
    Nancy Ford versus Christopher Erskine.
    In an action for dower in woodland, if the demandant fails to show that the woodland is, in some way, connected with improved land in which she is dowable, so as to give her the right to take the wood therefrom, and that it is necessary that she should have and exercise that right, the action will not be sustained.
    Reported from JSRsi Prius, Rice, J., presiding.
    This was an action of dower. The principal question in controversy was, whether the premises, at the time the demandant’s husband alienated them, were of the description which is subject to the claim of dower.
    From the report of the case these facts appear; that the demandant became the wife of William Ford in the year 1817, at which time he was seized of a homestead farm containing about 250 acres, some portion of which had been cleared; that, in the year 1819, he sold and conveyed a part of this farm, about 75 acres, in one parcel, which, some years afterwards, the defendant purchased of Ford’s grantee. This parcel was then divided into three lots, by the defendant’s selling the middlemost piece, containing fifteen acres. The two other lots, one of twenty and the other of foi’ty acres, are the premises in which dower is claimed in this action.
    Nathan Ford, a brother of said William, testified, in substance, that he has known the premises from boyhood— worked on them both before and after his brother was married to the demandant; that the seventy-five acres were improved and occupied by his brother before he sold them; the cultivation was of the twenty acre piece, which was fenced; the forty acre and fifteen acre lots were used by his brother as a wood lot in connection with his farm; that, after the sale of the seventy-five acres, his brother had an abundance of woodland left.
    
      Ingalls & Smith, for the demandant.
    The R. S. of 1841, c. 95, §§ 1 and 2, (R. S. of 1857, c. 103, §§ 1 and 2,) established a plain and simple rule to govern the rights of dower. The decisions, before the enactment of that statute, if not contradictory, laid down rules of so uncertain application, that an investigation of the facts in each case became necessary, before the question of dower could be determined. See Conner v. Sheppard, 15 Mass., 164; White v. Willis, 7 Pick., 143; Kuhn v. Kaler, 14 Maine, 409.
    The statute is plain and explicit; is subject to no condition as to the quantity of woodland retained after the alienation by the husband. It provides that the widow shall not be barred of her right of dower in any woodland or other land used with the farm or dwellinghouse. Whether or not such lot was used with the farm wohld be a question that could be easily determined; but whether or not, in case of an alienation by the husband, he retained sufficient woodland, would be a matter of opinion, about which witnesses might differ, and where the transaction was remote, might be attended with expensive litigation.
    The demandant’s right of dower in one piece is not controverted. Upon the authority of decided cases she should have dower in the other piece. At the time of the sale by her husband, both parcels, with another piece, sold out of the middle of the original tract by the grantee, constituted one lot. As one lot, her husband conveyed it. Dower is to be assigned, as if no part of the original tract had been sold, and dower was now claimed in the whole, as one lot. The right of dower depends upon the condition of the entire estate, at the time of the husband’s seizin, and not upon the condition of the separate parcels of it, into which the immediate or subsequent grantees may have divided it.
    A part of the lot, when alienated, was cultivated and enclosed ; another part was woodland and not enclosed. A portion of the lot being then improved land, the widow is dowable in the entire lot. Mosher v. Mosher, 15 Maine, 371; Stevens v. Owen, 25 Maine, 94.
    
      J. M. Carlton, for the tenant.
   The opinion of the Court was drawn up by

Rice, J.

This is an action of dower. The marriage of the demandant, death of the husband, and seizure of the estate by him during coverture are admitted, as is, also, the fact that a demand for the assignment of dower has been made in due form. The only question presented is, whether the estate in which dower is demanded is, or was at the time of its alienation, of such character as to entitle the demandant to dower therein. The estate demanded, now consists of two parcels, one of which contains about twenty acres, of which ten, or thereabouts, was cultivated or meadow land, at the time the husband of the demandant conveyed the same. In this parcel the demandant is clearly entitled to have her dower assigned.

The other parcel consists of about forty acres of woodland, which, as the evidence shows, was-before and at the time of the conveyance by the demandant’s husband, occupied by him, with other woodland, as a wood lot connected with his homestead, but was open and unenclosed. It also appears that, after this was conveyed, there was an abundance of woodland remaining for the ordinary uses of the homestead.

The R. S., c. 103, § 2, provides that a widow shall not be endowed of wild lands of which her husband died seized; nor of wild lands conveyed by him, though afterwards cleared ; but she shall be in any wood lot or other land used with the farm or dwellinghouse, though not cleared. This has long been the settled law of this State and of Massachusetts. Mosher v. Mosher, 15 Maine, 371; Conner v. Shepherd, 15 Mass., 164; Webb v. Townsend, 1 Pick., 21; White v. Willis, 7 Pick., 143.

The reason for this rule is, that dower being an estate for life only, woodland can be of no practicable value to the tenant in dower, as it cannot be improved nor the wood cut off by her without liability for waste. As to woodland connected with the improved land, a different rule prevails, as in such case she would be entitled to wood necessary for fuel and for repairs of buildings, fences, &c. But, to be entitled to these rights, it must appear that she is dowable in an estate of which the woodland is part, on which there are buildings or fences, &c., to be repaired or supplied with fuel. Fuller v. Wasson, 7 N. H., 341.

It not appearing that the forty acre piece is in any way connected with any improved land in which the demandant is dowable, so as to give her a right to take wood from the same, and it not appearing that there is any necessity that she should have and exercise that right to take wood from this forty acre piece, she. fails in that part of her case. Kuhn v. Kaler, 14 Maine, 409.

Judgment must be for. demandant as per agreement of parties.-

Appleton, C. J., Cutting, Davis and Kent, JJ., concurred.  