Kenyon v. Kenyon

• Decision Date: 02 July 1892
• Citation: 17 R.I. 539,24 A. 787
• Parties: KENYON v. KENYON et al.
• Court: Rhode Island Supreme Court

24 A. 787

17 R.I. 539

KENYON

v. KENYON et al.

Supreme Court of Rhode Island.

July 2, 1892.

Bill by Anna L. Kenyon against Thomas E. Kenyon and others, for the assignment of dower. On demurrer to the bill. Demurrer sustained.

James Tillinghast and Theodore F. Tillinghast, for complainant.

Samuel W. K. Allen and Charles J. Arms, for respondents.

MATTESON, C. J. This is a bill for the assignment of dower. It sets forth that the complainant is the widow of Daniel C. Kenyon, deceased, who died intestate, and without issue, November 25, 1887; that lie was the only child and heir at law of George C. Kenyon, who died in 1874, leaving a last will and testament which was duly admitted to probate; that the said George C. Kenyon, before the execution of bis will, was seised in his demesne as of fee of several parcels of land in East Greenwich, with the buildings and improvements thereon, particularly described in the bill, the first three of which constituted the homestead estate of the said George; that the said Daniel, from and after the death of his father until his own, had the use and enjoyment of and occupied the same as his homestead estate, and that the complainant, since the death of her husband, has remained in the possession and occupation of the dwelling house thereon and messuage adjacent; that the defendants are the heirs at law of said Daniel, of the blood of his father; that more than one month before the filing of this bill the complainant demanded of the defendants the assignment of her dower as such widow, but that they have refused, and still refuse, to comply with her demand. The bill prays that she may be decreed to be entitled to dower in all of the lands, that it may be assigned and set off to her together out of the homestead estate, and for general relief. The respondents have demurred to the bill.

Pub. St. R. I. c. 229, § 1, provides that "the widow of any person dying intestate or otherwise shall be endowed of one full and equal third part of all the lands, tenements, and hereditaments whereof her husband, or any other to his use, was seised of an estate of inheritance at any time during the intermarriage, to which she shall not have relinquished her right of dower by deed., except in the cases provided for in section 23 of this chapter." The exception refers to cases in which real or personal estate has been conveyed by deed, or bequeathed or devised, for the jointure of the wife in lieu of dower. In support of the demurrer it is contended that the bill is insufficient, in that it nowhere sets forth that the complainant's husband, or any other to his use, was seised of an estate of inheritance at. Any time during the intermarriage in the lands in which the dower is claimed, but merely alleges, concerning three of the tracts described in the bill, that the husband, from and after the death of his father until his death, "had the use and enjoyment of the same, and occupied the same as his homestead." We think the point is well taken. The allegation amounts merely to an allegation that Daniel C. Kenyon had possession of the land in which dower is claimed; but possession alone in the husband is not enough to confer the right 6f dower, since that might...