
    Abbott v. Bosworth.
    1. Where the signing and sealing of a lease for ninety-nine years, renewable forever, are attested by hut one witness, the lessee acquires only an equitable title.
    3. To entitle a widow to dower in an equitable estate of her husband he must have owned said estate at the time of his decease. Rands v. Kendall, 15 Ohio, 671, followed.
    Error to the Superior Court of Cincinnati.
    This was an action by Mary Jane Abbott against Henry S. Bosworth, for dower in the south half of the premises below described.
    
      Tbe court found the following facts, and upon them gave judgment for the defendant.
    “1. On February 1, 1840, the trustees of Lane Seminary, by indenture of that date, and, recorded in book 104, page 480 of the records of said county, demised to Jonathan Ely, his heirs, executors, administrators, and assigns, a tract of ground fronting 167 34-100 feet on Elm street, by 406 6-10 feet on Locust street, for 99 years, from October 21, 1839, renewable forever on the same terms, for an annual rent of thirty-one dollars, which Ely for himself, his heirs, etc., covenanted to pay. Said lease was duly executed, and acknowledged, save that there was but one subscribing witness.
    “ 2. By an instrument in writing, without date, but acknowledged May 8, 1841, and attested by one witness only, and indorsed on the original lease, Jonathan Ely, in consideration of fifteen dollars, paid by Isaac C. Abbott, sold and conveyed to the said Abbott, his executors, administrators, and assigns, ‘the within lease and all and singular the within demised premises.’
    “ 3. On June 25, 1841, Isaac O. Abbott, in consideration of $1.25, demised all his claim, title, and interest to the south half of said laud to Leonard Ii. Nason, for the unexpired term of said lease and renewable forever, Nason covenanting in the instrument to pay to the trustees of Lane Seminary, sixteen dollars per annum rent, payable on the same days as the rents reserved in the original lease.
    “ The plaintiff, who was the wife of said Abbott, did not join in this instrument.”
    The trustees of said seminary at the date of the lease to Ely held the title in fee. The defendant now holds through sundry mesne assignments the interest acquired by Nason. Isaac C. Abbott died in 1876. Upon this state of facts the plaintiff claims that she is entitled to dower in said south half of said premises.
    
      O. D. Robertson, for plaintiff in error.
    
      Sage <& Hmlcle, for defendant in error.
   Boynton, O. J.

To entitle the plaintiff to dower in the premises demised by Isaac C. Abbott to Nason, it must appear that sncli estate was one of inheritance within the meaning of the act relating to dower, passed January 28, 1823 (1824). 29 Ohio L. 249. The first section of that act provided, that the widow of any person dying shall be endowed of one full and equal third paid of all lands, tenements and real estate of which her husband was seized, as an estate of inheritance, at any time during the coverture. And of one-third paid of all the right, title and interest, that her husband at the time of his decease had in any lands and tenements, held by bond, article, lease, or other evidence of claim.

By the act of March 5, 1839 (2 S. & 0. 1142), it is provided, “ that permanent leasehold estates, renewable forever, shall be subject to the same law of descent and distribution as estates in fee simple are or may be subject to.” If it be granted that the effect of this provision is to convert permanent leasehold estates into estates of inheritance, where the instrument creating the estate is properly executed and acknowledged, and that the widow of the lessee is consequently entitled to dower in the leasehold premises, there still is an insuperable objection to the plaintiff’s right of dower in the estate or interest assigned to her husband by Jonathan Ely.

The lease to Ely from the trustees of the seminary had but one witness, and his lease to Abbott had but one. Consequently neither of them acquired any legal title to the premises demised. The first section of the act to provide for the proof, acknowledgment and recording of deeds and other instruments of writing (1 S. & 0. 458) requires the signing and sealing of all instruments in writing by which any land, tenement or hereditament shall be conveyed, or otherwise affected or incumbered in law, to be acknowledged by the grantor or maker in the presence of two witnesses, who must attest such signing and sealing, and subscribe their names to such attestation. By the ninth section of said act, a lease of school or ministerial lands for a term not exceeding ten years, and of any other lands for a term not exceeding three years, is excepted from this requirement.

The lease in the present case does not fall within the class not required to be acknowledged. It was a lease for ninety-nine years, renewable forever, and to create thereby a legal estate or seizin, its execution attested by two witnesses, was an indispensable formality. Hence, the estate acquired by Ely, and the only one he could part with, was wholly equitable; and had he possessed a legal estate instead of an equitable one, Abbott could have acquired but an equitable interest under a lease attested by but one witness. To entitle a widow to dower in an estate of which her husband had an equitable title only, he must have owned such equitable estate at the time of his decease. Rands v. Kendall, 15 Ohio, 671.

Judgment affirmed.  