The question presented is, whether dower can -be recovered by the plaintiff upon the following facts : The plaintiff’s husband gave her a deed of the locus, with covenants of warranty, dated in 1855, delivered in 1868, shortly before his death. As his executrix she returned no inventory of this real estate. The defendant holds under foreclosed mortgages given by the husband in 1863 and 1867. The widow remained in possession of the premises from the death of her husband in 1868 until 1878, being then ousted by the defendant. During the decade of possession by her she made some payments upon the mortgage notes. In 1883 she demanded her dower.
We are of the opinion that the action is maintainable upon the principle of the case of McLeery v. McLeery, 65 Maine, 172. The learned counsel for the defendant asks our consideration of an apparent distinction between that case and this. There the widow accepted a warranty deed of the fee after the husband’s death, when her claim for dower had become a vested interest. Here she accepted the deed before the death of her husband, while her right was inchoate merely and not vested. The difference does not seem to us to be an essential one.
*520The point most relied upon by the defendant evidently is, that the plaintiff, if not estopped from dower, merely by the acceptance of the deed from her husband, is estopped by her conduct towards other interests and parties. We cannot concur with the views advanced by the defense upon this proposition.
What acts has she done to create an estoppel ? She remained in possession. But she did not resort to any active means to keep the defendant out of possession. He ousted her when it pleased him to resort to a remedy. She paid portions of the mortgage debts from time to time. That was, presumably, a compensation or of the nature of compensation for the retention of the use and occupation of the premises. She endeavored to make the husband’s deed efficacious and valuable to her. Failing to do so, she abandons it, and proceeds for another right. She made no promises or representations in order to obtain the defendant’s indulgence.' She has received from him no consideration for a waiver. His mortgages were taken subject to her right of dower, and he has now the same legal rights that he ever had. The old theory of merger by estoppel has no living principle left in it that can apply.
Another question is whether the defendant has erected improvements which should be excluded from the premises out of which the dower may be assigned. Repairs merely are not deductible; while improvements in the form of additions or annexations are. The defendant added an ell containing a kitchen and dining room. That was evidently an improvment and a permanent addition to the estate. The defendant, in the calculations for division, must be allowed the actual value which the new ell contributes to the value of the whole estate. Reed v. Reed, 68 Maine, 568. That may be more or less than the cost, although the cost would, prima facie, be a fair criterion.
The assignment of proportions is for the appraisers or commissioners. If improvements are to be considered, the writ to be issued should require a calculation of them. If there should be omissions or imperfections in the work of the appraisers, a correction can be required before their report is accepted. The court may also act in advance in presenting rules, tests and *521theories for the instruction of the appraisers, whenever the •pleadings and evidence enable it to do so.
The damages for the detention of the dower are usually to be assessed by the jury, although that question is sometimes also referred to the appraisers. They are usually ascertained in advance of the writ of seizin issuable. But we see no impropriety in its being done afterwards. The forms are easily changed for such purpose, and are adaptable to circumstances.
Upon the facts reported, a writ of seizin should issue to assign and set out dower, allowing for defendant’s improvements; the parties to arrange how the damages recoverable may be ascertained.
Defendant defaulted.
Walton, Virgin, Libbey, Emery and Haskell, JJ., concurred.