The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-10-21
THE LAW OF DOVER.
Judge Hanford's Opinion on the Rights
of Married Women in Real Property.

Judge Hanford's Opinion on the Rights
of Married Women in Real Property.
Judge Hanford, of the United States court,
Yesterday delivered an opinion in the case of
Henrietta G. Richards VS.. the Bellingham Bay
Land Company, which involved some interest
ing points in the law of dover in real property
The opinion in full was as follows:
This case has been heard upon a demurrer to
tne Dill, presenting the question whether a
widow whose husband died in the year 1889 is
entitled TO dover in lands situated in this state
which the husband owned, and in which he was
seized OF an estate OF Inheritance ut the time of
MS marriage TO her in 1866, and which he sold
ana conveyed in the same year by deed in the
execution of which she did not Join.
BY a statute of Washington territory in force
AZ the time OF the marriage and alienation by
the husband of the land In controversy, the
right of dover in lands situated in the territory
existed, and provisions were made for securing
aud protecting it Laws of Washington Territory,
1854 p The important sections OF this act
are the following: Section l. ''Be Ii enacted by
the legislative assembly of the territory of
Washington: That the widow ofevery deceased
person shall be entitled to dover, for
the use, during her natural life, OF one
third part of all the lands whereof her
husband was seized OF an estate of inheritance
at any time during the marriage, unless she
"When widow shall be entitled to dover out of
any lands which shall have been slened by the
husband in his lifetime and such lanas shall
have been enhanced in value after the aliena-
ton, such lands shall be estimated, in setting
out the widows dover, according to their value
at the time when they were so aliened." Section
Is. "a married woman residing within this terri
tory may have her rig ut of dover in any estate
conveyed by her husband, or by his guardian If he
be minor, lbarTedC by joining in the deed of
conveyance, and acknowledging the same, or by
Joining with her husband in q subsequent deed,
acknowledged in like manner" Section Il "a
woman may also be barred of her dover in all
the lands OF her hushband by jointure settled
on her with her assent before the marriage:
provioed, such 1ointure settled consists OF
freehold estate in lands for the life of the wife
at least, TO take effect in possession or profit i'm
medatey on the death OF the husband"
The nature of dover defined by this statute
is the same as at common law. 1t is during
marriage but a possibility which may or may
not develop into a right By the terms of the
get the only rights given are given to widows OF
deceased persons, and IL is plain that under il
no right could become vested in any woman
until her status as wife, changed by the death of
her husband into the character of a widow
Moreover the legislature at the end of the first
section added the words "unless she is lawfully
barred thereon to show explicitly that there
was nothing absolute in the right intended to
be conferred.
:. The decisions of the supreme court of the
united states, while recognizing a married
woman's inchoate right of dover as being valu-
able lSykes vs. Chadwick, Is Wallace, 14ll has
settled the law at least for this court, that wife
who has q right of dover only in the event that
she survive her husband has no present title to
her husbands land, either legal or eQuitable
tDolton VS.. Cain, Ii Wallace, APE that while in
this condition her interest in her husbands
land may be dealt with and entirely abrogated
BY the law making power tRandall VS..
kreiger, % Wallace, 1871; and that all rights
Incidental to and dependant upon the marriage
relation, coniugal as well as pecuniary, includ-
Ing DOVER may be taken away by mere arbi-
trary act OF the legislature, unless such act is
Inhibited by positive and ex press constitutional
provisions. Maynard vs.. Hill, lbs U. S. 190l
The legislature had the power to enact laws
alter the compliments marriage and before she
became Il widow, having the effect to cut off her
right of dover in lands of which her husband
was seized during the marriage. Has il done so?
This Z the onest ION he decided tha riChf
Claimed is not barred by any deed or act of the
complainant
several provisions referring to dover, which
were appropriate and necessary SO long as that
feature of our law remained; but will trace
the legislation upon the subject only from the
year 1863 as all important changes have occurred
since the session of the legislature held in that
year. The act OF 1863. relating to deeds con
tains section providing that married woman
shall not be bound 10y any deed affect
Ing her own real estate or releasing
dover. unless she shall be Joined by
her husband in executing the conveyance, nor
unless her own acknowledgements OF 1t shall be
taken and certified with prescribed formalites
laws OF 1865, ?. 4j0, sec. 8. The law govern
Ing the descent OF real property, enacted at the
same session, expressly recognizes dover by de-
claring that the provisions OF that chapter shall
not effect the title of widow tenant ia
dover. llb, T. "a, see. S52l The law relat-
Ing to willis provides that it shall not be so con-
strued a. 10 deprive a widow OF her dover [Ib.,
y. 2O7 sec. 5l.l Appropriate provisions for pro-
tecting aud securing the right of dover are
to be found III the various revisions
and amendments of the general laws
relating 10 conveyances of. actions to
recover. and partition of real property, aud 10
settle estates OF deceased persons, made prior
to the revision and compilation OF the laws in
the Code OF ISL lin addition 10 those cited
above see Laws OF 1859, p. lSl, sec. So3,
p. 1872 aS7. p sol, sec s. Laws of 1873, n 100,
sec 51l, y. las, sec. 1885, p. 4o2, sec. 3; Laws OF
Isl. p S2. sec 3. p rs, $50, p l22 SIS
These various provisions were all repealed 10y
being omitted from the Code of 1851, except the
.FsstsF tn p EfstA
tas, however, been repealed by the acts OF 1886
and ISIS. laws 1870 =. III, 1SS7-S, PIP. %, 81
The host important departure in tue legisia-
ton of the territory from common law prin-
eiples IN respect TO the property rights OF hus-
band aud vile y found in the community prop
erty law of 1869. Laws of 1852 p. 3lSl This
act does not in terms refer 10 the subject of
dover. A more radical change took place ia
4ls1l, in the act of tina; year declining the rights
flaws oi 1871, y. OIL Section % provides that
"nelther dover nor curteSy shall hereafter &C.
rrus," In the case OF Hamilton VS.. Hirsch,
Washington Territory Reports, 233
thc supreme court Of the territory
AeId that the legislature had power
b, and by this act did cut OF existing
shose husband died while that law IN
trrce, was not entitled To- dover In any lands ia
The territory. In 1873 the act of ISL was re
psSled. flaws OF 1873, p 4s6l and the law Of 1869
vas re-enaeted. 10, \, $50 In 1870 there was
revision of the law relating 20 the descent OF
property by an act entitled, AN act 10 regulate
the descent of real estate and the distribution
q personal property" flaws OF 1879. p ISL
Section provides in effect, that when any per
soashal die seized of any lands In lee simple, or
~ The life of another leaving sur
tssing husband or wife, such survivor shall in
snefN portion of such lands. section
eSdes that, THE provisions of section ! a.
~ taF Inheritance OF the husband and wife from
sssSa ether, apply only Co the separate property
Use decedants; and take the place OF ten
wh.eA are hereby sto.ished.h The same pro
,sss,sa We're re-cnaetei as part OF the chapter
css~s * 70 the descent of real estate In the
ssa act was $3.50 seG'Sn ,s,s ..An ~, re-
n Ia ano defining the property rights of
On q sna vile. Laws of 1879, p III Sec