Mcmahon v. Gray

• Decision Date: 30 November 1889
• Citation: Mcmahon v. Gray, 150 Mass. 289, 22 N.E. 923 (Mass. 1889)
• Parties: McMAHON et al. v. GRAY.
• Court: Supreme Judicial Court of Massachusetts

150 Mass. 289

22 N.E. 923

McMAHON et al. v. GRAY.

Supreme Judicial Court of Massachusetts, Worcester.

November 30, 1889

COUNSEL

Very &amp Gaskill, for plaintiff.

J.H Bancroft, for defendant.

OPINION

FIELD J.

We think it clear that the right of the defendant to have dower assigned to her out of the lands of her deceased husband cannot be attached or taken on execution in an action at law.The statutes relating to dower have not made a dowress a tenant in common with others in the lands of her deceased husband.The statutes which in some cases give to a widow, in lieu of dower, an estate for her life in one-half of the lands of which her husband died seised in fee, or which give to her an estate in fee in such lands to an amount not exceeding $5,000, have been held to be modifications of the statute of descent, and to vest the title to these estates in the widow immediately on the death of her husband.Sears v. Sears,121 Mass. 267;Lavery v. Egan,143 Mass. 389, 9 N.E. 747.But, as was said in Sears v. Sears"the title thus vested in the widow wholly differs from a mere right of dower, which extends to all lands owned by the husband at anytime during the coverture, and confers no seisin until it has been assigned to her."Before the dower is assigned, the widow has no legal estate in the land upon which an execution can be levied.Gooch v Atkins,14 Mass. 378;Hildreth v. Thompson,16 Mass. 190;Croade v. Ingraham,13 Pick. 33.At common law, a dowress could not enter until her dower had been assigned.After dower had been assigned, and she had entered into possession, she became immediately seised for her life of a freehold estate, with the usual incidents of such an estate, and she could convey it, could be taken on execution by her creditors.Windham v. Portland,4 Mass. 384, 388;Sheafe v. O'Neil,9 Mass. 13.

It is manifest that the reason of the common-law rule that a widow could not convey to another her right to have dower assigned, or enter upon the land before the assignment, as well as of the rule that her right could not be taken on execution, was not founded upon any policy of the law that dower should be a provision for her support, which should be exempt from liability to be taken by her creditors, because she could not enjoy her dower until it was assigned, and then it at once became alienable by her, and liable to be taken on execution to satisfy judgments obtained against her.The right to have dower assigned is a valuable right to property, and in the present case it is a right to land within this commonwealth, which the dowress can have set off to her whenever she chooses, by legal process if necessary.By the weight of authority it is a right which in equity she can assign to another, and courts of law will recognize the assignment to the extent of enabling the assignee to maintain a writ of dower in her name.Lamar v. Scott, 4 Rich.Law, 516;Robie v. Flanders,33 N.H. 524;Potter v. Everitt, 7 Ired.Eq. 152;Tompkins v. Fonda, 4 Paige, 448;Strong v. Clem,12 Ind. 37;Payne v. Becker,87 N.Y. 153;Pope v. Mead,99 N.Y. 201, 1 N.E. 671;Davison v. Whittlesey, 1 MacArthur, 163.

The fact that the lands described in the bill are lands of which her husband died seised, and that she is in occupation, and may continue in occupation, under Pub.St. c. 124, § 13 without having her dower assigned, if the heirs or devisees do not object, does not change the essential nature of her right.This provision of the statutes was undoubtedly enacted for her benefit; but we are unable to see any indications that it was enacted for the purpose of exempting her right of dower from being taken to satisfy her debts.She continues to have the same right and power to compel an assignment of dower that a dowress had before the Statute of 1816, c. 84...