Barton v. Hinds , 46 Me. 121 ( 1858 )

The opinion of the Court was delivered by

Goodenow, J.

By the R. S., c. 95, § 3, the Judge of Probate may assign dower to the widow, in lands of which her husband died seized, when her right of dower is not disputed by the heirs or devisees.

In Sheafe v. O'Neil, 9 Mass. 9, the husband did not die seized, and upon this ground the case was decided.

In the case French v. Crosby, 23 Maine, 276, it was held that a person, claiming title under an heir or devisee, might dispute the right of a widow to dower, and thereby oust the Probate Court of jurisdiction in the assignment of dower.

In this case, the husband died seized of the premises in which dower has been assigned by the Judge of Probate, and the claim of dower was not disputed by an heir or devisee of the husband, or by a person claiming under an heir or devisee.

When the assignment is made, the widow acquires no new freehold, but her seizin is a continuation of her husband’s seizin. 4 Mass. 384, 388; 1 Pick. 314, 311, 189, 191.

The presumption is, that the husband owned the land, having died in the exclusive possession of it. It makes out a prima facie case for dower. The widow should be provided for without unnecessary expense or delay. She should not be held out, or turned out, by a claim from any one, except the heir or devisee, or person claiming under the heir or devisee, before there shall have been a decision upon the merits of such claim. The assignment of dower by the Judge of Probate is not conclusive. It does not settle the title as to strangers, or undertake to do so.

If the Judge of Probate had power to insert in his decree, “ and the share or part so assigned shall be held charged for the payment thereof,” it was not a condition precedent. Benjamin became seized, it may be, of a defeasible estate. The case shows no entry for condition 'broken, in his life time. The payment was to be made to the other heirs, by Benjamin, within one year after it should be demanded.

Whether the appellants have lost all remedy by lapse of time, we need not now decide. They may, or may not, have a charge upon the land for the amount which remains due them from Benjamin Hinds. Upon that question, however, we express no opinion. However that may be, they do not sustain such relation to the estate of Benjamin Hinds, as to authorize them, under the statute, to interfere with the proceedings before the Judge of Probate, or to claim an appeal from a decree of the Probate Court, assigning dower to the widow. The appeal is therefore dismissed and the decree of the Probate Court affirmed.

Appeal dismissed. —Decree of Probate Court affirmed.

Tenney, C. J., and Rice, Cutting, and Davis, J. J., concurred.