65 Me. 172 | Me. | 1876
Wm. McLeery was seized of the messuage described in the writ. At his death, the tenant, who is his widow, became entitled to dower in it. Subject to lier right of dower, the estate descended to his two sons. One of the sons, the husband of the demandant, acquired his brother’s interest in the estate, thus owning the whole. At his death, his widow also became entitled to dower. Both husbands are dead, and their wives survive. Here, then, two widows are dowable in the same estate. Their respective rights were as follows: The tenant (wife of the father), having the elder title in dower, would have for her dower one-third of the whole. The demandant (wife of the son), being the younger widow, would have one-third of the remaining two-thirds of tlie estate. Thus, the tenant would have three-ninths, and the demandant two-ninths thereof. This result comes from the principle established in the familiar maxim of ancient origin, that “dower ought not to be sought from dower.” Nor will the junior widow be dowable in the one-third that may be assigned to the senior widow, upon the death of the latter; and for this reason. In order to recover dower, she has to count upon her husband’s seizin. But during his lifetime he had no seizin of the one-third which goes to his mother as dower. When his mother’s dower is assigned to her, she partakes seizin therein by relation from her husband, continuing his seizin, and to that extent defeating the seizin of the son, who in such one-third has only a reversion. Had
But the question arises, whether the demandant may not be dowable in the whole estate, instead of two-thirds thex'eof, upon the ground that the title of the elder widow to dower has been in some way extinguished or lost, and this is claimed by the demand-ant to be the case from several causes.
First. She contends that the paper given by the sons to the mother has that effect. And, upon the other hand, the tenant claims that her acceptance of the paper amounted to an assignment of her dower. But our opinion is that the agreement had neither the one effect nor the other. It neither assigned dower nor extinguished it. It was not an extinguishment of dower, because there is no release or conveyance under her hand or seal, nor does she in any way design or attempt to surrender her right. Nor could it operate as an assignment to her of her dower. A portion of the consideration to her in the agx-eement consists of the executory promises of the sons, which may never be fulfilled. The agx’eement (not signed by her), merely related to “the use and income” of her dower by the sons until set out to her. It opex’ated only to suspend her claim for a time. Sargent v. Roberts, 34 Maine, 135. Austin v. Austin, 50 Maine, 74.
' Then a question ax'ises, whether the demandant may not have dower in the whole estate until the dower of the tenant has actually been assigned to her. It is held by text-writers, and is so decided generally, that the maxim dos de dote peti non debet does not apply where there has not been an actual assignment to the first widow. This is upon the principle that the husband of the second widow may be considered as seized in his lifetime of the estate charged with the right of dower of his mother, as against
Then it may be argued that the tenant’s right of dower has been lost by consolidation with the fee conveyed to her by her son. In Leavitt v. Lamprey, 13 Pick., 382, it was decided that a second widow was not entitled to dower in the whole of an estate against the tenant to whom the senior widow had conveyed her right after she had recovered judgment for dower therein, but before it was set off to her. While in Atwood v. Atwood, 22 Pick., 283, it was held that a prior right of dower which had been released to the tenant before any suit to enforce the same, could not be set up to diminish the claim of a second widow who claimed dower in the whole estate. But we have already expressed the opinion that in the case at bar the senior widow is in the same condition and bears the same relation with all parties interested as she would if her dower had in point of fact been set out to her. She is entitled to a life estate of one-third. She is in actual possession of it as well as of the reversion, and she is defending her possession. In this state the doctrine of merger is not favored in law or equity. It is clear enough that if this was a proceeding in equity a merger could not be regarded as taking effect. It is man
The point, however, upon which the demandant places the greatest reliance and stress, is that the tenant is barred from her claim of dower, upon the technical ground of estoppel. It is contended that, by accepting from her son a deed of the premises with the usual covenants of warranty, she admitted that he was' fully seized of all the premises as of fee,' and, the argument is, that she is now estopped to show the contrary. In support of this view, Lewis v. Meserve, 61 Maine, 374, is cited for authority. The tenant, admitting Lewis v. Meserve to be correctly decided, denies that it can apply to a case like the one at bar. We think the distinction is well taken. That case was decided with exact correcthess, having reference to the actual question then before the court for their determination. There it appeared that the tenant who resisted the claim of dower obtained all his title from the husband of the demandant, and there was no pretense that he had any kind or claim of title from any body else. He merely set up that-some one else might have a title paramount to his. But he had no relation with it, if it was so. The court were clearly of the opinion that he was estopped to deny the seizin of his own grantor, who was the husband of the demandant in that suit. All the cases áre in accord as far as that case goes. The point is there briefly alluded to, the decision of it not being really necessary to the result of the case. But the present case is a different one.
