Mann v. Edson , 39 Me. 25 ( 1854 )

AppletoN, J.

— To entitle a widow to dower, she must show that during coverture her husband had either an actual or corporeal seizin, or a right to such seizin of the estate of which dower is demanded. It is true it was held in Knight v. Mains, 3 Fairf. 41, that possession was evidence of seizin, and that when it appeared that the husband had been in possession during coverture, it was incumbent on the defendant to prove a paramount title in himself. This has been done in the case at bar. The jury have found that the husband of the demandant was not seized during cover-ture, so that the inference of seizin, which might have been drawn from possession, appears to have been rebutted.

At common law, the widow of a cestui que trust is not dowable of an estate to which the husband had only an equitable title. Hamlin v. Hamlin, 19 Maine, 141; Park on Dower, 124. Such being the law, where the trust is one which is lawful in itself and which a court of equity would enforce, it is not easy to perceive how the rights of the widow will be increased or enlarged, if the ingredient of fraud be added and the purposes of the alleged trust were to defraud the creditors of the husband. The husband could not, by the intervention of a court of equity, have enforced such a trust, nor have acquired that seizin, which is a prerequisite so indispensable, that without its existence, the widow must fail of her dower. Whithed v. Mallory, 4 Cush. 140.

The declarations of Mann were properly excluded. They were immaterial to the issue, the object of their introduction being to show the alleged trust estate of Mann, which, as has been already seen, could not have been of any avail to the demandant. Besides, the facts sought to be shown by his declarations seem to have been proved from other sources, and to have been established by the special finding of the jury. Exceptions overruled. —

Judgment on the verdict.

Shepley, C. J, and Tenhey and Howard, J. J., concurred.