This case is settled by authority. Sheafe v. O’Neil, 9 Mass. 9, was this very case of a mortgage made by the husband, in which the widow had not joined, and by which she was not bound. This rule is not altered, but, on the contrary, is confirmed and sanctioned by the Rev. Sts. c. 60, §§ 1-3. (See commissioners’ report.) Sect. 3 provides that “ when a widow is entitled to dower in lands of which her husband died seized, and her right to dower is not disputed by the heirs or devisees, it may be assigned to her, by the judge of probate for the county in which the estate of the husband is settled.” The assignment of dower, by the judge of probate, in the present case, was void, as against *416the mortgagees, it not being within the jurisdiction vested in him by statute. As against the mortgagees, the husband did not die seized of the premises. The power of the judge to assign dower is solely a statute power, and is not analogous to any proceeding of the probate court, as a court of ecclesiastical jurisdiction.
But the widow is not without remedy. Her husband having been seized during the coverture, and she not having released, she is entitled to her dower, against the mortgagees, by writ of dower. Rev. Sts. c. 60, §§ 1, 5, and c. 102.
As a general rule of law, it is held, that until assignment, a widow has a right, but no seizin. But, by statute, she may occupy lands in which she- is entitled to dower, with the consent of the heirs, without having her dower assigned. Rev. Sts. c. 60, $ 6.' The court are therefore of opinion that the present tenant is not a mere stranger, but one entitled to hold, with the consent of the heirs. She holds under and in right of her husband, who was the mortgagor; and she may, at her election, have a conditional judgment, the effect of which will be, that if she complies with the condition, her possession will not be disturbed, and the rights of the demandants will be fully preserved. Rev. Sts. c. 107, §§ 3, 4.