Farnsworth v. Cole

| Wis. | Aug 15, 1877

Lyost, J.

Tbe circumstance that Mrs. Farnsworth receives an allowance out of tbe personal estate of her deceased bus-band pending administration, does not destroy or impair rights accruing to her by virtue of her right of dower in tbe real estate of which be died seized. A dower interest is a continuation of tbe estate of tbe husband, and is held of him by appointment of law. Conant v. Little, 1 Pick., 189; Baker v. Baker, 4 Me., 67. Hence, although certain proceedings may be necessary to ascertain and fix tbe extent or amount of the interest, when that is done, tbe interest must necessarily vest, by relation or otherwise, from tbe death of tbe husband. This principle is fully recognized by the statute wbiclr, in an action against an heir for dower, gives the widow one-third of the mesne profits from the death of her husband. R. S., ch. 89, secs. 24 and 25. The right to recover such mesne profits is given without qualification or exception in the statute, and we do not perceive how it can he defeated short of a release or actual payment.

The law greatly favors dower, and no widow should he deprived of it in lands owned by her husband during coverture, without clear authority of law. The same rule applies to mesne profits which grow out of and are the incident of dower. So far as we are advised, there is no statute which enacts, either expressly or by necessary inrplication, that a widow shall not be entitled to a share of the mesne profits of lands in which she has a dower interest, accruing during the time she was receiving an allowance out of the personal estate of her deceased husband. No authority which so holds is cited in the argument of counsel for the appellant.

Although a right of dower, before assignment, may be but an inchoate or imperfect right, and, strictly speahing, not an estate in the land (Howe v. McGivern, 25 Wis., 525" court="Wis." date_filed="1870-01-15" href="https://app.midpage.ai/document/howe-v-mcgivern-6600396?utm_source=webapp" opinion_id="6600396">25 Wis., 525), yet, the right being admitted (as it is in this case), no good reason is perceived why the respondent should not have the mesne profits which the law gives her as incident to the right. Probably she could only recover these profits of the heirs in an action for her dower; but when they are in the hands of the administrator, no good reason occurs to us why he should not be directed to pay them over to her.

By the Oourt. — The judgment of the circuit court is affirmed.