Johnson v. Neil , 4 Ala. 166 ( 1842 )

COLLIER, C. J.

The County Court doubtless determined in favor of Mrs. Neil’s right to dower in the half quarter sec* tion of land,.in which the petitioners sought it, and against the bar set up by the defendants, on the ground that this land was not particularly described in the petition previously filed by. her. The statute certainly requires that the petition of the widow for dower shall set forth the nature of her claim, and specify the lands, tenements and hereditaments of which she seeks to be endowed. [Aik. Dig. 133, §5.] But the statute is cumulative, and does not exclude all other modes of assign* ing dower; and it has consequently been holden that the heir may endow the widow — and that her assent verbally given to an assignment, though irregularly made, is obligatory upon her. Thus in Moore and wife v. Waller, [2 Rand. Rep. 421,] it was held that the heir had the power at common law to assign dower without resorting to a.ny Court; and that that power was not impaired in Virginia by the act óf Assembly; and that the assignment of dower by an adult heir in behalf of himself and his co-heirs, who are infants, is as binding on them as it is on him, provided the assignment is not excessive. [See also Sutton v. Burrows, 2 Murphy’s Rep. 81.] As to the power of a guardian in this respect, see Park on Dower, 266; Jones et ux v. Brewer, 1 Pick. Rep. 314.

It is not indispensable to an assignment of dower, that it should be made by deed or instrument in writing. And in Conant v. Little, [1 Pick. Rep. 191,] it is considered that the statute of frauds did not change the law in this respect. The Court say, “ If an assignment was a conveyance from the heir to the widow, without doubt since the statute a deed or writing would be necessary; but it is not a conveyance — the widow holding her estate by law, and not by contract, wants nothing but to have that part which she is to enjoy set out and distinguished from the- rest, and this may be done by setting out by metes and bounds as well as by deed. The widow does not hold her estate of the heir, but of her deceased husband, or rather by appointment of law. If she received land that was not her husband’s? or other thing in lieu of dower, a deed would be necessary, because she would derive her title from the person making such conveyance in lieu of dower.”— [Shattuck v. Gragg, 23 Pick. Rep. 92; Park on Dower, 269, 340.]

Where the widow assents by parol to an assignment of dower, and takes possession of the land, she cannot afterwards be heard to alledge that the proceedings were not in conformity to law — unless, perhaps, she could show that she had been overreached and induced by fraud to give her assent to the assignment. This principle is more especially applicable where the other lands of which the deceased husband was seized have been divided among the heirs, or otherwise legally disposed of.

In the case at bar, Mrs. Neil assented to the allotment of dower which was made to her, at a time when she was capable of binding herself; the lands set apart to her are equal to one third of the entire realty of which she was entitled to be endowed; the residue of the estate of her deceased husband has been divided with the approbation of the Orphans Court among his heirs.

Under these circumstances she has no claim in law to an increased assignment of dower — and the order which determined otherwise is consequently reversed.