Ward v. Gardner

112 Mass. 42

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1873
• Status: Published

Opinion

Wells, J.

The widow is not a proper party to these proceedings. If all the heirs or tenants in common do not join in setting out the dower, it can be done only upon proceedings brought for the purpose by the widow. Her right to have dower is no bar to a partition among the tenants in common. It cannot be set out, in whole or in part, by one tenant in common alone ; and he can neither commence, nor require her to commence, proper proceedings for that purpose. If he cannot have partition until dower is set out, it would be in the power of the widow and any one of the heirs or tenants in common to defeat it altogether during the life of the widow.

It is a matter of discretion in the court, at nisi prius, whether to delay the issue of a warrant for partition, and how long, in order to await proceedings begun or to be begun by her for the setting off of her dower. Judgment for partition.