herself of dower, by joining with her husband in a deed or mortgage, she being eighteen, in the same manner as if she were conveying her separate estate. But in this case, to avoid the possibility of deception or coercion, the wife must be examined separately by the person taking the acknowledgment, who must explain the contents of the deed; and she must declare that she executed the deed of her own free will, and without fear, and that she is still satisfied therewith. All these things must be stated in the certificate. 4. By fraud in the wife. (a) Our court has decided that, where a widow agreed with the administrator, that the land should be sold free from dower, and was present when the land was so put up for sale, and did not contradict it, and the land in consequence brought a higher price, she is thereby barred. 5. By her misbehavior. (b) Our statute provides that if a woman be divorced for her own aggression, or if she voluntarily leave her husband and live with an adulterer without a subsequent return and reconciliation, she thereby forfeits her right of dower; and if she voluntarily commit or suffer any waste, she thereby forfeits that part of the dower estate in which such waste was committed. (c)

v. Owen, 25 Maine, 94. When she is the owner in fee, her title does not pass by a deed executed by herself and husband, unless she joins in the granting clause. Purcell v. Goshorn, 17 Ohio, 105; Cincinnati v. Newell, 7 Ohio State, 37. Where A., in possession of land, sold to B., and put him in possession, which possession had continued ever since, B. cannot defeat A.'s wife claiming dower by showing title in some third person, without connecting himself with such title. Ward v. Mackintosh, 12 Ohio State, 589. The wife's separate deed will not bar her dower. Dodge v. Ayerigg, 1 Beasley, 82. Dower can be released to the owner of the land, but cannot be conveyed to a third person, until after assignment. Hoots v. Graham, 23 Ill. 81; Cornwall v. Wilson, 21 Ark. 62; Harrison v. Gray, 49 Maine, 537; Miller v. Woodman, 14 Ohio, 518; Bailey v. West, 41 Ill. 298; Chicago Dock Co. v. Kinzie, 49 Ill. 289. Before assignment, however, it is an interest in lands within the statute of frauds. Finch. Finch, 10 Ohio State, 501. Where a wife has joined in a mortgage, and the land is worth more than the debt, she has dower in the surplus. Bank of Commerce v. Owens, 31 Md. 324. But she is not entitled to be endowed of the whole estate, to be paid out of the surplus. State Bank v. Hinton, 21 Ohio State, 509. Where a wife has joined in a mortgage releasing her dower, she stands only in the position of a surety, and is entitled to have the debt paid out of the personalty. Peckham v. Hadwen, 8 R. I. 160. She may maintain a bill to redeem her inchoate right of dower. Davis v. Wetherell, 13 Allen, 60.

(a) See Smiley v. Wright, 2 Ohio, 506. But in M'Farland v. Febiger, 7 Ohio, pt. 1, 194, it was held, that where a wife signed and acknowledged a deed with her husband, knowing that it was defective in the granting clause, and that the purchaser was thereby deceived, this will not bar her dower; because the fraud was committed while she was under coverture. Carter v. Goodin, 3 Ohio State, 75. She has dower in real estate in the conveyance of which, without consideration to defraud her husband's creditors, she joined with him in executing during coverture. Woodworth v. Paige, 5 id. 70.

(b) Marriage in Kentucky in 1816; separation in 1818; wife ever since residing in Ohio. Husband sells land in Ohio, and then procures divorce in Kentucky for her wilful absence. After his death she claims dower, and succeeds on the ground that the statute barring dower for her aggression only applies to divorces granted in this State. Mansfield v. M'Intyre, 10 Ohio, 27. A woman having a husband living at the time of her second marriage, is not entitled to dower in the estate of her second husband, the second marriage being void. Smith v. Smith, 5 Ohio State, 32. Under the statute of 1840, where a woman obtained a divorce for the aggression of her husband, she retained her dower, even though at the time of his death she was married to another man. Lamkin v. Knapp, 20 Ohio State, 454.

(c) Crockett v. Crockett, 2 Ohio State, 180. Woodward v. Dowse, 10 C. B. (N. S.) 722. Contra, Lakin v. Lakin, 2 Allen, 45; Bryan v. Batchelder, 6 R. I. 543.

