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to this question, did not arise and was not given in Humphrey v. Phinney and it may be doubted whether the statute has not received too strict a construction in the subsequent cases. The better and the more reasonable. general American doctrine upon this subject I apprehend to be, that the improved value of the land, from which the widow is to be excluded in the assignment of her dower, even as against a purchaser, is that which has arisen from the actual labour and money of the owner, and not from that which has arisen from extrinsic or general causes. The New-York revised statutes have declared, that if the husband dies seised, the widow shall recover damages for withholding her dower, and the damages shall be one third of the annual value of the mesne profits of the lands in which she shall recover dower, to be estimated from the time of the husband's death in the suit against the heirs, and from the time of the demand of her dower in the suit against the alienee of the heir, or other persons, and not to exceed six years in the whole. No damages are to be estimated for the use of any permanent improvements made after the death of the husband. A more necessary provision respecting damages as against the alienee of the husband,

a 2 Johns. Rep. 484.

b In the case of Powell v. M. & B. Man. Co. 3 Mason's Rep. 373. it was suggested, that in Hale v. James, 6 Johns.Ch.Rep. 258, the Chancellor adhered to the rule that the value of the land at the time of alienation, was to be taken and acted upon as a clear rule of the common law, and that the common law authorities do not warrant any such doctrine. I am rather of the opinion that they do warrant the doctrine to the extent the Chancellor meant to go, viz. that the widow was not to be benefited by improvements made by the alienee. That position does not seem to be denied, and in Hale v. James, as well as in Humphrey v. Phinney, nothing else was decided, for nothing else was before the court. In the former case, the Chancellor did not mean to give any opinion on the distinction between the increased value, arising from the acts of the purchaser and from collateral causes; and so he expressly de clared.

₫ Vol. i. 742. sec. 19, 20, 21. 22.08.

(for on that point there is a difference between the decisions in this and in other states,) is altogether omitted.

When the certainty of the estate belonging to the widow as dower, is ascertained by assignment, the estate does not pass by the assignment, but the seisin of the heir is defeated ab initio, and the dowress is in, in intendment of law, of the seisin of her husband, and this is the reason that neither livery nor writing is essential to the validity of an assignment in pais. Every assignment of dower by the heir, or by the sheriff on a recovery against the heir, implies a warranty so far, that the widow, on being evicted by title paramount, may recover in value a third part of the two remaining third parts of the land whereof she was dowable." In Bedingfield's case it was held, that the widow, in such a case, was to be endowed anew of other lands descended to the heir, but where the assignment was by the alienee of the husband, and she was impleaded, she was not to vouch the alienee to be newly endowed, because of the greater privity in the one case than in the other. It is likewise provided by the new statute law of New-York, that upon the acceptance of an assignment of dower by the heir, in satisfaction of the widow's claim upon all the lands of her husband, it may be pleaded in bar of any future claim on her part for dower, even by the grantee of the husband.

In the English law, the wife's remedy by action for her dower, is not within the ordinary statutes of limitations, but a fine levied by the husband, or his alienee or heir, will bar her by force of the statute of non-claims, unless she brings her action within five years after her title accrues, and her disabilities (if any) removed. In South Carolina

e

a Co. Litt. 35. a.

b Perkins, seç. 419. Co. Litt. 384. b.

c 9 Co. 176.

d N. Y. Revised Statutes, vol. i. 793. sec. 23.

e Davenport v. Wright, Dy. 224. a. Sheppard's Touch. by Preston, vol. i. 28. 32. Park on Dower, 311.

it was held, in Ramsay v. Dozier, and again, in Boyle v. Rowand, that time was a bar to dower, as well as to other claims. But in the English law there is no bar, and as to the account against the heir for the mesne profits, the widow is entitled to the same from the time her title accrues; and unless some special cause be shown, courts of equity carry the account back to the death of the husband. The New-York Revised Statutes have given a precise period of limitation, and require dower to be demanded within twenty years from the time of the death of the husband, or from the termination of the disabilities therein mentioned, one of which is imprisonment on a criminal charge or conviction.e

a 1 Tred. Con. Rep. S. C. 112.

b 3 Dess. Ch. Rep. 555.

c Oliver v. Richardson, 9 Vesey, 222. See also, Swaine v. Perine, 5 Johns. Ch. Rep. 482.

d Vol. i. 742. sec. 18.

