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5 Wkly L. Gazette 5 (1860)

handle is hein.journals/weelgaz5 and id is 1 raw text is: WEEKLY LAW GAZETTE EDITED BY R. B. AND W. W. WARDEN. New Series. CINCINNATI, BATURDAY, APRIL 7, 1860. Vol V.-No. 1. DOWER. The only important question now to be Superior Court-In General Term. considered is, can Mrs. Jones, on the state of facts presented, claim her dower in the The Little Miami Railroad vs. Hannah F premises. Jones-On Error. We are satisfied the widow's right is b The opinion of the Court was delivered conferred solely by Legislative power. STORER, J.: In this country it may be regarded as the The plaintiff in error seeks to reverse offspring of the law, not as expounded by the judgment of one of our colleagues in the opin'ons of commentators, or to be Special Term. He held the defendant in claimed, as it often has been, as founded error was entitled to her dower in prop- on the marriage contract, and therefore a erty owned by the plaintiffs, and in daily vested interest in the wife, to be lost use for the purposes of their Railroad. only by her misconduct, transferred by her Mrs. Jones is the widow of George W. deed, or barred by ante-nuptial agree- Jones, who was seized of thA property in ment, but, on the contrary, created by fee-many years since, and during his mar- statute alone. Hence the diversity in the riage sold the same, without his wife's several States as to the nature of the in- relinquishment of dower. During his life terest itselE Thus, it is held in Vermont, and long after he had transferred his Connecticut, Tennessee, North Carolina, estate, and while it was held in fee by and Georgia, that no dower can be claimed Silas Atkins and others, his grandtes, th a except when the husband dies seized of land was appropriate'd by the Railroad Co., the property. forthepurposes of constructingand main- 5 Cowen 317, Stewart vs Stewart; 1 Hay taining their road, and proceedings were 243, Winstead vs Winstead; 4 Yerger 218, heard before the Probate Judge of Ham- Coombs vs Young; 14 Vermont 107, ilton Co.,as the law provided, for the con- Thayer vs Thayer. demnation of the property. The value So, in Massachusetts, New Hampshire. was ascertained by a jury, and the and Maine, there can be no dower in wild amount paid to -the owners, judg- or uncultivated lands on the ground that ment being rendered that the Railroad cutting down timber, or working a quarry Company were entitled to the possession or a mine, would be waste, and the life thereof, for the purposes then described estate therefore liable to forfeiture. In their petition. 15 Mas., Conner vs Shepherd; 2 N. H. The claimant's marriage, her husband's 56, Johnson vs Porter; 3 Shipley 371, seisin during coverture, his death, and Martin vs Martin. the appropriation of the property for the In Pennsylvania dower is not allowed purposes of a railroad, are admitted. where the land has been sold on exeou Digitized from Best Copy Available

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