Bachman v. Chrisman

The opinion of the Court was delivered by

Lowrie, J.

The widow’s interest in the real estate of her deceased husband in our state does not come within the ordinary definition of dower, because that refers to the common law provision for widows. But it is a statutory substitute for that provision, and may very well be called statutory dower. Like dower at common law, it is a defined interest in her late husband’s lands, arising at his death, and is a freehold estate. If she marries again, her new husband acquires the same interest in it as he would in any other life estate of hers, and the interest thus acquired by him would be liable for his debts. If the marriage took place before the Act of 1848, the estate of the husband became vested by the marriage, and that Act was not intended to divest it. Morality and the constitution forbid such an intention.

Such is the present case, and the estate which this husband acquired by the marriage over his wife’s statutory dower passed by tbe sheriff’s sale to the purchaser. The proceedings in partition, which took place after the judgment on which the sale was made, did not affect the right, except by defining it. They fixed the share to which the widow, or her new husband through her, was entitled; and that share passes to the purchaser as the legal assignee of the widow during the husband’s lifetime, if the estate so long continues. The lien of the judgment-creditor attached to it as real estate, and as such it was seized in execution before any decree in the partition case. The subsequent decree, even if it did, as between the parties to' it, change the character of the estate, could not affect the process which the judgment-creditor had commenced.

Judgment affirmed.