e In the report of the English real property commissioners in 1829, it was proposed, that no suit for dower should be brought, unless within twenty years next after the death of the husband, and that an account of the rents and profits of the dowable land should be limited to six years next before the commencement of the suit. This is the rule precisely in the N. Y. Revised Statutes, (see supra,) and in vol. ii. 303. 343. the writ of dower, as well as all other real actions, is abolished, and the action of ejectment substituted and retained, after dismissing all the fictitious parts of it. The real actions are still retained in several of the United States. In Massachusetts in particular, the writ of right, and the possessory real actions, are not only preserved, but they are in active and familiar use in all their varied forms and technical distinctions, after having become simplified, and rendered free from every troublesome incumbrance that perplexed the ancient process and pleadings. Under the free, liberal, and plastic genius of that republic, the pleadings remain admirable specimens of simplicity, brevity and precision, and display their clear, strong, and accustomed logic. It is a singular fact, a sort of anomaly in the history of jurisprudence, that the curious inventions, and subtle, profound, but solid distinctions which guarded and cherished the rights and remedies attached to real property in the feudal ages, should have been transported, and remain rooted, in a soil that never felt the fabric of the feudal system; whilst, on the other hand, the English parliamentary commissioners, in their recent report, have pro

Dower may be recovered by bill in equity, as well as by action at law. The jurisdiction of Chancery over the claim of dower, has been thoroughly examined, clearly asserted, and definitively established. It is a jurisdiction concurrent with that at law, and when the legal title to dower is in controversy, it must be settled at law; but if that be admitted or settled, full and effectual relief can be granted to the widow in equity, both as to the assignment of dower, and the damages. The equity isdiction was so well established, and in such exercise in England, that Lord Loughborough said, that writs of dower had almost gone out of practice. The equity jurisdiction has been equally entertained in this country, though the writ of dower unde nihil habet, is the remedy by suit most in practice. The claim of dower is considered, in New-Jersey, which has a distinct and well-organized equity system, as emphatically, if not exclusively, within the cognizance of the common law courts.c

In addition to the legal remedies at law and in equity. the surrogates in the several counties in this state, are empowered and directed, upon the application either of the widow, or of the heirs or owners, to appoint three freeholders to set off by admeasurement the widow's dower.<

posed a sweeping abolition of the whole formidable catalogue of writs of right, writs of entry, writs of assize, and all the other writs in real action, with the single exception of writs of dower, and quare impedit. This we should hardly have expected in a stable and proud monarchy, heretofore acting upon the great text authority of Lord Bacon, that "it were good if men, in their innovations, would follow the example of time itself, which, indeed, innovateth greatly, but quietly, and by degrees scarce to be perceived."

a Goodenough v. Goodenough, Dickens, 795. Curtis v. Curtis, 2 Bro. 620. Mundy v. Mundy, 4 Bro. 295. 2 Vesey, jun. 122. S. C. b Swaine v. Perine, 5 Johns. Ch. Rep. 482. Greene v. Greene, 1 Hammond's Rep. 535. Dr. Tucker, note to 2 Blacks. Com. 135. n. 19.

c Harrison v. Eldridge, 2 Halsted, 401, 402. d N. Y. Revised Statutes, vol. ii. 488—492. 1 Cowen, 460.

Coates v. Cheever,

This convenient and summary mode of assignment of dower under the direction of the courts of probates in the several states, has, probably, in a great degree, superseded the common law remedy by action. When the widow is legally seised of her freehold estate, as dowress, she may bequeath the crop in the ground of the land holden by her in dower.a

Having finished a review of the several estates of freehold not of inheritance, we proceed to take notice of the principal incidents which attend them, and which are necessary for their safe and convenient enjoyment, and for the better protection of the inheritance.

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(1.) Every tenant for life is entitled, of common right, to take reasonable estovers, that is, wood from off the land for fuel, fences, agricultural erections, and other necessary improvements. According to Sir Edward Coke, they are estoveria ædificandi, ardendi, arandi et claudendi. under the pretence of estovers, the tenant must not destroy the timber, nor do any other permanent injury to the inheritance, for that would expose him to the action and penalties of waste.c

(2.) He is entitled, through his lawful representatives, to the profits of the growing crops, in case the estate determines by his death before the produce can be gathered. The profits are termed emblements, and are given on very obvious principles of justice and policy, as the time of the determination of the estate is uncertain. He who rightfully sows ought to reap the profits of his labour, and the emblements are confined to the products of the earth, arising from the annual labour of the tenant. The rule

a Perkins, sec. 521. Dy. 316. pl. 2. The Statute of Merton, 20 Hen. III. had this provision, and it has been frequently re-enacted in this state, and is included in the new revision of our statute laws. N. Y. Revised Statutes, vol. i. 743. sec. 25.

b Co. Litt. 41. b.

c Co. Litt. 93. a. b.

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