Lothrop v. Foster

51 Me. 367

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1863
• Status: Published

Opinion

The opinion of the Court was drawn up by

Appleton, C. J.

The demand to have dower assigned may be made by parol and by one authorized by parol. Baker v. Baker, 4 Greenl., 66; Luce v. Stubbs, 35 Maine, 92 ; Curtis v. Hobart, 41 Maine, 230. It seems a demand for dower need not be made by the widow personally, nor in the presence of witnesses. Watson v. Watson, 70 E. C. L., 5. In case last cited, the demand was made by the son of the demandant, without proof of any written authority, and its sufficiency was not questioned.

The husband having been seized of the premises in controversy during the coverture, the wife, upon demand, is entitled to dower, unless it be wild land. But there is no presumption that all land is wild, which the demandant must overcome, before she can have dower.

It is true, the wife, in the case before us, signed the deed with her husband, but there are no words releasing or indicating an intention to release dower. She is not, therefore, estopped to claim it. Stevens v. Owen, 25 Maine, 92.

The tenant cannot show an agreement to release dower by parol. The evidence of Stinchfield, offered for that purpose, was inadmissible.

The marriage of the demandant is neither denied by the specifications of defence nor by the pleadings. If it were, the certificate of the magistrate by whom the marriage ceremony was performed, and the testimony of witnesses who were present, seem sufficient to establish the fact.

The default to stand.

Davis, Kent, Waeton and Dickerson, JJ. concurred.