Flynn v. Flynn
| Decision Date | 21 May 1898 |
| Citation | 50 N.E. 650,171 Mass. 312 |
| Parties | FLYNN v. FLYNN et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J.E. Crowley and W.A. Buie, for plaintiff.
W.B.F Whall, for defendants.
The land in which the plaintiff had an inchoate right of dower was taken by the city of Boston, by right of eminent domain for the purposes of a school house, the city acting by virtue of and in accordance with the provisions of St.1895, c. 408. This act, in section 2, gives the board of street commissioners of Boston, at the request of the school committee, power to "take, by purchase or otherwise such lands for school purposes as said school committee with the approval of the mayor shall designate, and to take any lands under the right of eminent domain." The board is also required to "sign and cause to be recorded in the registry of deeds for the county of Suffolk, a statement containing a description thereof as certain as is required in a common conveyance of land, and stating that the same are taken for school purposes, and upon the recording of any such statement the lands described therein shall be taken in fee for said city."
We assume that all the formalities required have been complied with, and that the city now owns the land in fee.
The question, then, is whether an inchoate right of dower is such an interest in land that, when the land is taken by the right of eminent domain, the wife may apply to a court of equity to have in some way the benefit of such interest. We are not aware that this right has ever before been asserted in this commonwealth, and this is the first time that the question has been presented for our decision. It is declared by Pub.St. c. 124, § 3, as follows: "A wife shall be entitled to her dower at common law in the lands of her deceased husband." This chapter makes many provisions in regard to dower, but there is none which relates to the question before us. At common law, "a woman is entitled to dower out of all the lands whereof her husband was seised in fee simple at any time during her coverture." 1 Greenl. Cruise, 175. There is no doubt that the inchoate right of dower is an incumbrance upon land. Shearer v. Ranger, 22 Pick. 447. The release of such a right of dower is a good consideration for a promise. Bullard v. Briggs, 7 Pick. 533; Holmes v. Winchester, 133 Mass. 140; Nichols v. Nichols, 136 Mass. 256. It is a contingent right, which the wife, during coverture, may have the assistance of the court to establish or protect. Burns v. Lynde, 6 Allen, 305; Davis v. Wetherell, 13 Allen, 60; Madigan v. Walsh, 22 Wis. 501; Clifford v. Kampfe, 147 N.Y. 383, 42 N.E. 1; Buzick v. Buzick, 44 Iowa, 259 . So, too, a wife having an inchoate right of dower may maintain a bill in equity to redeem land from a mortgage in which she has joined with her husband to release dower. Davis v. Wetherell, 13 Allen, 60; Lamb v. Montague, 112 Mass. 352. See Pub.St. c. 124, § 5. But if the mortgage contains a power of sale, and the wife has joined in the deed with her husband in release of her dower, a sale of the land in pursuance of the power bars all claim and possibility of dower. Pub.St. c. 181, § 19.
While a wife may, under Pub.St. c. 124, § 6, bar her right of dower by releasing the same in a deed executed by her husband, or by a subsequent deed executed either separately or jointly with her husband, yet she cannot convey her inchoate right of dower to a person to whom her husband has not conveyed the land. Such a deed is void. Mason v. Mason, 140 Mass. 63, 3 N.E. 19. See, also, Reiff v. Horst, 55 Md. 42. In Mason v. Mason it was said by Mr. Justice Devens: While the word "vested" is used in this case, it would seem that the word "contingent," which was used by Chief Justice Parker in Bullard v. Briggs, 7 Pick. 533, 537, would more accurately describe the nature of the estate. After an assignment of dower is made, the widow acquires no new freehold, her seisin being deemed, in contemplation of law, a continuation of her husband's seisin. Windham v. Portland, 4 Mass. 384, 388.
Even after the death of the husband, a creditor cannot at law attach the right of the widow to have her dower assigned to her or take the same on execution. McMahon v. Gray, 150 Mass. 289, 22 N.E. 923. Until dower has been assigned to her, a widow has no estate in the land of her deceased husband. Smith v. Shaw, 150 Mass. 297, 22 N.E. 924; State v. Wincroft, 76 N.C. 38. Nor can she object to a partition of the land among the tenants in common. Motley v. Blake, 12 Mass. 280; Ward v. Gardner, 112 Mass. 42. There can be no doubt that the inchoate right of the wife is always subject to any incumbrance or infirmity in the husband's title existing at the time he became seised, and we are also of opinion that it is subject to any incident attached to it by law. The land may be sold on a petition for partition, if the husband is a tenant in common. Pub.St. c. 178, § 65. When this happens, it has been held, in a well-considered case in Indiana, that the wife is not a necessary party to the partition proceedings, and is not entitled to share in the fund derived from the sale. Haggerty v. Wagner (Ind.Sup.) 48 N.E. 366. Land may be sold for taxes, and if there is a surplus it is to be paid "to the owner of the estate." Pub.St. c. 12, § 35; St.1888, c. 390, § 40. In a case arising under a New York statute, which directed that any surplus arising on a tax sale "shall be held for the use of and paid over to the person legally entitled upon his establishing his right thereto," it was held that the owner of the land was entitled to the surplus. People v. Palmer, 10 A.D. 395, 41 N.Y.Supp. 760. It was also held in this case that the interest which the wife of the owner had in the land by virtue of her inchoate right of dower, although a valuable interest, was not an "estate" in the land which would give her a right to redeem from the tax sale, under a statute giving a right to redeem to "any person or persons having an estate in, or any mortgagee of," any land sold for taxes.
It is also an incident of land that it is liable to be taken by the right of eminent domain, and we are of opinion that, when it is so taken in the lifetime of the husband, the wife is not entitled, on account of her inchoate right of dower, to have any portion of the money received for the land either paid to her directly or set aside for her benefit on the contingency of her surviving her husband. If the land had not been taken the husband could have done what he pleased with it during his life. He might have sold it for its full value, yet the wife could not interfere or deprive him of the use of any part of the purchase money. In case the husband survived the wife, the purchaser would have a good title, which the heirs of the wife could not interfere with. If the...
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