Dower is a statutory right. It does not rest upon any right of contract between the parties. It is entirely subject to legislative control. Dower is not a freehold estate. Prior to the assignment of her dower, the widow has no vested free-hold estate under the common law. She is not seized of any part of her deceased husband’s lands. However, her right is for most purposes nothing more than a right of action. The right of dower before assignment is not an estate, but a mere right of action. Therefore, a widow cannot maintain an action for partition against her husband’s co-tenant. Until the assignment of dower, a widow has no right under her claim of dower to enter and occupy any portion of her husband’s estate, unless such right is given by statute. Dower unassigned is a mere right of action and nothing more. Dower before assignment is purely an equitable right. It confers no specific estate or interest in the land that can be sold or assigned. The right of dower in a married woman is a mere intangible, inchoate, and contingent expectancy. In a widow, the right of dower is not an estate in the land until it is assigned. However, it is a right resting in action only and cannot be alienated[i].
The inchoate right of a wife is always subject to any encumbrance or infirmity in the husband’s title existing at the time he became seized[ii]. Where the husband has mortgaged his lands at a date subsequent to the marriage, his wife is dowerable only of the equity of redemption. The burden is to be apportioned between the widow and the owner of the inheritance if the lands of the husband are subject to an encumbrance paramount to dower. If the husband executes a mortgage before marriage or in conjunction with the wife after marriage, the widow can only have her dower subject to such mortgage. If the mortgage is foreclosed and a sale is made, the widow’s rights are barred except to the surplus after satisfaction of the mortgage. If the purchaser of the equity of redemption takes an assignment of the mortgage, the debt is not thereby merged or extinguished. The widow is entitled to her dower only in the equity of redemption, subject to the mortgage[iii].
Quarantine is an incident of dower. These rights perish with the death of the widow. A widow’s death terminates her right to recover land as dower. No such right is transmissible. If she or the heirs at law wish to change it, they may do so by causing an assignment of dower. The quarantine rights do not supersede her dower rights. She has no standing at law to a share of the rents on lands in which she has such right before dower is assigned. Such right is available in equity, after the dower has been assigned, extending back to the date of the death of her husband[iv].
The wife cannot have quarantine in a house which did not belong to her husband because she has no better title than he had at the time of his death. Quarantine is distinct from dower with regards to this requirement of possession. The husband’s alienation of the property without his wife’s release or bar of her dower right does not affect the dower interest[v].
Statutes conferring the right of dower are substitutes for the common law right of quarantine. The purposes of such statutes are:
- to provide for the immediate needs of the widow; and
- to compel the heirs or grantees to assign her dower interest at the earliest possible moment.
Such statutes should be liberally construed because they are intended primarily for the protection of the widow and children[vi]. An abandonment of the legal right of quarantine should be deemed to occur only where:
- A person entitled to the right of quarantine has actually abandoned possession of the property subject to the right;
- Prior to, or at the time of, abandoning possession of the property the person knew of the existence of his right of quarantine;
- After abandoning possession of the property the person entitled to quarantine has demonstrated a lack of intention to repossess it; and
- The person entitled to quarantine has demonstrated an apparent indifference to what would become of the property[vii].
The right to dower does not accrue until the death of the spouse. Therefore, the statute of limitations governing dower claims does not begin to run against the surviving spouse until the other spouse’s death[viii].
[i] Lape v. Lape, 31 Ohio Dec. 188 (Ohio C.P. 1920)
[ii] Forte v. Caruso, 336 Mass. 476 (Mass. 1957)
[iii] PLATT’S APPEAL, 56 Conn. 572 (Conn. 1888)
[iv] Hale v. Cox, 240 Ala. 622 (Ala. 1941)
[v] Wilson v. Wilson, 292 S.C. 362 (S.C. Ct. App. 1987)
[vi] In re Stroh Estate, 151 Mich. App. 513 (Mich. Ct. App. 1986)
[vii] Cutone v. Cutone, 169 W. Va. 79 (W. Va. 1982)
[viii] Ginsburg v. Ginsburg, 353 Ark. 816 (Ark. 2003)