, directing the assignment of dower to her of all the real estate of which her husband died seized ; upon which the commissioners returned their appraisal of all such real estate at the sum of $61,199,50, the lot out of which dower is claimed in this action being a part; and that they had assigned to the widow, one full third part of all the real estate of which the Intestate died seized. The assignment was of certain entire lots, instead of one third part of each, including the Exchange Coffee House, and the lots connected. The report of the commissioners was accepted by the judge of probate, without objection, and the widow entered into the actual possession of the estate assigned to her, and in a part of which she has since conveyed her interest. She occupied the Exchange Coffee House herself, or by her tenants, till March, 1842, when the mortgage thereon, to secure the note held by Peters, was foreclosed. The other portions of the estate assigned to her, she still possesses; It appears that the administrator made sale of real estate of the intestate under the license, and from the avails and other means, paid debts due from the estate to the amount of from .$35,000 to $40,000, and that the note of Peters was reduced in its amount in the fall of 1835 to about $4,000 or $5,000; and that he was unable to pay this balance. The administrator has never made any return of his doings to the probate office, since he was licensed to sell, nor made any settlement of his administration.

This is an action of dower, unde nihil habet, wherein the plaintiff demands against the defendant her just and reasonable third part of lot No. 57 in Bangor. The tenant in his de-fence, among other grounds, relies upon this, that there was assigned to "the plaintiff not one third part of each lot of land of which the intestate died seized, but there was assigned to her certain entire lots and messuages in lieu and instead of one third part of each lot of which the intestate died seized, by commissioners appointed by the judge of probate upon her petition; that the return made by the commissioners, was duly accepted and recorded; and that the said assignment was accepted by the plaintiff as and for her dower, and by and with the consent of the heirs of the intestate. The plaintiff, in a counter brief statement, admits the assignment referred to in the brief statement of the tenant, but alleges, that after she had been in the occupation of the Penobscot Exchange Coffee House for a time, she was lawfully evicted therefrom; and therefore is entitled to be endowed anew.

In support of her action, the plaintiff relies upon statute chap. 95, sect. 14, which is as follows. “ If any woman be lawfully evicted of lands assigned to her as dower, or settled upon her as a jointure, or be deprived of the provisions made for her by will, or otherwise, in lieu of dower, she may be endowed anew, in like manner as though no such assignment or provision had been made.”

This right of a widow to be endowed anew, if she is evicted of lands first assigned to her as dower, is regarded by the plaintiff’s counsel, perhaps very properly, as an affirmance of a common law right, rather than as the introduction of a principle, entirely new.

“ When dower is assigned, there is a warranty in law implied, that if the tenant in dower is impleaded, she shall vouch the heir, and if evicted, shall recover the third of the remainder.” Co. Litt. 38, b; 1 Cruise’s Digest, Title Dower, chap. 4, sect. 26. “ In some cases a woman shall have a new assignment of dower. As when she is evicted out of the lands assigned to her, she shall be endowed of a third of the remainder.” 4 Rep. .122, a. The widow, at common law, is entitled in the assignment of dower, to one third out of each parcel of land, and if the assignment be made by the sheriff, he is obliged to assign a third part of each manor, or a third part of the arable, the meadow and the pasture. This method of endowment is denominated “ according to common right.” Co. Litt. 30, b, 32, b, and 39, b.

But when dower is assigned by the heir, he may assign one manor in lieu of a third of three manors, which will be good, if accepted by the widow. And this is called an assignment “ against common right.” The endowment by metes and bounds, “ according to the common right,” is more beneficial to the wife than to be endowed “against common right,” for then she shall hold the land charged in respect to a charge after her title of dower.” 1 Cruise’s Digest, Title Dower, chap. 4, sect. 12: Co. Litt. 32, b, note 2. “ If the husband dieth seized of other lands, in fee simple, and the same descend to his heir, and the heir endoweth the wife in certain of those lands, in full satisfaction of all the dower, that she ought to have, as well in the lands of the feoffees as in his own lands, this assignment is good, and the several feoffees shall take advantage of it. And therefore if the wife bring a writ of dower against any of them they may vouch the heir, and he .may plead the assignment, which he himself hath made in •safety of himself, lest they should recover in value against ,him.” Co. Litt. 35, a. This doctrine of the common law of England has been recognized as the law of this country. Jones & ux. v. Brewer, 1 Pick. 314; Scott, petitioner, v. Hancock & al. 13 Mass. R. 162.

- It is not denied by the plaintiff’s counsel, that if the heir .should assign as dower an entire parcel of land, in lieu of one third of several parcels, and the dowress should accept the .same, so as to bind her, she would take it charged with the .incumbrances; but it is insisted that when the assignment is made by authority of the judge of probate, it is otherwise; that the widow is not at liberty to object to an assignment .made by order of a court of competent jurisdiction.