How Dower is Assigned. (a) Dower may be assigned in two ways, voluntarily or by petition. When the land is not incumbered, the heir or other person interested may assign the widow her dower, "by writing under his hand and seal," and if she accepts the assignment it is conclusive. It would seem from the above words, that a deed of assignment of dower need not be attested and acknowledged like other deeds. But we have no judicial construction of those words. If dower be not assigned voluntarily as above, the widow must file her petition against the heirs or other persons interested, setting forth all the facts necessary to sustain her right and enable the court to act; and if the court decree in her favor, the sheriff is ordered to have the dower set off by three judicious men, and possession given to the widow. (b) We have no action at law to recover dower, unless ejectment would lie in the first instance, which, under the above provision, is improbable. After assignment thus made, there is no doubt ejectment would lie to recover possession. In case the heirs should file a bill for partition before the assignment of dower, the persons directed to make partition must first set off the dower; and in like manner, when land is directed to be sold by administrators, it is the first duty of the appraisers to set off the dower. Where the property is of such a nature that it cannot well be divided, dower is assigned in a special manner, as one-third of the rents and profits, to be ascertained by the above persons.

From this view it will be seen that our law of dower differs from the common law, in there being but one kind of dower, instead of four or five; in comprehending equitable as well as legal estates; and in being cognizable in chancery, and not at law, in the first instance. And on the whole, it is believed to be inferior to no system in the great points of simplicity and liberality. The subject

28.

(a) By the statute of 1843, the widow, in addition to the lands set off to her, is entitled to one-third of the net profits of the lands subject to dower, accruing between the time of filing her petition and the time of assigning dower, to be ascertained by the commissioners; but if the lands had been aliened by her husband, the commissioners are to exclude from their estimate all permanent improvements subsequently made. It had previously been decided that dower is to be estimated according to the value of the land at the time of assignment, excluding all increase resulting from improvements made after alienation, but including all other increase. Dunseth v. Bank U. S. 6 Ohio, 76, and 10 id. 18; Allen v. M'Coy, 8 id. 418. This mode of estimating dower is adopted in Gore v. Brazier, 3 Mass. 544; Thompson v. Morrow, 5 Serg. & Rawle, 289; Powell v. M. & B. Man. Co., 3 Mason, 375; Fritz v. Tudor, 1 Bush (Ky.), But not in New York. Dorchester v. Coventry, 11 Johns. 510; Shaw v. White, 13 Johns. 179. Where the husband dies seised, dower is to be assigned according to the law in force at the death of the husband. The wife's right does not vest until that time, so as to be beyond the power of the legislature. Lucas v. Sawyer, 17 Iowa, 517; Boyd r. Harrison, 36 Ala. 533. But in cases where the husband aliened before death, the legislature cannot, as against the purchaser, afterwards, but during the husband's life, enlarge the dower rights of the wife. Young v. Walcott, 1 Clarke, 174; Thomas v. Hesse, 34 Mo. 18. But the right to dower accrues at the death of the husband, and is barred in twenty-one years from that time. Tuttle v. Wilson, 10 Ohio, 24. Dower cannot be assigned in a gross sum. Johnson ». Nyce, 17 Ohio, 66. By the statute passed March 10, 1857, in executor's and administrator's sales of real estate upon the request of the widow, made by answer filed, the premises may be sold free from dower, and a gross sum assigned to the widow from the proceeds. (b) The court now appoints the appraisers.

of personalty acquired by the wife has already been considered in the lecture on husband and wife. (a) We there saw that with respect to personalty, the advantage is altogether on the side of the husband. The wife not only acquires no interest in his personalty, but loses the control of her own personalty. Except the right to a mere support, narrowed down to the measure of necessaries, she acquires no interest in personalty by marriage, until her husband's death; (b) in which event, if there be no debts and no children, she has all; if there be children, after payment of the debts, she has half the first four hundred dollars, and one-third of the residue.

§ 158. Curtesy. (c) This estate is recognized both by our legislature and our courts; and I shall consider its general nature; but of the origin of the term curtesy, I shall not take up your time with giving an account. At common law, an estate by curtesy is where a man marries a woman seised of real estate in fee, and has by her issue born alive. In this case, on the death of his wife, he is entitled to hold such real estate for life as tenant by curtesy. This curtesy differs from dower in two important respects: first, it extends to all the real estate of the wife, instead of a third part; and secondly, it depends upon having issue born alive, which was not the case in dower. As to the marriage, it must be the same as in case of dower; that is, a marriage consummated pursuant to the statute, and actually existing at the death of the wife; for if there has been a divorce for the husband's aggression, our statute provides that the wife shall be restored to all her real estate; which expressly takes away his curtesy; but if the divorce be for the aggression of the wife, the statute provides that she may be restored to the whole or a part of her real estate, as may seem just. What is meant by this last vague provision, is somewhat doubtful; but I presume it only means to allow the husband to retain possession, after the divorce, during the life of the wife, as a kind of punishment to her; and not to give him an estate by curtesy; for at her death the right of her heirs attaches, which would not be affected by this order of court. We have seen that by express provision, the adultery of the wife, without subsequent reconciliation, cuts off her dower. As to the seisin required in the wife, nearly the same remarks apply as in case of dower. (d) She must have a bene

