Richards v. Bellingham Bay Land Co.

• Decision Date: 20 October 1891
• Citation: 47 F. 854
• Parties: RICHARDS v. BELLINGHAM BAY LAND CO.
• Court: United States Circuit Court, District of Washington, Northern Division

47 F. 854

RICHARDS v. BELLINGHAM BAY LAND CO.

United States Circuit Court, D. Washington, Northern Division.

October 20, 1891

Harris Black & Leaming, for plaintiff.

W. Lair Hill, for defendant.

HANFORD J.

This case has been heard upon a demurrer to the bill, presenting the question whether a widow whose husband died in the year 1889 is entitled to dower in lands situated in this state which the husband owned, and in which he was seised of an estate of inheritance at the time of his marriage to her, in 1886, and which he sold and conveyed in the same year, by a deed in the execution of which she did not join. By a statute of Washington Territory, in force at the times of the marriage and alienation by the husband of the land in controversy, the right of dower in lands situated in the territory existed, and provisions were made for securing and protecting it. Laws Wash. T. 1864, p. 6. The important sections of this act are the following:

'Section 1. Be it enacted by the legislative assembly of the territory of Washington that the widow of every deceased person shall be entitled to dower, for the use, during her natural life, of one-third part of all the lands whereof her husband was seised of an estate of inheritance, at any time during the marriage, unless she is lawfully barred thereof. ' 'Sec. 7. When a widow shall be entitled to dower out of any lands which shall have been aliened by the husband in his life-time, and such lands shall have been enhanced in value after the alienation, such lands shall be estimated in setting out the widow's dower according to their value at the time when they were so alienated. ' 'Sec. 13. A married woman, residing within this territory, may have her right of dower in any estate conveyed by her husband, or by his guardian if he be a minor, (barred,) by joining in the deed of conveyance and acknowledging the same, or by joining with her husband in a subsequent deed, acknowledged in like manner. Sec. 14. A woman may also be barred of her dower in all the lands of her husband, by a jointure settled on her with her assent before the marriage: provided such jointure consists of a freehold estate in lands for the life of the wife at least, to take effect in possession or profit immediately on the death of the husband.'

The nature of dower, as defined by this statute, is the same as at common law. It is during marriage but a possibility, which may or may not develop into a right. By the terms of the act, the only rights given are given to widows of deceased persons, and it is plain that under it no right could become vested in any woman until her status as wife changed to that of a widow. Moreover, the legislature at the end of the first section added the words, 'unless she is lawfully barred thereof,' to show explicitly that there was nothing absolute in the right intended to be conferred. The decisions of the supreme court of the United States, while recognizing a married woman's inchoate right of dower as being valuable, (Sykes v. Chadwick, 18 Wall. 141,) have settled the law, at least for this court, that a wife, who has a right of dower only in the event that she survive her husband, has no present title to her husband's land, either legal or equitable, (Dolton v. Cain, 14 Wall. 472,) that while in this condition her interest in her husband's land may be dealt with and entirely abrogated by the law-making power, (Randall v. Krieger, 23 Wall. 137;) and that all rights incidental to and dependent upon the marriage relation, conjugal as well as pecuniary, including dower, may be taken away by a mere arbitrary act of the legislature, unless such act is inhibited by positive and express constitutional provisions, (Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723.)

The legislature had the power to enact laws after the complainant's marriage, and before she became a widow, having the effect to cut off her right of dower in lands of which her husband was seised during the marriage. Has it done so? This is the question to be decided, for the right claimed is not barred by any deed or act of the complainant.

The oldest statutes of the territory contain several provisions referring to dower, which were appropriate and necessary, so long as that feature of our law remained; but I will trace the legislation upon the subject only from the year 1863, as all important changes have occurred since the session of the legislature held in that year. The act of 1863, relating to deeds, contains a section providing that a married woman shall not be bound by any deed affecting her own real estate or releasing dower, unless she shall be joined by her husband in executing the conveyance, nor unless her own acknowledgment of it shall be taken and certified with prescribed formalities. Laws 1863, p. 430, Sec. 3. The law governing the descent of real property enacted at the same session expressly recognizes dower, by declaring that the provisions of that chapter shall not affect the title of a widow as tenant in dower. Id. p. 264, Sec. 352. The law relating to wills provides that it shall not be so construed as to deprive a widow of her dower. Id. p 207, Sec. 51. Appropriate provisions for protecting and securing the right of dower are to be found in the various revisions and amendments of the general laws relating to conveyances of and actions to recover and partition real property, and settle estates of deceased persons, made prior to the revision and compilation of the laws in the Code of 1881. In addition to those cited above, see Laws 1869, p. 131, Sec. 503; Id. p. 139, Sec. 537; Id. p. 301, Sec. 8; Laws 1873, p. 135, Sec. 501; Id. p. 143, Sec. 535; Id. p. 465, Sec. 3; Laws 1877, p. 312, Sec. 3; Id. p. 115, Sec. 555; Id. p. 122, Sec. 588. These various provisions were all repealed by being omitted from the Code of 1881, except the third section of the act...