Whether it will be defeated by a conditional limitation by way of executory devise or shifting use, is not yet fully settled. Coke, Litt. 241 a, Butler's note, 170 ; Sugden, Pow. 333 ; Park, Dow. 168-186 ; 3 Bos. & P. 652 ; 2 Atk. Ch. 47 ; 1 Leon. 167. But it seems that the weight of American authority is in favor of sustaining dower out of such estates. 9 Penn. St. 190. See 1 Washburn, Real Prop. 216.
Dower will be defeated by operation of a collateral limitation : as, in the case of an estate to a man and his heirs so long as a tree shall stand, and the tree dies. 3 Pres ton, Abstr. 373 ; Park, Dow. 163 ; 4 Kent, Comm. 49.
In some states it will be defeated by a sale on execution for. the debts of the husband. 5 Gill, Md. 94 ; 12 Serg. & R. Penn. 18 ; 8 Penn. St. 120 ; 1 Humphr. Tenn. 1; 11 Mo. 204 ; 19 id. 621 ; 3 Dev. No. C. 3. In Missouri it is defeated by a sale in partition. 22 Mo. 202. See 22 Wend. N. Y. 498 ; 2 Edw. Ch. N. Y. 577 ; 3 id. 500.
It is defeated by a sale for the,payment of taxes. 8 Ohio St. 430.
It is also defeated by exercise of the right of eminent domain duiing the life of the husband. Nor has the widow the right of compensation for such taking. The same is true of land dedicated by her husband to public use. 2 Ohio, 25 ; 3 Ohio St. 24; 4 Sandf. N. Y. 456 ; 9 N. Y. 110.
10. How dower may be barred. A divorce from the bonds of matrimony was at common law a bar to dower, 2 Blackstone, Comm. 130; 4 Kent, Comm. 54 ; 4 Barb. N. Y. 192 ; but the woman's right to dower or something equivalent to it is reserved by statutes in most of the states, if she is the innocent party. Bishop, Marr. & Div. 0 663 ; 6 Du. N. Y. 102.
By the early statute of Westminster 2d, a wife who eloped and lived in adultery with another man forfeited her dower-right. This provision has been re-enacted in several of the states, 9 Mo. 555; Mo. Rev. Stat. 1855, 672, and recognized as common law in others.
2 Brock. Va. 256 •, 3 N. H. 41 ; 13 Ired. No. C. 361; 4 Dane, Abr. 676 : contra, 24 Wend. N. Y. 193.
The widow of a convicted traitor could not recover dower, 2 Blackstone, Comm. 130, 131; but this principle is not recognized in this country. Williams, Real Prop. 103, u.
Nor does she in this country, as at common law, forfeit her dower by conveying in fee the estate assigned to her. 4 Kent, Comm. 82;
Williams, Real Prop. 121, 125, n.; 1 B. Monr. Ky. 88.
The most common mode formerly of barring dower was by jointure. 1 Washburn, Real Prop. 217 ; 14 Gratt. Va. 518 ; 8 Mo. 22 ; 19 id. 469 ; 23 id. 561 ; 14 Ohio St. 610 ; 8 Conn. 79.
Now it is usually done by joining with her husband in the act of conveying the estate. Once this was done by levying a fine, or suf fering a recovery, 4 Kent, Comm. 51 ; 2 stone, Comm. 137 ' • now by deed executed in concurrence with her husband and acknow• ledged in the form required by statute, Wil liams, Real Prop. 189, which latter is the mode prevailing in the United States.
11. The husband must usually join in the act. 5 B. Monr. Ky. 352 ; 3 Dan. Ky. 316 ; 19 Penn. St. 361; 3 Mass. 353; 8 Pick. Mass. 532 ; 6 Cush. Mass. 196 ; 14 Me. 432 ; 33 id. 396: contra, 2 N. H. 507.
She should be of age at the time. 2 J. J. Marsh. Ky. 359 ; 1 B. Monr. Ky. 76 ; 6 Leigh, Va. 9: 1 Barb. N. Y. 399 ; 16 Wend. N. Y. 617 ; 8 Miss. 437 ; 10 Ohio St. 127.
Words of grant will be sufficient although no reference is made in the deed to dower eo nomine. 12 How. 256 ; 16 Ohio St. 236.
In most of the states her deed must be ac knowledged, and that, too, in the form pointed 'out by statute, 6 Ohio St. 510 ; 2 Binn. Penn. 341 ; I. Bail. So. C. 421 ; 1 Blackf. Ind. 379 ; which must appear in the certificate. 13 Barb. N. Y. 50.
She cannot release her dower by parol. See 5 T. B. Monr. Ky. 57 ; 3 Zabr. N. J. 62. Aparol sale of lands in which the husband delivers possession does not exclude dower.
3 Sneed, Tenn. 316.
It has been held that she may bar her claim for dower by her own acts operating by way of estoppel. 2 Ohio, 506 ; 1 Rand. Va. 344 ; 2 Ohio St. 511 ; 4 Paige, Ch. N. Y. 94 ; 12 Serg. & R. Penn. 18 ; 8 Penn. St. 199 ; 1 Ind. 354 ; 5 Gill, Md. 94. See 22 Ala. N. s. 104 ; 26 id. 547 • 2 Const. So. C. 59 ; 8 Penn. St. 359 ; 1 Rich. Eq. So. C. 222.
A release of dower has been presumed after a long lapse of time. 4 N. H. 321 ; 3 Yeates, Penn. 507.
At common law there was no limitation to the claim for dower. 4 Kent, Comm. 70 ; Park, Dow. 311. As to the statutes in the different states, see 1 Washburn, Real Prop. 217.