A. 776, 31 Am. St. Rep. 883. See 2 Can. L.
T. 15.
In the case of an exchange of lands, the widow may claim dower in either, but not in both; Co. Litt. 31 b; if the interests are unequal, then in both; Wilcox v. Randall, 7 Barb. (N. Y.) 633; Mosher v. Mosher, 32 Me. 412; Cass v. Thompson, -1 N. H. 65, 8 Am. Dec. 36.
She is entitled to dower in mines belong ing to her husband, if opened by him in his lifetime on his own or another's land ; 1 Taunt. 402; Coates v. Cheever, 1 Cow. (N. Y.) 460; Lenfers v. Henke, 73 Ill. 405, 24 Am. Rep. 263 ; Moore v. Rollins, 45 Me. 493. See In re Seager's Estate, 92 Mich. 186, 52 N. W. 299, where she was held to be entitled whether the mines were open ed before or after her husband's death; Black v. Min. Co., 49 Fed. 549; id. 52 Fed. 859, 3 C.-C. A. 312. See also Seager v. Mc Cabe, 92 Mich. 186, 52 N. W. 299, 16 L. R.
A. 247. But in Marshall v. Mellon, 179 Pa. 371, 36 Atl. 201, 35 L. R. A. 816, 57 Am. St. Rep. 601 she was held to have no right to operate for oil or gas, where such operations had not commenced during the lifetime of her husband. Where a statute gave the sur viving husband or wife a one-third interest in the real estate of the other, the life ten ant is entitled only to the income upon one third of the oil produced; Swayne v. Oil Co., 98 Tex. 597, 86 S. W. 740, 69 L. R. A. 986, 8 Ann. Cas. 1117.
She had the right of dower in various species of Incorporeal hereditaments : as, rights of fishing, and rents; Co. Litt. 32 a ; 2 Bla. Com. 132 ; Chase's Case, 1 Bland, Ch. (Md.) 227, 17 Am. Dec. 277; but the rents should be estates of inheritance; 2 Cruise, Dig. 291.
In most of the states she Is dowable of wild lands; Chapman v. Schroeder, 10 Ga.
321; Macaulay's Ex'r v. Land Co., 2 Rob. (Va.) 507; Hickman v. Irvine's Heirs, 3 Dana (Ky.) 121; Allen v. McCoy, 8 Ohio, 418; Pike v. Underhill's Adm'r, 24 Ark. 124; Brown v. Richards, 17 N. J. Eq. 32 ; Joyner v. Speed, 68 N. C. 236, contra, Kuhn v. Kaler, 14 Me. 409; Johnson v. Perley, 2 N. H. 56, 9 Am. Dec. 35.
She has no right of dower in a pre-emption claim; Well's Guardian v. Moore, 16 Mo. 478 ; Davenport v. Farrar, 1 Scam. (Ill.)
314.
At law there was nothing to prevent her from having dower in lands which her hus band held as trustee. But, as she would take it subject to the trust, courts of equity were in the habit of restraining her from claiming her dower in lands which she would be compelled to hold entirely to an other's use, till it was finally established, both in England and the United States, that she is not entitled in such case to dower; Firestone v. Firestone, 2 Ohio St. 415; Bart lett v. Gouge, 5 B. Monr. (Ky.) 152; Park, Dow. 105.
At common law she was not dowable of the estate of a cestui que trust; 2 Sch. & L. 387 ; 4 Kent 43 ; Lenox v. Notrebe, Hempst. 251, Fed. Cas. No. 8,246c. See Watson's Es tate, 139 Pa. 461, 22 Atl. 638. But by the Dower Act this restriction was removed in England ; 3 & 4 Will. IV. c. 105; 1 Spence, Eq. Jur. 501. The common-law rule that a widow could only have dower in the legal estates of the husband has been either 'ex pressly or impliedly changed by statute in the majority of states, and she now has a right of dower In his equitable estates as well, but only in those of which he died seis ed; In re Ransom, 17 Fed. 233; Morse v. Thorsen, 78 Ill. 604; and if the husband has aliened an equitable estate, although his wife may not have consented, the dower is defeated; Taylor v. Kearn, 68 Ill. 341; Mil ler v. Stump, 3 Gill (Md.) 304. In Delaware a widow is not dowable out of an equitable estate of her deceased husband, except in intestate lands; Cornog v. Cornog, 3 Del. Ch. 407, but the law upon this subject is not uniform; Stelle v. Carroll, 12 Pet. (U. S.) 201, 9 L. Ed. 1056; Hamlin v. Hamlin, 19 Me. 141; Shoemaker v. Walker, 2 S. & R. (Pa.) 554; Rowton v. Rowton, 1 Hen. & M. (Va.) 92. In some states, dower in equi table estates is given by statutes; while in others the severe common-law rule has not been strictly followed by the courts; Hawley v. James, 5 Paige, Ch. (N. Y.) 318; Lawson v. Morton, 6 Dana (Ky.) 471; Lewis v. James, 8 Humphr. (Tenn.) 537; Thompson v. Thompson, 46 N. C. 430; Miller v. Stump, 3 Gill (Md.) 304.