99 P. 69 | Or. | 1909
Lead Opinion
Opinion by
“I give, bequeath and devise to each of my heirs at law the sum of one dollar.”
The contention was that the term “heirs at law” includes the children of the testator, and that it therefore necessarily follows that the children were not overlooked or forgotten. In the course of the opinion Mr. Justice Hawley says: “ The words ‘heirs at law’ may, it is true, be read to mean ‘children,’ and should always be so construed if the context distinctly shows that the words were employed in that sense by the testator. The
“That the said deed conveyed to said John W. Henrichs the dower interest of said Lucy M. Neal and no other or greater estate in the said premises.”
From this it is argued that during the life of Mrs. Neal, Henrichs was lawfully entitled to the possession, use, and enjoyment of one-third of the lands, the fee-simple title to which had descended from the father, Jesse Neal, to his children; that, the dower interest not having been assigned, he was entitled to have such use, enjoyment, and possession jointly with them, and thereby they became tenants in common with him; and that this prevented the running of the statute against them until the termination of the particular estate which did not occur until July 17, 1900. Hence they conclude that the further and separate reply to which defendants’ demurrer is directed avoids the plea of the statute of limitations, and is a bar to the claim of a fee-simple title set up by defendants in their answer. Both of these conclusions, however, are erroneous, as we shall endeavor to show.
It is true the deed of Lucy M. Neal is sufficient in form to convey to Henrichs whatever vested estate ox-interest, if any, she possessed in the lands at the time of its execution, but the real inquiry is what was the nature of her interest, if any, and' was it vested. All she had, or that is claimed by plaintiffs that she, had, was a claim of dower unassigned. But at common law, “although the widow’s dower has become consummate by the death of the husband, it is not, previous to an
“When a widow is entitled to dower in the lands of which her husband died seised, she may continue to occupy the same, with the children or other heirs of the deceased, or may receive one-third part of the rents, issues, and profits thereof, so long as the heirs or others interested do not object, without having the doweassigned.”
This statute, however, does not effect any change in the nature of her right so as to make her a tenant in common with the heirs. The fact that the widow may occupy the lands subject to her claim of dower without having it assigned, if the heirs do not object, does not change the essential nature of her rights. McMahon v. Gray, 150 Mass. 289 (22 N. E. 923: 5 L. R. A. 748: 15 Am. St. Rep. 202). Such possession is at the will or sufferance of the heir, and not by right. If the heirs deny the widow’s right to dower or do some act amounting to such denial, she may bring an action in the nature of ejectment for the recovery of her dower before admeasurement, as provided by Section 337, B. & C. Comp., but by Section 341, B. & C. Comp.:
“In an action to recover the possession of real property by a tenant in dower, or his successor in interest, if such estate in dower has not been admeasured before the commencement of the action, the plaintiff shall not have execution to deliver the possession thereof until the same be -admeasured.”
These provisions of the statute adverted to relate only to the form or mode of proceeding, and do not alter or modify the interest of the widow, nor make her a tenant in common with the heirs. 7 Pl. & Pr. 284; 2 Scribner,
“The entry of the wife, upon her husband’s death, without an assignment, is by the books treated as an abatement; and a doweress in, under a void assignment, may be regarded as a disseisor. Until assignment, a title of dower affords no impediment to the validity of a recovery; nor is it to be considered for any other purpose as an outstanding estate of freehold. And, according to the strict rule of the common law, a judgment for dower will not of itself invest the widow with the freehold. An actual entry, after assignment or a delivery of seisin by the sheriff, is necessary to effect this result.” 2 Scribner, Dower, § 27.
Thus in Sheafe v. O’Neil, 9 Mass. 13, the proceedings were entered against the defendant as a disseisor. She pleaded in bar as to one undivided third part of the demanded premises, that her late husband during their coverture was seised in fee of the demanded premises; that she had never parted with her right of dower therein, and, upon the death of her husband, she entered into the undivided third part of the lands as tenant in dower, and still possessed the same. As to' the other
“ ‘A distinction was contended for by the defendant’s counsel,’ the court remarked in deciding the case, ‘that, though the widow could not justify her entry against the heir or devisee, yet such. heir or devisee could not recover against her, when in possession, as defendant in ejectment. We can see no ground whatever for the distinction; for, if she could hold adverse to the heir or devisee, without an assignment of dower, she could also maintain an ejectment to recover possession.’ So, if the widow tarry in the chief house of her husband after the expiration of her quarantine, proceedings in ejectment may be brought against her by the heir or by any person claiming title under him. Her only remedy in such case is to proceed for an assignment of her dower.” 2 Scribner, 32; 4 Kent, 61; Jackson v. O’Donaghy, 7 Johns (N. Y.) 247; McCulley v. Smith, 2 Bailey (S. C.) 103; Collins v. Warren, 29 Mo. 236. Such being the rights of the widow before assignment of her dower, she could not convey' to another any vested legal right in the land or to the possession thereof, and therefore a purchase of the widow’s dower interest before assignment, and an entry and possession of the lands by the purchaser, is no defense to an action of ejectment brought against him by the heirs. 14 Cyc. 965; 10 Am. & Eng. Enc. Law (2 ed.) 147; Wallace v. Hall’s Heirs, 19 Ala. 367); Pidcock v. Buffam, 61 Mo. 370; Carnall v. Wilson, 21 Ark. 62 (76 Am. Dec. 351); Barnett v. Meacham, 62 Ark. 313 (35 S. W. 533); Howe v. McGivern, 25 Wis. 525; McCammon v. Detroit R. Co., 66 Mich. 442 (33 N. W. 728); King v. Merritt, 67 Mich. 194 (34 N. W.
Neither can the judgment be sustained upon the theory of the running of the statute; for, if the pleadings showed that the statute had run, that fact would not invest defendants with the title which has been adjudged to them, but would take away from plaintiffs only the remedy and at the utmost would authorize a judgment of dismissal of the action or judgment for costs (Hoover v. King, 43 Or. 281: 72 Pac. 880: 65 L. R. A. 790: 99 Am. St. Rep. 754); but we have called, attention to the fact that the plea of the statute of limitations is denied by the reply, and there are no facts elsewhere admitted therein which could be held to show that the plaintiffs or their predecessors were not seised- or possessed of the
Under this state of the record, it appears that it is necessary to reverse the judgment and remand the cause . for a new trial, so that these issues may be determined by a jury. Reversed.
Rehearing
Decided April 20, 1909.
On Petition for Rehearing.
[101 Pac. 212.]
delivered the opinion of the court.
But Henrichs entered under a deed purporting on its face to convey the whole title to him, and warranting
The motion is therefore denied.
Reversed: Rehearing Denied.