Ruth A. Sears v. Charity L. Sears &Amp; Another

• Decision Date: 20 November 1876
• Citation: 121 Mass. 267
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Ruth A. Sears v. Charity L. Sears & another

121 Mass. 267

Ruth A. Sears v. Charity L. Sears & another

Supreme Court of Massachusetts

November 20, 1876

Bristol. Petition to the Superior Court for partition alleging that the petitioner was entitled to one half of a certain tract of land in Freetown, during her life, in lieu of dower; that she was the widow of Abner J. Sears, deceased that he died intestate, leaving no issue, and seised in fee of said land; that his only heirs were the respondents, his mother and brother; that the petitioner had made a demand in writing upon the respondents to set out and assign to her interest in the land, but they refused so to do; that a large part of the land was woodland, and without partition thereof she could not clear and improve the portion to which she was entitled. On motion of the respondents, the petition was dismissed for want of jurisdiction; and the petitioner appealed to this court.

Petition for partition reversed, and Case stand for hearing.

C. A. Reed, for the petitioner.

E. H. Bennett & H. J. Fuller, for the respondents.

Gray C. J. Devens & Lord, JJ., absent.

OPINION

Gray C. J.

By the Gen. Sts. c. 90, § 15, reenacting the St. of 1854, c. 406, §§ 1, 2, "when a man dies seised of lands, tenements or hereditaments, or of any right or interest therein, in fee simple, not having lawfully devised the same, and leaving a widow, but no issue, the widow, in lieu of dower, shall be entitled to one half of said estate during her natural life; and if any part thereof taken by the widow is wild or woodland, she may use, clear and improve the same."

This statute is, in substance and effect, a modification of the statute of descents. The words "entitled to one half of said estate" (being the estate of which the husband dies seised) and "taken by the widow" clearly show that immediately upon the death of the husband she becomes seised of an undivided half of his real estate, and a tenant in common with his heirs, by virtue of the unity of possession notwithstanding the difference in the source and the duration of their titles. 2 Bl. Com. 191. 4 Kent Com. 367. 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 any time during the coverture, and confers no seisin until it has been assigned to her. Sheafe v. O'Neil, 9 Mass. 13. The title which the widow takes by the statute before us is as absolute as she would have taken by her husband's will, if he...