
    Mina L. Holmes vs. Frank D. Holmes.
    Submitted on briefs May 15, 1893.
    Affirmed July 31, 1893.
    'The Word “Bower,” as Used in the Statute Regarding Divorce, Construed.
    The estate given to a surviving wife by the existing statutes in the lands of a deceased husband, inchoate upon the marriage and seisin of the husband, and absolute at his death, unless divested by her consent, as provided by law, must be deemed a provision in the nature of dower, and in lieu of the previous statutory provision denominated “dower.”
    Same — Includes Provisions in Lieu of Dower.
    Under 1878 G. S. ch. 62, § 24, allowing dower to a wife divorced on the ground of the adultery of her husband as if he were dead, the term “dower” must be held to extend to and include the present statutory provisions for the wife in lieu of dower in the lands of a deceased husband.
    It is not Assigned in a Suit for Divorce.
    But such dower interest cannot be assigned and set off in the divorce suit.
    Appeal by plaintiff,'Mina L. Holmes, from a judgment of tbe District Court of Steele County, Thomas S. Buckham, J., entered February 13, 1893, granting ber a divorce, but refusing to assign dower to ber in tbe same action.
    
      Geo. N. Baxter, for appellant.
    .1878 G-. S. cb. 62, § 24, provides that when a divorce is ordered for tbe cause of adultery committed by tbe busband, the wife shall be entitled to ber dower in bis lands, in tbe same manner as if he were dead. Tbe word dower in this section must be considered to mean a life estate in tbe homestead of tbe busband and an estate in fee in one-third of bis other lands; for this is tbe interest which a widow now has in tbe lands of a deceased busband under the laws of this state. Morrison v. Rice, 35 Minn. 436; 'Wait v. Wait, 4 Barb. 192; In re Rausch, 35 Minn. 291.
    Where tbe husband’s estate consists of a homestead only, dower under our statute is identical with dower at tbe common law, and where tbe estate is not a homestead, our law differs from tbe ■common law only by giving an estate in fee instead of for life. Tbe claim of tbe plaintiff to dower was clearly embraced in tbe controversy. It was distinctly set forth in tbe allegations of tbe complaint and in tbe prayer for relief. It was properly united witb tbe claim for divorce, under 1878 G. S. cb. 66, § 118, subd. 1. Pomeroy, Eem. § 471.
    Tbe defendant may claim bere, wbat was not asserted below, that plaintiff must resort to a separate action to have her dower assigned, or institute proceedings for partition. This contention may possibly be open to him on tbe record, although tbe court below proceeded upon an utter denial of plaintiff’s right. Smith v. Smith, 13 Mass. 230, was decided in 1816. Tbe language of tbe statute there under consideration differed materially from ours.
    
      Sawyer & Sawyer, for respondent.
    We are not warranted in assuming it to have been the intention of tbe Legislature, in enacting 1878 G. S. cb. 62, § 24, to require such divorced wife to be allowed whatever estate in her husband’s real property any subsequent statute might give a widow. Had that been tbe intent, it is far from unreasonable to infer that it would have been so stated. An innovation upon tbe common law is not thus recklessly to be extended by construction. Under our present statutes of distribution, in certain cases tbe widow receives in fee simple tbe entire realty of her deceased husband. Does she desire a decision bere directing that she be awarded tbe entire real property of her husband in case be dies childless.
    To a large extent, if not wholly, under our present statutes of descent and distribution, tbe rights or interests of tbe surviving husband or widow are assimilated to, and have become identical witb, that of an heir, taking as an heir, rather than a dowress or claimant to curtesy. Band-all v. Kreiger, 23 Wall. 137; Guerin v. Moore, 25 Minn. 462.
    If plaintiff is entitled to any interest in tbe lands of defendant, it must be obtained by another and different action. It is submitted that Smith v. Smith, 13 Mass. 230, is in point, and that tbe court was not authorized to award dower.
   Vanderburgh, J.

