Potter v. Wheeler

13 Mass. 504

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1816
• Status: Published

Opinion

By the Court.

The demandant claims her dower in an undivided moiety, having, in the lifetime of her husband, relinquished her claim in the other moiety. The tenant pleads a partition made between the husband and his co-tenant, and claims to hold in severalty free of the claim of the demandant. It is objected to this, that it places the wife’s interest too much within the power of the husband ; and a strong case has been put, of the husband taking his whole share in wood-land, by which the wife would be deprived of all n,-e of or benefit from her dower.

* It seems to be a sufficient answer to this, that it is always in the power of one tenant in common to enforce a partition, and that the husband would be bound by it. Fraud would avoid this, as it would every act, however solemn. There seems to be no good reason, why a voluntary performance of an act, to which the party is compellable by law, should not have the same effect as if produced by compulsion.

It being an incident to an estate in common, that either tenant may be compelled to make partition, the wife of one of them, by her marriage, gains an inchoate right to her dower, subject to such a contingency, by which her interest may be increased or diminished.

Tenant's plea good.