Opinion
March 1807.
At common law, the heir was bound to assign dower, and, until he had done so, could not maintain ejectment against the widow to recover the mansion house held by her. But this principle was changed by the Act of 1784, under which the widow must begin by filing her petition, and, if she neglect to do so and hold the mansion house, the heir may recover in ejectment. [See 10 Y. 494; 1 Hum. 13, 430.]
This was action of ejectment by the heir against the widow, for the mansion house of the deceased, and land adjoining. It was admitted that dower never had been set out, and that the widow continued to live in the mansion from the death of her husband, until her second marriage, and since. Upon the first argument WHITE; J., conceived the action could be maintained by the heir without assigning dower. OVERTON, J., was inclined to think otherwise. Upon the second argument, the judges concurred in opinion that, by the common law, the heir was bound to assign dower. Vide Co. Lit. 31 a, 32 b; 2 Bac. 375; 2 Hay. 4; Co. Lit. 34 b; 2 Bac. 368, 387, 392, 407, 423; 1 Hay. 188; 2 Bl. Com. 135.
But this principle was changed by the Act of April 1784, c. 22, § 9, which enacts, after reciting that the present mode of suing for dower was dilatory, expensive, and intricate, that the widow shall proceed by petition, c, upon which twelve freeholders shall be summoned, who shall set off one-third part including the mansion house, or a part of it (according to the value of the property), for the widow. This mode, and DO other, must be pursued at law; she should have filed her petition, and as sue did not do that, and as the title of the land is in the heir by descent, he must recover.
Verdict for the plaintiff.