(a) In Ramsdall v. Craighill, 9 Ohio, 197, it is held that if they unite in selling her land, the proceeds become his; and if these proceeds be invested in other land, and he takes the title, this also is his. But there has been subsequent legislation, protecting the property of the wife. See Lecture on Husband and Wife.

(b) But see act of April 17, 1857, ante, note at the end of chap. 14; Slanker v. Beardsley, 9 Ohio State, 589.

(c) 2 Black. Com. 126; 4 Kent, Com. 27-35; 1 Cruise's Dig. 105; Lowry v. Steele, 4 Ohio, 170; Fleming v. Donahoe, 5 Ohio, 255; Cauby v. Porter, 12 Ohio, 79.

(d) In Ohio, it is held that a husband may have tenancy by the curtesy, though the wife may never have been seised, either actually or constructively, of the lands, and though the same be held adversely during coverture by another person. Borland v. Marshall, 2 Ohio State, 308. Merritt v. Horne, 5 id. 307; Mitchell v. Ryan, 3 id. 377. Stephens v. Hume, 25 Mo. 349; Buchanan v. Duncan, 40 Penn. State, 82. The husband cannot be tenant by the curtesy of a remainder expectant upon a lifeestate, unless the life-estate is determined during coverture. To entitle him, the wife

ficial ownership in fee; but she need not have entered upon the land, because here entry is never necessary to perfect title. Nor need she be in actual possession; for where a woman before marriage created a term of years in trust for herself during the coverture, she was still considered by our court as having such a seisin as entitled her husband to curtesy; and it makes no difference at what time of the coverture the seisin commenced, so that it continues till her death. Nor is curtesy confined to the legal estate of the wife; as I have before mentioned, it has long been held to extend to her equitable interest. The only exception is, where the trust is expressly declared to be for her sole and separate use, in such a manner as to negative the idea of curtesy in the husband. As to the necessity of issue born alive and capable of inheriting, which is not the case in respect to dower, whatever may have been the origin of the doctrine, it seems now to be a purely arbitrary and technical requisition; for if the infant should live but for one instant after birth, so as to prove that it was born alive, this is sufficient; the right to curtesy from that moment attaches, and becomes perfect on the death of the wife. Were we to look to the reason of the thing alone, we should say that there is more reason why a husband should have curtesy when there had been no issue, than if there were issue surviving; and just as much reason as when there were issue born which did not survive. However, such is the law. (a) We have seen that dower may be barred or forfeited in a variety of ways. Not so with curtesy. No conduct of the husband, however wrong, which does not result in divorce, deprives him of his right. Nor does he incur a forfeiture for waste, as in case of dower, because there is no express provision to this effect. He only renders himself liable in damages. There is of course no occasion for an assignment of curtesy, as there is of dower, because the husband takes the whole.

We have already seen, that the husband takes control of all his wife's personalty. If choses in action be not already reduced to possession, he may collect and dispose of them. In a word, therefore, by marriage, the husband acquires a right to all the wife's personalty, unless previously settled in trust for her separate use; and the law gives her no power to prevent his wasting it.

must have had, during coverture, a right to the present possession of the land. Watkins v. Thornton, 11 Ohio State, 367; Shores v. Carley, 8 Allen, 425; Orford v. Burton, 36 N. H. 395; Stewart v. Barclay, 2 Bush, 550; Moore v. Culvert, 6 Bush (Ky.), 356; Reed v. Reed, 3 Head (Tenn.), 491. The married women's statutes in Ohio are expressly declared not to affect tenancy by the curtesy. Nor does the Illinois Act of 1861. Cole v. Van Riper, 44 Ill. 58. Nor the New York acts of 1848 and 1849. Burke v. Valentine, 52 Barb. 412. But see Matter of Winne, 1 Lans. 508. Nor the New Jersey act. Porch v. Fries, 3 Green, 204. It is entirely abolished in Iowa. Shields v. Keys, 24 Iowa, 298. A husband is not tenant by the curtesy of land settled to the sole and separate use of the wife. Pool v. Blakie, 53 Ill. 495.

