The Hawaiian gazette., 1878-03-13
supreme Court of the Hawaiian
Islands.
AANA JACOBScs. THOS. CUAlIINS.
Before Judd J.-At Chambers.
Opiniou of the Court.

Before Judd J.-At Chambers.
Opinion of the Court.
This is an action OF ejectment to recover the
one undivided third part. as the right OF
dover of the plaintiff in and TO certain tract
of land situate IN WaimanalO, Oahu. and for
damages.
The defendant demurs on the ground that il
does not appear by the declaration that the
plaintiff dover has been assigned or apportiOn-
ed. To this the plaintiff replies that as he, hus-
band had. IN his life time sold the land in gues
ton to defendant, her dover could not be
appOrtioned as in ordinary cases and the object
of this proceeding is TO recover il.
Section 852 OF the Civil Code confers juris-
dction upon u Justice of the Supreme Court at
Chambers to admeasure dover.
Washburn in his Treatise on Real Property.
Vol. l., page 226, says that Z" where the heir or
tenant shall full TO assign the widow her dover
she may resort to certain iorms OF legal process
by which the same may be effected. One Of
these modes Ia by the common law action of
dover, another is by proceedings 10 equity. and
a third Is one provided IN most if not all the
States by chenp and summary process issuing
from Courts having cognlzance of probate matters.
In some cases these may be concurrent remedies.
But, generally speaking, the last is restrict
ed than either Of the others, aud confined 10
cases where the claim OF the widow is upon the
heir or devise of the husband. and is not the
proper one to resort TO when it is necessary to
determine a contested right of dover"
In French " Crosby % Me. 276 it was held
that the Judge of Probate could have no pow
er to assign dover to the widow out of any lands
purchased Of the husband during his lifetime
for of such lands he did not die seized. 1t is
no; the intention to submit any question Of title
| -. 4 -.
In Shealfe Y. 0NeII Mass. 9 it is held that
| in contested cases, where the intestate was not
at his death the tenant OF the iee where his
heirs have no interest or concern in the assign
Of dover; and where strangers, not presumed to
be conusant oil the proceedings 10 the Probate
| Court, have the whole interest and property
! subject TO the claim of dover; where the Pro
bate Court is Incompetent to any other purpose
| of partition-a jurisdiction TO assign dover would
! be as irexpedlent as it is unnecessary. 1t would
also be contrary to the principles Of common
| justice to consider proceedings, for such pur-
pose. as conclusive against stranger 10 the ad
mlnistraliOn of the deceased effects, holding the
! estate under title obtained from him in hi;
| lifetime. For such case, writ OF dover i;
the only adequate remedy after demand made
and q refusal to assign"
In Kent 1.-THE author says "Dower may
| Ue IeCUNtItu ny III buuliJ' Us wei us W
action at law. The Jurisdiction of chancety ovel
the claim of dover. has been thoroughly examin
ed, clearly asserted, and de1nltively established
1t is a jurisdiction concurrent with that o
law; and when the legal title to dover i.
in controversy, it must be settled by law
but If that he admitted or settled, full and ef
fectual relief can be granted to the widow. il
equity,--both us TO the assignment of dover anC
the damages"
In Great Britain the remedy was by writ o
right of dover and the writ of dover unde Mill
| hdbet-whch real actions as well as QuaTe i'm.
pedH and ejectment are the only real and mixec
actions retained by the Statute of and 4 o
William ".
In Massachusetts writs of right and possessory
real actions, much smpfed still exist In New
York the writ of dover as we'll as other rea
actions is abolished and the action of ejectmen
substituted and retained, after dismissing it
fictitious parts.
In this Kingdom, following New York. thu
action of ejectment seems to be used in place o
real actions, for in Nahnai VS.. Lai Haw. Rep
BIT, 1t was held that plaintiff in ejectmen
may take Judgment as co-tenant according t
the extent of his title.
Section Ills of the Civil Code reads. :" Ii
act ions to recover at law any specific property
real or personal, or any specific shares or inter
est, or right to property, real or personal il
kind as in cases of replevin or eiectment the
petition may be in a form which Is given.
1t seems to me that the plaintiff is authorized
by this statute to bring her action at law IL
recover her dover according to the statute form
which she has used, which has substantially
superseded the common law action of dover, an(
that as she must, in such an action, show thu
seizin of her husband and in fact everything
that will entite her TO have her dover ndmeas
ured, 1t was not necessary for her to have al
legged as having been already done the verl
thing she seeks to have done by the action nov
commenced, and doubt very much whether. il
the light of the authorities above quoted, a Cour
of Probate or of Equity would have entertained
her SUIT for admeasurement of dover out of land
in the possession of the defendant, holding it'll
under deed from her husband and contesting he
right.
Demurrer overruled.
r. G. Mcdowell for plaintiff.
E. Preston and G. Brown for defendant.
Honolulu. February 18th, 1878.