2 Grant 84 | Pa. | 1853
The opinion of the court was delivered by
— On the general principles long recognized in
The question on this record is, whether a married woman’s interest in her husband’s lands is saved by this proviso ? Whether it is a “ lawful right, valid by the laws” of this State, within the meaning of the Act of Congress ?
At common law, marriage, seisin and death of the husband were necessary to the consummation of dower ; but the husband need not die seised, for the wife’s right having vested on the marriage, overreaches alienation by him. Seisin, in law or fact, by the husband, any time during coverture, vests in the wife a right to dower. The right a dowress has to her dower, said the master of the rolls, in Lord Dudley’s case, Prec. in Chanc. 244, is not only a legal right, so adjudged at law, but is a moral right to be provided for, and to have a maintenance and sustenance out of her husband’s estate, to live upon; she is therefore, in the care of the law; and upon this moral law, is the law of England founded, as to the right of dower. So, by M‘Kean, Ch. J"., in Kennedy v. Nedrow, 1 Dal. 418, dower is a legal, an equitable, and a moral right. It is favored in a high degree by law, and next to life and liberty, held sacred. Again by Shippen, P. J., in Graff v. Smith, 1 Dal. 484, a widow’s right of dower commences with her marriage; it is held so sacred a right, that no judgment, recognizance, mortgage, or any other incumbrance whatever, made by the husband after the marriage, .can, at common law, affect her right of dower. Even the king’s debt cannot affect her. The only modification of these principles that we have suffered, is in treating the rights of creditors as paramount, and permitting them, through a judicial sale, to bar dower ; a policy which has been often questioned, and which is not to extended beyond established limits. No assignment or transfer by the husband, even for the payment of debts, and though madeX in the quasi-judicial proceedings of insolvent debtors, hap-feeji permitted to defeat the widow. Keller v. Michael, 2 Yeates, 300; Eberle v. Fisher, 1 H. 526.
And now to wit: the 15th day of December, 1853, this cause came on to be heard, and was argued by counsel, and upon consideration by the court it is ordered and adjudged, that the judgment of the Court of Common Pleas, in the case stated, rendered, be reversed, annulled and set aside, and that judgment be entered here for the plaintiff in said case stated, for costs and damages in the satisfaction of her dower in the premises mentioned and described, in said case stated, whereof her husband, David Worcester, was lawfully seised in his life-time; and that the record be remitted to the Common Pleas of Beaver county, with instructions to said court to issue a writ of inquiry for the assessment of said damages, and to proceed therein according to law.