Mosher v. Mosher , 32 Me. 412 ( 1851 )

Shepley, C. J.

The tenant and the husband of the demandant were brothers, owning as tenants in .common thee separate tracts of land, of unequal value. These were the Cox farm containing about one hundred acres ; of the Mosher farm, one half, containing about seventy-five acres ; and one acre of land with a store upon it. Benjamin was indebted to Daniel. To sever their interests in the common estates and to pay this debt in part, they made conveyances to each other on Dec. 13, 1826. Daniel conveyed to Benjamin, by a deed of release, his share of the Mosher farm ; and Benjamin conveyed to Daniel, by a similar deed, his share of the Cox farm and his share of the one acre lot with the shop upon it. The difference between the value of the estates conveyed, as estimated by persons selected by the parties, was applied to extinguish in part the debt' due from the tenant to Daniel. , The demandant, as the widow of Daniel, claims dower in that portion of the Mosher farm formerly owned by her husband.

This claim is resisted on the ground, that those conveyances only operated as a partition of the estates held in common.

Partition of an estate owned by tenants in common may be made by deeds of release as well as by deeds of partition and by process of law. Where a simple partition of a common estate is made, the right of the widow of each tenant to claim dower may well be restricted to the share' assigned or conveyed to her husband. That must be presumed to have been of equal value to the husband’s share of the whole estate. If partition be not made by assigning or conveying to each his own share, and the estate is conveyed in unequal shares, of unequal values, and especially when other considerations beside that of a division of the common estate occasion the conveyances, no principle is perceived, or authority presented, limiting the right of a widow to claim dower only in the portion conveyed to her husband.

It is indeed true, that it would not operate unjustly in this case, if the demandant’s claim were thus restricted, for her husband acquired a greater estate than he released. The soundness of the principle to be applied to effect this, may be tested by supposing the lives of the persons to have terminated differently.

If the tenant had deceased before Daniel, leaving a widow, could her claim to dower be restricted to land conveyed to her husband ? If so, her right to dower would be diminished by those conveyances, and for value paid to her husband for a more than equal share of the land, in the discharge of a part of a debt due from him, and she would be deprived of a part of her right to dower without her consent.

This being inadmissible, suppose her to have recovered dower in all the land conveyed by her husband, and that Daniel had then deceased, leaving the demandant as his widow, could her right to dower be restricted to the land conveyed to her husband, which had already been diminished by an assignment of dower to the widow of Benjamin ? If so, the conveyances would not have a like effect upon the rights of the widow of each party to them.

The apparently inequitable claim of the demandant does not arise out of any lack of equity in the principles of law, or in their application ; but out of the proceedings of the husbands in making those conveyances, and from the providential termination of lives in a manner not anticipated. •

Tenant defaulted.