The right to dower does not depend on the existence of the family relation at the death of the husband and is not barred by deser tion; Nye's Appeal, 126 Pa. 341, 17 All. 618, 12 Am. St. Rep. 873.
Upon the doctrine of dos de dote, see 1 Washb. R., P. 209.
In some states the wife may elect to take half of the husband's estate in lieu of dower under certain contingencies; Welch v. An derson, 28 Mo. 293 ; or she may accept a devise in lieu dower ; Nelson• v. Brown, 66 Hun 311, 20 N. Y. Supp. 978; Stone v. Vandermark, 146 I11. 312, 34 N. E. 150; Ban nister v. Bannister, 37 S. C. 529, 16 S. E. 612; Goodrum v. Goodrum, 56 Ark. 532, 20 S. W. 353.
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; Spiva v. Jeter, 9 Rich. Eq. (S. C.) .434.
How and by whom dower may be assigned. Her right to have dower set out to her ac crues immediately upon the death of her husband; but until it is assigned she has no right to any specific part of the estate; 2 Bla. Com. 139. She was allowed by Magna Carta to occupy the principal mansion of her husband for forty dayi after his death, if it were on dowable lands. This right is va riously recognized in the states ; Stokes v. McAllister, 2 Mo. 163 ; Doe v. Carrol, 16 Ala. 148; Chaplin v. Simmons' Heirs, 7 T. B. Monr. (Ky.) 337; Stedman v. Fortune, 5 Conn. 462. In some states, she may remain In possession of the principal mansion-house and messuages thereto belonging until dower has been assigned; Grimes v. Wilson, 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 62; Stokes v. McAllister, 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 rested upon the widow's assent and agreement.
Dower of "common right" must be assign ed by metes and bounds, where this is possi ble, unless the parties agree to a different form ; 2 Penning, 521; 1 Rolle, Abr. 683 ; Style 276; Perkins 407.
If assigned "against common right," it must be by indenture to which she is a par ty ; Co. Litt. 34 b ; Jones v. Brewer, 1 Pick.
(Mass.) 314.
Where assigned of common right, it must be unconditional and absolute; Co. 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; Co. Litt. 35 a. It may be done by an infant ; 2 Bla. Com. 136; McCormick v. Taylor, 2 Ind. 336; or by the guardian of the heir; 2 Bla. Com. 136; Young v. Tarbell, 37 Me. 509. Dower may be assigned in partition; Thom as v. Thomas, 73 Ia. 657, 35 N. W. 693.
As between the widow and heir, she takes her dower according to the value of the prop erty at the. time of the assignment ; Thomp son v. Morrow, 5 S. & R. (Pa.} 290, 9 Am. Dec. 358 ; Wooldridge v. Wilkins, 3 How. (Miss.) 360; Mosher v. Mosher, 15 Me. 371; Green v. Tennant, 2 Harr. (Del.) 336; Sum mers v. Babb, 13 Ill. 483.
As between the widow and the husband's alienee, she takes her dower according to the value at the time of the alienation ; Hale v. 'James, 6 Johns. Ch. (N. Y.) 258, 10 Am. Dec. 328; Tod v. Baylor, 4 Leigh (Va.) 498. This was the ancient and well-established rule; Humphrey v. Phinney, 2 Johns. (N. Y.) 484; Catlin v. Ware, 9 Mass. 218, 6 Am. Dec. 56. But in this country the rule in re spect to the alienee seems now to be that if the land had been enhanced in value by his labor and improvements, the widow shall not share• in these; Thompson v. Morrow, 5 S. & R. (Pa.) 289, 9 Am. Dec. 358; Catlin v. Ware, 9 Mass. 218, 6 Am. Dec. 56; Tod v. Baylor, 4 Leigh (Va.) 498; Wilson v. Oat man, 2 Blackf. (Ind.) 223; Barney V. Frowner, 9 Ala. 901; Baden v. McKenny, 7 Mackey (D. C.) 268; Felch v. Finch; 52 Ia. 563, 3 N. W. 570; McGehee v. McGehee, 42 Miss. 747; if it has been enhanced by ex traneous circumstances, such as the rise and improvement of property in the neighbor hood, she is to have the full benefit of this ; Smith v. Addleman, 5 Blackf. (Ind.) 406; Powell v. M'f'g Co., 3 Mas. 375, Fed. Cas. No. 11,356; Johnston v. Vandyke, 6 McLean, 422, Fed. Cas. No. 7,426; Wms. R. P. 191, n.