Mosher v. Mosher

15 Me. 371

• Court: Supreme Judicial Court of Maine
• Decided: April 15, 1839
• Status: Published

Opinion

The opinion of the Court was afterwards drawn up by

Shepkey J.

It was decided in the case of Conner v. Shepherd, that a widow was not dowable of wild land covered with wood and wholly uncultivated.

In the case of White v. Willis, 7 Pick. 143, the disallowance of dower was held to be limited to such land not used with the homestead, or with cultivated land.

A .like rule was adopted by the Court in the case of Kuhn v. Kaler, 14 Maine Rep. 409. No part of the land in this case comes within the rule, which excludes the widow, and she is entitled to her dower. But she is not entitled to be endowed of improvements made by the grantee of the husband, or by the assignee of such grantee.

Whether the value of the land should be regarded as fixed, at the time of the alienation, or tire widow should be entitled to the benefit, or be compelled to bear the loss arising from the rise and fall of property and other circumstances unconnected with improvements upon the land, has been much considered; and there was at one time apparently no little difference of opinion upon it between distinguished jurists. Humphrey v. Phinney, 2 Johns. R. 484; Dorchester v. Coventry, 11 Johns. R. 510; Hale v. James, 6 Johns. Ch. R. 258; Thompson v. Morrow, 5 S. & R. 289; Powell v. Mon. & Brim. Man. Co. 3 Mason, 365. Such difference can hardly be considered as now existing, for Kent admits the more reasonable doctrine to have been stated by Ch. Justice Tilghman. 4 Kent’s Com. 68. The widow is to be excluded from the improved value arising from the labor and money expended upon the land since the alienation, but not from that, which has arisen from other caqses.

Judgment for demandant.