The power of the judge of probate does not extend to an ;assignment of dower in lands of which the husband was not .•seized at the time of his death; or of lands of which the .husband was so seized, when the right to dower is disputed by the heirs or devisees. Stat. chap. 95, sect. 3; French v. Frosby, 23 Maine R. 276. Judge Jackson, in his treatise upon Real Actions, page 327, in reference to a plea in bar to .an action of dower, “ that her dower has been already assigned,” says, “ that it will vary in one case from English forms. By our laws the judge of probate for the county, where the ■estate of the husband is settled, may cause the widow’s dower to be assigned to her by three freeholders appointed by him, and such assignment, being duly accepted and recorded in the probate office, is binding upon all persons interested. This authority of the probate court, it is presumed, would be confined to the real estate of which the husband died seized. 'The statutes contemplate the settlement of the estate among the widow and heirs or devisees of the deceased.” It would seem to follow, that such assignments of dower, being made by the consent of the heirs or devisees of the lands of which the husband died seized, it is only another mode of assigning dower by the heirs or devisees, and the dower so assigned is subject to all the incidents, which would attach to an assignment made by them. If it were made “ according to common right,” and the dowress is evicted, she is entitled to be endowed anew; if “ against common right,” she takes the land charged with all incumbrances, and is concluded.

But it is insisted, that before a widow can be concluded by an assignment of dower “against common right,” if there should be an eviction, she must not only accept the dower assigned by the judge of probate, but must give a written and sealed release of all claim to the residue of the estate. No such release seems to be required where the assignment is made by the heir, and no good reason is pointed out, for its necessity, where dower is assigned by the judge of probate. According to lord Coke, in the previous citations, “ where dower is assigned by the heir, he may assign one manor, in lieu of a third of three manors, which will be good, if accepted by the widow.” In the case of Jones & ux. v. Brewster, the assignment of one entire parcel, instead of a third of each of several parcels, was made by release instead of the mode usually adopted; but it was not upon that distinction that the decision rests. The release of the widow was so qualified, that it was to have no other operation, than would the acceptance of the same land under a different mode of assignment. The Court say, “ the important point in every case of that kind is, that the widow has accepted, what could not have been lawfully assigned to her against her will.” And when it is said to be a voluntary release of a legal right for something supposed to be equivalent or more, it is not understood that she was regarded as barred merely because she had given a written release as evidence of the assignment, more than if she had accepted the assignment properly made, without the release.

Before an assignment made by commissioners appointed by a probate couit can have any validity, it must be accepted by the court, and a decree thereupon passed, and all become matter of record. Upon the question of acceptance, the heirs and the widow are entitled to be heard. She may claim to have the assignment made “ according to common right,” if it has not been done. She can object to an assignment “ against common rightand there would certainly be great propriety in this, if the land assigned was incumbered, and she exposed to an eviction. If her objection should not prevail, and the report should be accepted, she would have the right of appeal, or might perhaps refuse to accept the assignment, and resort to her remedy by a direct demand upon and action against the tenant of the freehold. But if she should interpose no objection to the assignment, suffer the commissioners’ report to be accepted, a judgment thereon to be recorded, and under that should enter upon the enjoyment of the lands assigned, it is difficult to see wherein she has failed to accept the dower as effectually as she could by her deed. She has become a party to a judgment of a court of competent jurisdiction, which judgment by her acts she carries into full execution.

Was it intended by the section of the statute relied upon, to extend the privileges beyond those which a widow holds under the common law? • This provision secures rights to a widow, when she has been obliged to yield her dower to a paramount title, without pointing out the remedy; for this, other provisions of law must be resorted to, in order to make that right available. If she comes within the meaning of the law, “ she may be endowed anew, in like manner, as though no such assignment had been made.” If, at the time of the eviction the whole estate of which the husband died seized is in the possession of the heirs and devisees, and they interpose no objection to the new endowment, a new petition may be presented to the judge of probate, and the proceedings will be precisely as they were upon the former application. If those who are tenants of the freehold in the land of which the husband died seized, at the time when the new assignment is called for, resist her right as claimed, the probate court has no jurisdiction of the matter, and the widow must resort to her action of dower, after a legal demand upon the tenant and his refusal to make the assignment. And here again it is her right, if any she have, “ to be endowed anew, in like manner as though no such assignment had been made.” She is entitled to be endowed of all the lands of which her husband was seized during the coverture, unless she is in some manner barred thereof. The right which she would enforce is not affected by any thing before done, if she is entitled by virtue of that provision. In the trial of an action of dower, the questions are, whether the husband was seized during the coverture, and is he dead; and what is the damage for detention ? Stat. chap. 144, sect. 5. If she obtains judgment, a writ of seizin shall issue, requiring the proper officer to cause her dower to be assigned, sect. 8, and the quantity of land to be set off is one third part, and determined by certain fixed rules of law, which do not change, to meet the equities of particular cases.

