Webb v. Townsend

18 Mass. 21

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1822
• Status: Published

Opinion

Per Curiam.

In Conner v. Shepherd, it was decided, that a widow is not dowable of land in a wild and uncultivated state. In several other cases it has been determined, that when land of which a widow is dowable shall have been increased in value by a grantee of the husband, her dower shall be assigned according to the value of the land when alienated.¹ In the case before us, when the alienation took place, the land was in a state of nature, and the demandant could not have had dower. At the time when dower was demanded, the land had become a cultivated farm, but altogether by the tabor of the grantee, or those who claim under him. It is contended, that some of the reasons on which the decision in Conner v. Shepherd was founded do not apply in this case, because now the land is in a state to admit of the enjoyment of dower without committing waste, and thus forfeiting dower the moment it is begun to be enjoyed ; which would not be the case in respect to land wholly uncultivated. But if the principle settled in the case of Libby v. Swett et al., Story’s Pleadings, 365, is to be applied, it would follow that there would be nothing on which the commissioners could act, who should be appointed to assign the dower. They would be required by the commission to set off such a part of the land as would yield one third part of the rents and profits as they were at the time of the alienation ; at which time there were no rents and profits ; so that the widow could get nothing. It follows oecessarily from the cases before settled in relation to dower, that the demandant cannot prevail in this action. The husband was not seised during the coverture of any estate of which the widow could be endowed. The land in which she now demands, her dower has been put into the state which subjects it to dower, only by the labor and expense of the tenant, and those under whom he claims. This cannot be to the benefit of the widow of him who left it without having done any thing to change its natural state.

The case of Nash v. Boltwood was determined before we had reports of the decisions of this Court, and we do not know the grounds on which it was decided.¹

Demandant nonsuit.

1 Stearns v. Swift, 8 Pick. 532; Ayer v. Spring, 9 Mass. R. 8; Catlin v Ware, 9 Mass. R. 218; Ayer v. Spring, 10 Mass. R. 80; Winder v. Little, 1 Yeates, 152; Humphrey v. Phinney, 2 Johns. R. 484; Dorchester v. Coventry, 11 Johns. R. 510; Hale v. James, 6 Johns. Ch. R. 258; Coates v Cheever, 1 Cowen, 460; Shaw v. White, 13 Johns. R. 179. See also Gore v. Brazer, 3 Mass. R. 544. But in Thompson v. Morrow, 5 Serg & R. 289, and Powell v. Monson & Brimfield Man. Co. 3 Mason, 347, it was held, that the widow shall be endowed of the actual value of the lands at the time of the assignment of the dower, excluding from the estimate the increased value arising from the improvements made by the alienee. See also Powell v Monson & Brimfield Man. Co. 3 Mason, 459.

1 A widow is dowable of a lot of wild land, which was used by her husband, m connection with his dwellinghouse and cultivated land, for the purpose of procuring fuel and timber for repairs. White v. Willis, 7 Pick. 143. Bn not of mines unopened at the death of her husband. Coates v. Cheever, 1 Cowan, 466.