Williams v. Williams , 78 Me. 82 ( 1886 )

Libbey, J.

The demandant brings this action as the divorced 'wife of the tenant to recover her dower in thirteen parcels of ■land of which she alleges he was seized during coverture.

The tenant objects to the maintenance of the action for want ■of a sufficient demand. It is claimed that the demand is insuf-ficent because it is a demand of dower in an undivided share of ■the lands owned by the tenant in common with others and no demand was made on his co-tenants. The statute does not require it. The demand must be made upon the person who is •seized of the freehold. The demandant does not seek to recover her dower in the whole of the lands, but in the undivided share of the tenant. He is tenant of the .freehold of such share. His co-tenants are not seized of his share as tenants of the freehold. 'They have no interest in the demandant’s claim and no demand •on them is required. It is further claimed that the demand was of her dower in the whole of the lanfls described while in her writ she claims dower in an undivided share only. This objection is mot tenable. Hamblin v. Bank of Cumberland, 19 Maine, 66.

The contention between the parties relates to the demandant’s ;right to dower in the first and ninth parcels described in her writ. There appears to be no controversy in regard to her right to dower in the other parcels ; as to the ninth parcel, the .homestead of Thomas Williams, deceased father of the tenant, we do not think the demandant dowable. The tenant inherited mne-fourth of this, and most of the other parcels described as one of the heirs of his father, who died leaving a widow, Sally G. Williams, and four children. Sally G. Williams had a right to dower in the lands of her deceased husband. The estate taken by the children was subject to that right; and hence the demandant’s right to dower is subject to the right to dower of the senior widow. After this action was commenced Sally G. Williams presented her petition to the probate court to have her dower in the lands of which her husband died seized, set out and assigned to her; and upon proceedings duly had therefor the homestead was set out to her by the commissioners as her dower in all of said lands. The report of the commissioners was accepted and her dower was assigned by the court accordingly. This assignment was in conformity with one of the modes of assigning dower, as between the widow and heirs, recognized by the law of this state and is conclusive upon the parties. French v. Pratt, 27 Maine, 381; French v. Peters, 33 Maine, 396.

The land set out to her was land of which she was dowable, and by the assignment, her seizin by relation extends back to the death of her husband, and is a continuation of his seizure. The tenant then was never seized of one-fourth of this land during coverture so as to give the demandant right to dower in it. McLeery v. McLeery, 65 Maine, 172.

The evidence of the assignment of dower to the senior widow is admissible to disprove the allegation of the seizin of the tenant.

As to the first parcel, the saw mill, the tenant claims that the demandant is dowable of five-sixteenths only, on the ground that she joined with him in a deed of one undivided half thereof to Sally Gr. Williams, August 8, 1873, releasing her right to dower. The demandant denies the execution of that deed by her and this issue was tried to the jury who found for the demandant. The tenant claims that the verdict should be set aside as against the evidence. The evidence was conflicting and not very satisfactory, but the credibility of the witnesses and the weight that should be given to their testimony were for the jury to determine. Upon a careful examination of the evidence we do not think it preponderates so strongly in favor of the tenant as to justify the court in setting the verdict aside.

Judgment for the demandant for her dower in all the lands described in her writ except the ninth parcel.

Petees, C. J., WaltoN, .DaNeobth, Fostee and Haskell,, 33., concurred.