■ The plaintiff’s cause of action is for a divorce on tbe ground of tbe adultery of tbe defendant. In her co'm-plaint sbe demands that sbe be adjudged to have ber dower in defendant’s lands as if be were dead, and under tbis relief sbe claims to be entitled to- bold tbe homestead of defendant for life, and an equal undivided third of all other lands of which be was during coverture seised, and to be allowed alimony. Tbe court adjudged tbe plaintiff entitled to a divorce on tbe ground stated, and awarded alimony, but refused dower, or tbe provision in lieu of dower, provided for by tbe present statute.

There is no doubt that 1878 G. S. ch. 62, § 24, secures to tbe wife, in tbe cases specified, an unqualified right to dower in tbe lands of ber husband as if be were dead. By tbe statute in force when tbis section was enacted, tbe widow’s right of dower, substantially as at common law, was preserved to ber. 1851 R. S. ch. 49, § 1. By Laws 1875, ch. 40, estates in dower eo nomine, as then existing, were abolished, and, in lieu thereof, provision was made for a life estate in tbe homestead of tbe husband and an undivided one-tbird of all other lands of which be might die seised. By Laws 1876, cb. 37, and again in tbe Probate Code, enacted in 1889, tbe subject is revised, and, with some changes, tbe provisions of the act of 1875 are retained, and incorporated under tbe bead of “Title to Real Property by Descent.” Now, under section 24, in question, is tbe rule to be applied as tbe term “dower” was used and understood when that section was enacted, or is it to be given an enlarged and extended application, so as to embrace tbe present liberal provisions for tbe wife made out of bis estate on tbe death of ber husband? Estates in dower have been changed and enlarged in many of tbe states by legislative enactment, (Noel v. Ewing, 9 Ind. 46; Smith’s Appeal, 23 Pa. St. 9; Beard v. Knox, 5 Cal. 252;) so that it has come to be understood generally as tbe provision in tbe nature of dower which tbe law makes for tbe wife from tbe estate of ber deceased husband, and it is contingent only upon tbe seisin of tbe husband and bis death, and beyond bis power to divest. Tbe present provisions for tbe wife, above specified, were clearly intended to be in lieu of dower, and retain its essential features. Tbe interest thereby created is inchoate upon tbe marriage and seisin, and becomes absolute at bis death, and is thus distinguishable from other provisions made for ber as heir in certain contingencies. Her estate extends to the homestead and one-third of other lands of which her husband is seised during coverture, and cannot be divested without her consent. Unless it be held that any material change in the law of dower as it stood when 1878 G. S. ch. 62, § 24, was enacted would operate as a repeal of that section, or make it inoperative, we are of the opinion that the term “dower” therein must be interpreted to extend to the present statutory provisions referred to. The estate under consideration, thus created for the benefit of the wife, has always since the act of 1875 been treated by this court as in the nature of dower, and governed by the same rules of legal construction. In re Gotzian, 34 Minn. 159, (24 N. W. Rep. 920;) In re Rausch, 35 Minn. 293, (28 N. W. Rep. 920;) McGowan v. Baldwin, 46 Minn. 479, (49 N. W. Rep. 251;) Dayton v. Corser, 51 Minn. 406, (53 N. W. Rep. 717.) When, therefore, a divorce is ordered for the cause of adultery committed by the husband, the wife will be entitled to dower, as provided by the present statutes on the subject, as if he were dead. The decree of divorce will establish her right to the estate, but we do not think the statute contemplates that it should be set off or assigned to her in the divorce proceedings. Nor would such decree be the basis of a writ of assistance to put her in possession, (2 Bish. Mar. & Div., Ed. 1891, §§ 1522, 1639;) but, if possession is denied her, she can recover it, and will be entitled to partition as in other cases. As she was not entitled to such relief in this action, the judgment must be affirmed.

(Opinion published 56 N. W. Rep. 46.)  