McCully v. Smith , 18 S.C.L. 103 ( 1831 )

Johnson J.

delivered the opinion of the Court.

At common law the widow cannot enter upon her dower: And although it is provided by magna charta, that she may remain in the chief house of her husband for the spac.e of forty days next after his death, within which time her dower is to be assigned, yet no penalty is provided, nor is the permission to rema’ri extended beyond that period, although her dower is not assigned; and she is still compelled to have recourse to her writ of dower. Co. Litt. 32, b.

Clarke v. O’John^§248 and see 5 Johns, Mills, for the motion. A. W. Thompson, contra.

I.t follows, that at the end of her quarantine, she must be regarded as a trespasser even though her dower has not been assigned. The reasoning of the case cited at the bar is very satisfactory and conclusive on this point: The dowress takes in severalty: Co. Litt. 34, b. she is neither joint-tenant, nor tenant in common with the heir, and much less with a stranger. If trespass, therefore, would not lie, there would be no mode of ousting her of any part of the land ; and hence the propriety of leaving her to her writ of dower.

The judgment below must be reversed.