Merrill v. Shattuck , 55 Me. 370 ( 1868 )

Kent, J.

The question is whether a demand was legally made for dower, or, if not, whether any demand was necessary. As to the last question, we have no doubt that a demand is necessary, when a divorced wife claims dower in the estate of the husband. The statute which gives her this right says, that this "dower in his real estate is to be recovered and assigned to her as if he was dead.” If he were dead, the statute, c. 103, §§ 18, 19, provides the mode of procedure, to wit, if her dower is not set out to her by the heir or tenant of the freehold, or assigned to her by the Judge of Probate, she must demand her dower of the person who is at the time seized of the freehold, but she shall not commence her action before the expiration of ojie month, nor after the expiration of one year from the .time of the demand. We see no reason why a divorced wife should be exonerated from mailing such demand. There is no statute exempting her from pursuing the same course to obtain her dower, as if her husband were dead.

Was there a sufficient demand made in this case, on the pi'oof before us ? This is a question of fact. No particular form is required. Nor is it essential that it be made in writing. But it must be shown that in some form a demand or request was made on the party who held the land, that he should do a precise and defined thing, viz., — set out to the demandant her dower in certain lands sufficiently described. It is not enough to show negotiations or discussions between the parties on the subject of her dower, or that-propositions for a compromise or for the relinquishment of her right, for a sum of money, had been made and considered, — or that the suggestion had been made, that certain arbitrators might set out the dower in lieu of legal proceedings, by amicable arrangement. All these failing, if the wife would resort to her strict legal rights, she must make a demand on the other party to do this one specific act. It would be clearly unjust to the party holding the land, to allow the other party, pending these negotiations, to commence a suit for dower before there was an end of them. Whenever the demandant chooses to put an end to negotiations and to pursue legal remedies, her demand of dower will inform the other party that, if he does not set it out within thirty days, a suit may be commenced.

It seems, from the testimony of the demandant’s attorney, that the only demand made was iu form of a letter.

The defendant testifies that no demand of dower, in any form, was ever made on him, and that the three letters in the case were all that were ever received by him in relation to this dower. The first two of these letters relates to a proposition to select certain men to appraise and set out dower, " in lieu of other proceedings.” It is also suggested that, if the parties could agree on three men, they could "proceed immediately to a set-off.” In the last letter, he objects to what he deems a new proposal, and says " if this is insisted on, that ends a reference,” — and concludes with a request to be informed of his decision. This seems to leave the parties where they were when negotiations commenced. We cannot find the evidence of a demand to have dower set out required by law.

Plaintiff nonsuit, without prejudice to an action on a new demand of dower.

Walton, Dickerson, Barrows, Daneorth and Tapley, JJ., concurred.