Dower becomes consummate upon the death of a spouse. It does not amount to an estate in the land until assigned. Dower is a right in action until assigned. Dower consummate is some sort of right vested on the wife immediately upon the death of her husband. It is clearly established that this right is not an interest in the real estate but a right to sue for an interest in the real estate; a thing in action which at common law could not be the subject of assignment, nor could the same be levied on and sold to satisfy debts. When dower is assigned the seisin of the person to whom assigned, relates to the time of the death of the spouse who owned the land[i].
The widow’s dower could be assigned to the widow by metes and bounds, through an apportionment of rents, or by an assignment of her interest through the sale of the property[ii]. After the widow’s dower has been assigned and allotted, or after the portion of her husband’s estate in which she is to enjoy her dower has been legally designated, she is entitled to immediate possession thereof. Her dower rights cease altogether as to the other lands of her husband. She has the usual title and rights as to her dower lands and is subject to the usual burdens incident to an estate for life[iii].
After the death of a husband, the widow is sui juris. The doctrine of estoppel applies to her acts as to those of other persons. After the death of her husband, the widow may bar her right of dower without any formal release[iv]. The very nature of this claim of dower precludes an assertion that the wife is estopped by virtue of her husband’s acts and representations. The claim of dower is a claim against the estate of the husband rather than a claim under the estate of the husband[v]. A married woman during the lifetime of her husband may by covenant in writing for valuable consideration legally bind herself not to claim dower out of her husband’s lands. However, to have such effect the covenant must be entirely free from doubt, clear, positive, and express in its terms. Irrespective of the nature of the proof and of the consideration, a verbal agreement will not estop her, nor bar her claim of dower[vi].
Unless dower is set apart from the widow in her lifetime, neither she nor her personal representative is ever entitled to rents and profits of land in which she may have been dowerable. An exception is that which accrued from her quarantine rights. As soon as dower may be assigned in her lifetime, her right in the part included in the assignment vests in her as of the date of the death of her husband. From then until the date of assignment, she has thereby acquired an equitable right in the net rents and profits equal to a proper proportionate share of it all. After the date of the assignment, the right to the use, income and profits on that which is assigned becomes legal, vested, and enforceable at law[vii].
The Right of dower not assigned may be released to one having an interest in the fee of the land. The right cannot be sold by the dowress, nor upon execution against her. When assigned it becomes a life estate. It may then be sold and transferred as any other life estate in lands, either by the dowress or upon execution against her[viii]. In an action for dower, the widow may recover in the same action damages for withholding her dower to the amount of one-third of the annual value of the mesne profits of the property, with interest, to be computed from her husband’s death. No previous demand of dower need be made of the heir in such an action[ix].
The widow’s dower abates where the properties of her deceased husband had not been sold at the time of the widow’s death. Therefore, the gross sum in lieu of dower was not “capable of ascertainment.” Filing an action prior to the widow’s death to have her interest calculated and paid from the proceeds of sale of her deceased husband’s properties alone is not sufficient to vest her dower interest[x].
[i] Lajoie v. Bellomy, 129 W. Va. 685 (W. Va. 1947)
[ii] In re Dower Interest of Estate of Wheaton, 341 N.J. Super. 203 (App.Div. 2001)
[iii] Moore v. Price, 98 Fla. 276 (Fla. 1929)
[iv] Heisen v. Heisen, 145 Ill. 658 (Ill. 1893)
[v] Wax v. Wilson, 101 So. 2d 54 (Fla. Dist. Ct. App. 3d Dist. 1958)
[vi] Tuten v. Almeda Farms, 184 S.C. 195 (S.C. 1937)
[vii] Hale v. Cox, 240 Ala. 622 (Ala. 1941)
[viii] Petefish, Skiles & Co. v. Buck, 56 Ill. App. 149 (Ill. App. Ct. 1894)
[ix] Ryder v. Kennedy, 224 N.Y. 407 (N.Y. 1918)
[x] In re Dower Interest of Estate of Wheaton, 341 N.J. Super. 203 (App.Div. 2001)