
    John T. Ward vs. Francis Gardner & others.
    A widow’s right to dower is no bar to partition among tenants in common.
    Petition for partition, filed September 13, 1870. Trial before Morton, J., who reserved the case for the consideration of the full court; such order or judgment to be entered therein as should be proper. It appeared that Benjamin B. Appleton died intestate seised of the three several parcels of land described in the petition, and leaving a widow, one of the respondents, and four children. The petitioner owned one undivided fourth part of each of the parcels. The remaining three fourths were owned by others of the respondents. Each of these shares was subject to the dower of the widow, who was one of the respondents. Her dower had never been assigned or set out to her; The premises, since the decease of Mr. Appleton, had been let, and the rents had been shared between the parties interested, the widow receiving one third part thereof, the petitioner receiving his share with the others. The widow, April 13, 1872, duly demanded of the petitioner and the other respondents her dower in the several parcels.
    
      3. J. Thomas, for the petitioner.
    
      J. D. Ball, for the widow.
    
      L. Mason, for the other respondents.
   Wells, J.

The widow is not a proper party to these proceedings. If all the heirs or tenants in common do not join in setting out the dower, it can be done only upon proceedings brought for the purpose by the widow. Her right to have dower is no bar to a partition among the tenants in common. It cannot be set out, in whole or in part, by one tenant in common alone ; and he can neither commence, nor require her to commence, proper proceedings for that purpose. If he cannot have partition until dower is set out, it would be in the power of the widow and any one of the heirs or tenants in common to defeat it altogether during the life of the widow.

It is a matter of discretion in the court, at nisi prius, whether to delay the issue of a warrant for partition, and how long, in order to await proceedings begun or to be begun by her for the setting off of her dower. Judgment for partition.  