If a widow is evicted of only a part of the lands first assigned to her as dower, can she retain the remainder, and still be endowed anew, in the same manner as though no such assignment had been made ? If she can be endowed anew, upon an eviction of three fourths of her dower and retain the other fourth, she can claim the same right upon the eviction from any part, however small, and retain the residue. It requires no argument to show the injustice and absurdity of such rules. And the counsel for the plaintiff does not claim any right to more than sufficient to supply the loss of that of which she has been deprived. But the probate court cannot authorize commissioners to assign so much only as will make up the deficiency; the new commission cannot be engrafted upon the old; the considerations, which brought the first board to the result which they reported, cannot enter into the deliberations of the new board. The value of the property may have materially changed in the meantime. The part which the widow still holds may have vastly increased in value, and the part from which she has been evicted may have depreciated ; or a contrary change may have taken place. If she shall resort to her actions against the tenants of the freehold, she will be met by the same embarrassments and obstacles. We have seen that there is no remedy open to her, excepting to recover her dower; to that she is fully entitled, or she can claim nothing. No issue can be made and tried in an action of dower to determine the relative value of the lands lost and those which are still possessed by the widow. Such a duty, it is believed, was never undertaken by a court of common law; or was ever directed by such court to be performed by the sheriff, who had committed to him for execution a writ of seizin, upon a judgment in an action of dower.

Again, on the failure of title in that part, which was first assigned to the widow as dower, the quantity of land out of which dower would be taken after such failure, is so far diminished, and her rights are limited in the same ratio.

If practice would authorize such a commission from a probate court, or the trials of such issues; or such assignments upon a writ of seizin under other circumstances, the provision of the statute invoked, forbids its application to such a case as the present; she is to be endowed anew, in like manner as though no such assignment had been made.

It is manifest, that where a woman is endowed “against common right,” according to the course of proceedings under probate jurisdiction or at common law, there is an insurmountable difficulty, in making restitution to the dowress from the estate for any loss which may arise by reason of an eviction from a part of the lands assigned. If she is endowed of one third of each parcel of land, and the whole of any parcel passes into other hands under a paramount title, she is not prejudiced, for the estate of the husband is so much diminished in quantity, and she should not have dower in lands not owned by the husband. If the paramount title covers only the part assigned to the widow, she is then entitled to be endowed anew of a third part of the two thirds remaining, and there is no interference with other parcels. When the residue of the real estate, of which the husband died seized, after deducting the part assigned to the widow, is sold for the payment of debts or otherwise, the purchasers will understand, that as long as she holds one third they have a perfect title to the two thirds of each parcel, if the title was in the intestate; but if she is endowed of entire parcels instead of a third of each parcel, purchasers of the latter would, upon the plaintiff’s view of the law, be exposed to a deprivation of one third of the land which they had purchased under authority of law. Before it could be held, that proceedings, which tend to such inconveniences, irregularities, losses and absurdities can be authorized as legal, some positive rules of law should be shown, which require it. None such have been found. A widow endowed against common right, if there is no title paramount to that of her husband, holds the dower by a tenure which is not affected if the title to the whole of the residue of the estate should fail, and if she takes dower in this mariner, she is also subject to be deprived of the whole or a part, without recourse to other portions of the estate to supply the loss.

When these principles are applied to the case at bar, it is apparent that the plaintiff does not bring herself within the provision of the statute, so that she can recover in the present suit, upon that ground.

But it is again insisted, that the tenant has shown no title in the premises described in the plaintiff’s writ, and therefore he is not entitled to contest the right, of the plaintiff. It is quite manifest from the pleadings and brief statements, that this question was not intended to be raised at the trial. The defence disclosed by the tenant’s brief statement was, that the plaintiff had been endowed of all lands of which the husband had died seized. Instead of leaving the tenant to sustain that defence, and to show that he was entitled to set it up, by a counter brief statement, the plaintiff undertook to avoid its effect by relying upon an eviction of a part assigned to her as dower. But the widow is shown to have been endowed in all the lands of which her husdand was seized at the time of his death; the premises described in the writ were a part, of those lands. She has no right of dower therein; she can recover only upon the strength of her own title; by her writ, pleadings and course of proceedings, she has treated him as tenant of the freehold entitled to defend against her claim; and his possession cannot in such aspect of the case, be presumed to be other than lawful. Plaintiff nonsuit.