43 N.J. Eq. 215 | N.J. | 1887
The opinion of the court was delivered by
The single question presented for our determination is whether the respondent, in stating her account of rents received, and expenditures for the three houses, shall be credited with the taxes, proportion of interest and repairs of the dwelling-house occupied by her since the death of her husband. As widow, she is entitled to dower in all of these lands, of which her husband
The derivation of this statute from the widow’s quarantine, by the law of England, has been recognized in every construction and application that has been given to it and like statutes. It is important to notice this historic derivation of our law in determining the kind of interest which the widow has in the mansion-house of her husband before the assignment of her dower. As, at the death of the ancestor, the descent of land was east on his heir, it was needful that some immediate provision should be made for his widow’s shelter and support before her dower was assigned. Co. Litt. SB, says: “Some have said that by the ancient law of England the woman should continue a whole year in her husband’s house, within which time, if dower were not assigned, she might recover it, and this was certainly the law of England before the Conquest. By the statute of Magna Charta (chapter 7) she shall tarry in the chief house of her husband but by the space of forty days after the death of her husband, within which time the dower shall be assigned unto her.” See Bac. Abr. tit. “Dower ” (b); Jac. Law Dic. “ Quarantine;” 4. Kent Com. 61; 2 Scrib. on Dower 49; 1 Washb. on Real Prop. 186, 189, 271, 272.
This provision of quarantine for the widow in her emergency was carefully distinguished from her right of dower before it was assigned to her, and when the assignment had been made her estate in dower related to the date of her husband’s death, as a continuance of his estate in the lands. The widow’s quarantine is called, in the books above cited, “a privilege,” “a benefit,” “a right,” but not a freehold estate in land. The interest given to her was temporary and fugitive in its purpose, and not designed for continuance beyond a brief time, and as a means of constraining the heir to assign her dower without unreasonable delay. But it is said that our statute, passed January
It is difficult and often misleading to attempt to define statutory rights by terms of the law applicable to other conditions and conformed to rules of the common law, and some confusion has been caused in thus attempting to construe this statute and like statutes in other states. It is better to make the statute its own interpreter, and to construe it according to the ordinary rules of construction. The vice-chancellor, in his opinion in this case, says that the right given to the widow under our statute is not a life estate, but may bo accurately described as a privilege in the nature of a tenaucy at will. In McLaughlin v. McLaughlin, 7 C. E. Gr. 505, 510, the chief-justice says that “ it is but an amplification of the provision of Magna Charta, beneficially extending the term of the widow and expressly declaring that she shall hold the premises free of rent.” Vice-Chancellor Dodd, in Bleecker v. Hennion, 8 C. E. Gr. 123, 125, says: “The widow’s possession or quarantine is an incident only to her dower, belonging to that right and inseparable from it. It is a privilege preceding but in no wise preventing or impeding the assignment or disposal of dower.” In neither case is an attempt made to define the act by any terms known in the law, but to construe and apply its words according to their evident intention to the facts in hand. "Was it then the intention of the legislature, as expressed in this act, that the widow, during her possession, before the assignment of dower, should pay taxes, keep down encumbrances and make repairs of the house of her husband ? The statute puts no such burden upon her; it says she is not liable
The maxim “Qui sentit commodum sentiré debet et onus” which has been sometimes quoted in this connection, is not applicable to cases which are regulated by statute law, and has therefore no efficiency in the present case, where the widow’s right is purely statutory and limited.
The decree will be affirmed, with costs.
Decree unanimously affirmed.