Upon the doctrine of dos de dote, see 1 Washburn, Real Prop. 209.
In some states she has the right to elect to take half of the husband's estate in lieu of dower under certain contingencies. 28 Mo. 293-300.
It seems that a contract to marry on con dition that the wife should receive no portion of the husband's lands may be valid, 9 Rich. Eq. So. C. 434.
12. How and by whom dower may be as signed. Her right to have dower set out to her accrues immediately upon the death of her husband ; but until it is assigned she has no right to any specific part of the estate. 2 Blackstone, Comm. 139. She was allowed by Magna Charts to occupy the principal mansion of her husband for forty days after his death, if it was on dowable lands. This right is variously recognized in the states. Mo. Rev. Stat. (1855) 672 ; 2 Mo. 163; 16 Ala. N. s. 148 ; 20 id. 662 ; 7 T. B. Monr. Ky. 337 ; 5 Conn. 462 ; 1 Washburn, Real Prop. 222, note. In Missouri and several other states, she may remain in possession of and enjoy the principal mansion-house and mes suages thereto belonging till dower has been assigned. 5 T. B. Monr. Ky. 561 ; 4 Blackf. Ind. 331. This makes her tenant in common with the heir to the extent of her right of dower; and an assignment only works a severance of the tenancy. 4 Kent, Comm. 62 ; 2 Mo. 163.
There were two modes of assigning dower: one by " common right," where the assign ment was by legal process; the other "against common right, which rests upon the widow's assent and agreement.
13. Dower of " common right" must be assigned by metes and bounds, where this is possible, unless the parties agree to a differ ent form. 2 Penn. N. J. 521 ; 1 Rolle, Abr. 683 ; Style, 276 ; Perkins, 407.
If assigned " against common right," it must be by indenture to which she is a party. Coke, Litt. 34 b; 1 Pick. Mass. 189, 314; 1 Roper, Husb. & W. 410 ; 1 Bright, Husb. & W. 377.
Where assigned of common right, it must be unconditional and absolute, Coke, Litt. 34 b, n. 217 ; 1 Rolle, Abr. 682 ; and for her life. 1 Bright, Husb. & W. 379.
Where it is assigned not by legal process, it must be by the tenant of the freehold. Coke, Litt. 35 a. It may be done by an infant, 2 Blackstone, Comm. 136 ; 1 Pick. Mass. 314; 2 Ind. 336 ; or by the guardian of the heir. 2 Blackstone, Comm. 136 ; 37 Me. 509.
As between the widow and heir, she takes her dower according to the value of the pro perty at the time of the assignment. 5 Serg. & R. Penn. 290 ; 4 Kent, Comm. 67-69; 4 Miss. 360. 15 Me. 371 ; 2 Harr. Del. 336 ; 13 III. 483 ; 9 Mo. 237.
14. As between the widow and the hus band's alienee, she takes her dower according to the value at the time of the alienation. 6 Johns. Ch. N. Y. 258 ; 2 Edw. Ch. N. Y. 577; 4 Leigh, Va. 498. This was the ancient and well-established rule. 4 Kent, Comm. 65 ; 2
Johns. N. Y. 484 ; 9 Mass. 218 ; 3 Mae. C. C. 347. But in this country the rule in respect to the alienee seems to be that if the land has been enhanced in value by his labor and improvements, the widow shall not share in these, 5 Serg. & R. Penn. 289 ; 9 Mass. 218 ; 3 Mas. C. C. 347 ; 4 Leigh, Va. 498 ; 2 Blackf. Ind. 223 ; 4 Miss. 360 ; 10 Ohio St. 498 ; 16 Me. 80 ; 9 Ala. N. s. 901 ; 10 Md. 746 ; 13 Ill. 483 ; if it has been enhanced by extraneous circumstances, such as the rise and imProve ment of property in the neighborhood, she is to have the full benefit of this. 5 Blackf. Ind. 406 ; 3 Mas. C. C. 375. 6 McLean, C. C. 422 ; 5 Call, Va. 433 ; 1 Md. Ch. Dec. 452; Wil liams, Real Prop. 191, note.
There seems to be no remedy for her now in either country where the land has deterio rated in value by the waste and mismanage ment of the alienee or by extraneous circum stances, 10 Mo. 746 ; 5 Serg. & R. Penn. 290; 3 Mas. C. C. 368 ; 5 Blackf. Ind. 406 ; 1 Md. Ch. Dec. 452; but she must be content to take her dower, in the property as it was at the time of her husband's death, when her right first became consummate. 1 Washburn, Real Prop. 239.
As to the remedies afforded both by law and equity for the enforcement of dower, see 1 Washburn, Real Prop. 226.
15. Nature of the estate in dower. Until the death of her husband, the wife's right of dower is not an interest in real estate of which value can be predicated. 9 N. Y. 110. And although on the death of her husband this right becomes consummate, it remains a chose in action till assignment. 4 Kent, Comm. 61 ; 1 Barb. N. Y. 500 ; 5 id. 438 ; 32 Me. 424; 2 Cow. N. Y. 651; 5 J. J. Marsh. Ky. 12 ; 10 Mo. 746.
Until assignment, she has no estate which she can convey or which can he taken on execution for her debts. 2 Keen, 527 ; 1 Barb. Ch. N. Y. 500 ; 4 Paige, Ch. N. Y. 448 ; 9 Miss. 489 ; 1 Dev. & B. No. C. 437 ; 14 Mass. 378 : contra, 10 Ala. N. s. 900.
But where she does sell or assign this right of action, equity will protect the rights of the assignee and sustain an action in the widow's name for his benefit. 4 Rich. So. C. 516 ; 10 Ala. N. s.,900 ; 7 Ired. Eq. No. C. 152.
She can release her claim to the one who is in possession of the lands, or to whom she stands in privity of estate. 11 III. 384 ; 13 id. 483 ; 17 Johns. N. Y. 167 ; 32 Me. 424; Park, Dow. 335 ; 32 Ala. N. s. 404.
But as soon as the premises have been set out and assigned to her, and she has entered upon them, the freehold vests in her by virtue of her husband's seisin. Coke, Litt. 239 a; 4 Mass. 384; 6 N. Y. 394; 4 Dev. & B. No. C. 442.
Her estate is a continuation of her hus band's by appointment of the law. 1 Pick. Mass. 189: 4 Me. 67 ; Park, Dow. 340. See Scribner, Dower (1864).