Mason v. Mason

• Decision Date: 24 September 1885
• Citation: 140 Mass. 63,3 N.E. 19
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Eliza A. Mason v. Herbert N. Mason & others

140 Mass. 63

3 N.E. 19

Eliza A. Mason v. Herbert N. Mason & others

Supreme Judicial Court of Massachusetts

September 24, 1885

Argued October 30, 1884

Bristol.

Writ of dower. Trial in the Superior Court, before Brigham, C. J who ruled that the demandant was entitled to her dower directed the jury to return a verdict accordingly; and reported the case for the determination of this court. The facts appearin the opinion.

Judgment on the verdict.

W. H. Fox, for the tenants.

C. A. Reed & J. H. Dean, for the demandant.

Colburn, J., absent. Devens, J.

OPINION

Devens, J.

The demandant, by her deed, made in her husband's lifetime, undertook to convey to Herbert N. Mason, a son of her husband and one of the devisees under his will subsequently made, all right, title, and interest which she then had or might thereafter have in her husband's estate, expressly referring to her right of dower therein. It is the contention of the tenants, that, under the present existing right of married women to hold, manage, and dispose of their separate property in the same manner as if they were sole, the demandant is now estopped from making demand for dower, or from asserting any interest in the husband's land. Pub. Sts. c. 147, § 1.

While the inchoate right of dower is a vested right of value, dependent on the contingency of survivorship, it is not that separate property which passes by conveyance, but a right which one entitled thereto may, under certain circumstances, release. It is of a peculiar character, and, before assignment, the wife has no seisin. The right to be endowed from the real estate of the husband is an ancient provision, made by the common law for the comfort of the wife upon his decease. Nor, while she alone is entitled thereto, is it that separate property which, during coverture, she may manage or dispose of at pleasure, as distinct from that of the husband. The Pub. Sts. c. 124, § 6, and c. 147, § 16, carefully provide for certain modes by which a woman may bar her right of dower in the estate of her husband during his lifetime. They are by release, which is only to be made to him who holds the estate in which the right might otherwise be asserted. These modes we must hold to be exclusive.

The homestead right bears in many respects an analogy to the right to be endowed. It is provided, in terms, that no conveyance of an estate in which a homestead exists, or release or waiver thereof, shall operate "to defeat the right of the owner or of his wife and children to have a homestead therein, unless such conveyance is by a deed in which the wife of the owner, if he has any, joins for the purpose of releasing such right, in the manner in which she may release her dower," &c. Pub. Sts. c. 123, § 7. This statute certainly treats the homestead right of the wife as something different from that separate property which she may dispose of at her own discretion, and recognizes the modes of releasing dower as those prescribed by the statute.

Before the St. of 1874, c. 184, § 1, (Pub. Sts c. 147, § 2,) it could hardly have been contended that an inchoate right of dower could have been conveyed except in these modes. That stat...