(a) By a statute passed in 1853, the birth of issue is not now necessary in Ohio.

LECTURE XXIX.

TITLE BY DESCENT. (a)

§ 159. Preliminary Explanations. When the owner of land dies without making a disposition thereof, the law makes it for him. Leaving no will, testamentum, he is said to die intestate, and in legal phrase is called the intestate. The persons to whom the law

(a) See 2 Black. Com. chap. 14-29; 4 Kent, Com. lec. 65; 2 Hilliard, chap. 22; 3 Cruise's Dig. 369; Reeve on Descents; Chitty on Descents. By an act of 1854, any person capable of making a will may appear before the probate judge, with two witnesses, and by a written declaration designate who shall be his heir-at-law, and the person so designated shall occupy the same position, in respect to inheritance, as a child born in lawful wedlock. This singular statute has received no construction. On the death of the ancestor, lands descend at once to the heir, and become liable to sale on execution against him, but subject always to the ancestor's debts, if due steps be taken to charge them. Douglass v. Massie, 16 Ohio, 271. In the mean time, the heir is bound to pay the taxes; and if he permits a sale for delinquency, and becomes the purchaser, he cannot set up a title against the creditor. Piatt v. St. Clair, 6 Ohio, 227. The lien for debts can only be discharged by payment or lapse of time. Ramsdall v. Craighill, 9 Ohio, 197. Prior to 1831, there was a proceeding by scire facias to charge descended lands. Me Vickar v. Ludlow, 2 Ohio, 246; Gray v. Askew, 3 Ohio, 466; Union Bank v. Meigs, 5 Ohio, 312; Piatt v. St. Clair, 6 Ohio, 227. But neither the personal representatives nor creditors of a decedent acquire by his death such an interest in his land, as to preclude the legislature from repealing a law authorizing a sale for the payment of debts. Ludlow v. Johnson, 3 Ohio, 553. The title of the widow to her distributive share of the personalty accrues on the death of the intestate, subject only to the debts and funeral expenses, which are to be first paid by the administrator. Conger v. Barker, 11 Ohio State, 1. The common-law doctrine of shifting inheritance does not apply at all to our law of descents. The property of the intestate vests at once in the heirs in being, and this title is not divested by the subsequent birth of others. This rule does not exclude children en ventre sa mere, as they are in being in the eye of the law. Drake v. Rogers, 13 Ohio State, 21; Cox v. Matthews, 17 Ind. 367. In Cutlar v. Cutlar, 2 Hawk. 324, the contrary was held, but the legislature soon afterwards amended the law so as exclude the doctrine.

As to who are heirs under our statute, we have had few decisions. Under the act of 1805, where one inherited land from his father, and died without issue, or brothers and sisters, the estate went to his mother, in preference to his father's sister. McCollough v. Lee, 7 Ohio, pt. 1, 15. Where land descended from the father to an infant son, was sold by the guardian, and the proceeds held in money, when the ward died without issue, the sale was held to change the property to non-ancestral, so that it went to the half-brothers, issue of the mother's second marriage. Armstrong v. Miller, 6 Ohio, 118. Under the statute of 1824, where land descended to a posthumous child, who died without issue, or brother or sister, but leaving a mother, who afterwards married, and had a child, that child was held to be the heir of the first child. Dunn v. Evans, 7 Ohio, pt. 1, 169. Where land was devised in trust to a married sister if living, if not, to her children, and she died before the testator, and the children shortly after, the land was held to be ancestral property in the children, which could not pass to her half-brother not of the testator's blood, nor to their father, but to the next of kin of the blood of the testator. Brewster v. Benedict, 14 Ohio 368. The term "ancestor," in the act of 1831, means any one from whom the estate is inheritable, and the term "the ancestor from whom the estate came," designates the person from whom it was immediately inherited. Prickett v. Parker, 3 Ohio State, 394. Clayton v. Drake, 17 Ohio State, 368. Where land was devised to a brother and his wife, they take as tenants in common, and if the wife dies without issue, her brothers will inherit, though not of the blood of the ancestor. Penn v. Cox, 16 Ohio, 30. Where one tenant in common, in proceedings in partition, elects to take the land at its appraisement, and after obtaining the deed for it dies intestate, that portion of the land which he inherited descends as ancestral property, and the remaining title which he acquired under proceedings in partition as nonancestral. Freeman v. Allen, 17 Ohio State, 127.