
    Catherine R. Downey vs. Charles A. King.
    Suffolk.
    December 9, 1908. —
    February 23, 1909.
    Present: Knowlton, C. J., Morton, Hammond, Braley, & Rugg, JJ.
    
      Dower. Husband and Wife.
    
    Discussion by Knowlton, C. J. of the effect of the enactment of R. L. c. 132, § 1, and c. 140, § 3, upon the rights of a surviving husband after the death of his wife and of a surviving wife after the death of her husband.
    Under R. L. c. 132, § 1, a widow cannot have a common law dower right in land of which her deceased husband was seised during her coverture unless she files her election to claim such dower in the registry of probate within one year after the date of the approval of the bond of the executor or administrator of the will or estate of her deceased husband.
    Writ oe dower, dated April 16, 1904, under R L. c. 180, by the widow of Martin E. Downey, who died intestate on December 21, 1903, to establish the demandant’s dower right in two parcels of land in that part of Boston called Jamaica Plain.
    In the Superior Court the case was tried before Stevens, J. Besides other instruments, there were put in evidence the probate papers of the estate of Martin E. Downey, consisting of a petition for administration by Catherine R Downey, and a bond on which it was stated that in the belief of the petitioner there was no real estate. It was admitted that no claim of dower was filed in the Probate Court; that proper demand, under R L. c. 180, was made by the demandant; that the demandant was the widow of Martin E. Downey, and that Martin E. Downey acquired title to the property in question under a certain deed.
    Issues were framed for the jury as to whether the demandant executed, authorized or ratified the signatures on a mortgage deed from Downey to the Boston Safe Deposit and Trust Company dated November 4, 1895, and a mortgage from Downey to King and others dated May 27, 1899, which the jury answered in the negative.
    The demandant asked the judge to rule that upon the law, the evidence and the findings of the jury, she was entitled to have her dower in the premises set off to her. The judge refused so to rule, and ordered a verdict for the tenant. The demandant alleged exceptions.
    
      J. M. Graham, for the demandant.
    
      S. H. Batchelder, for the tenant.
   Knowlton, C. J.

This writ was brought by the demandant, the widow of Martin E. Downey, to recover her dower in two parcels of land owned by the tenant.

The R. L. c. 132, § 1, is in part as follows: “ A husband shall, upon the death of the wife, hold one-third of her land for, his life. Such estate shall be known as his tenancy by curtesy, and the provisions of law applicable to dower shall be applicable to curtesy. A wife shall, upon the death of her husband, hold her dower at common law in her deceased husband’s land. Such estate shall be known as her tenancy by dower. But in order to be entitled to such curtesy or dower the surviving husband or wife shall file his or her election' and claim therefor in the registry of probate within one year after the date of the approval of the bond of the executor or administrator of the deceased, and shall thereupon hold instead of the interest in real property given in section three of chapter one hundred and forty, curtesy or dower, respectively, otherwise such estate shall be held to be waived.”

Section 3 of c. 140 provides for the distribution of property not lawfully disposed of by will, and gives to a widow, if her husband leaves issue, one third of his personal property and one third of his real property remaining after the payment of his debts, the charges of his last sickness and funeral, and of the settlement of his estate ; if he leaves no issue, it gives her $5,000 and one half of the remaining personal property, and one half of the remaining real property, and if he leaves no kindred, it gives her the whole of the remaining real and personal property. It makes a like provision for a husband surviving after the death of his wife.

The enactment of these statutes worked a material change in the rights of a surviving husband after the death of his wife, and of a surviving wife after the death of her husband. The law gives a fractional share in fee in real property, which in most cases is more valuable than an estate by dower or by curtesy. The section first quoted provides that a husband shall hold one third of his deceased wife’s land for life, provided he files his election or claim therefor within one year. If he does this he holds this statutory tenancy by curtesy, instead of the fractional share in fee to which he otherwise would be entitled. This provision takes effect upon her death, and applies only to the land which she then owns. Eights of curtesy which existed when the statute took effect can be claimed in the same manner,but, if so claimed, the husband can take no other interest in any part of the wife’s real or personal property. Except the rights of curtesy preserved and the tenancy by curtesy created by this section, curtesy is abolished by the statute.

Dower at common law is dealt with somewhat differently. It is not abolished for the future, but is continued for the benefit of wives afterwards married, as well as of those married previously, subject to the provision that a wife, to avail herself of it, must file her election in the registry of probate, and, in that case, must take the dower instead of her absolute fractional share of her husband’s real estate, but without giving up her share of his personal property. The intention of the provision is to give a widow her election to take the prescribed fractional share of the real estate absolutely, or to take her dower at common law. Unless she files her election to take it she waives her right of dower at common law. This dower at common law includes an interest in all the property in which her husband had a freehold estate at any time during her coverture, except when she has barred it in some way recognized by law. See St. 1854, c. 406 ; Pub. Sts. c. 124, §§ 3, 5,10; c. 174, §§ 1, 10.

The contention of counsel that the provision for assigning dower and curtesy by the Probate Court implies that the dower referred to is only in land of which the husband died seised is not well founded. Of course, the provision for assigning dower . by the Probate Court does not apply to lands not owned by the husband at the time of his death, when her right of dower in them is called in question. But that was so under the similar provision before this change in the statute, and this provision has no significance upon the question before us.

As the demandant failed to make the election referred to in the statute, she waived her right of dower at common law in her husband’s property.

It is unnecessary to consider the other questions raised by the bill of exceptions.

Exceptions overruled.  