The demandant’s claim for dower is founded upon the provisions of the Rev. Sts. c. 60, §§ 1, 2. Section 2 provides that “ if the husband shall be seized of land, subject to any mortgage which is valid and effectual as against his wife, she shall nevertheless be entitled to dower in the mortgaged premises, as against every person except the mortgagee and those claiming under him; provided, that if the heir-, or other person, claiming under the husband, shall redeem the mortgage, the widow shall either repay such part of the money paid by him, as shall be equal to the proportion which her interest in the mortgaged premises bears to the whole value thereof, or she shall, at her election, be entitled to dower only according to the value of the estate, after deducting the money so paid for the redemption thereof.”
The tenant claims under the husband, and whether the tenant redeemed the mortgages, or those under whom he claims, is not material. If the mortgage was paid or redeemed by Smith or by Sydenham Cook, it was redeemed by one claiming under the husband; and the demandant must repay her proportion, or take her dower out of the estate after deducting the amount so paid for redemption. If the mortgage given to the Colts is not to be " regarded as payment, but as a substitute for the mortgage before given to Ephraim Smith as guardian of and in trust for the Colts, the result would be the same. For, in this view of the case, the incumbrance of the mortgage continued till it was discharged by the present tenant. This seems to us to be the just and equitable construction of the statute.
Upon the marriage of the demandant with Obed Newton, he *50was seized only of an equity of redemption. In this equity only, she acquired by marriage an inchoate right of dower. The mortgage was never paid by her or her husband, or by any person for her or his benefit. During his ownership, there was no change in the mortgage. She has therefore her dower of all the estate of which he was seized during the coverture, when she takes dower of the estate subject to the mortgage.
The paroi evidence seems to be competent, though not necessary to the decision of the case on the first ground stated. Its effect is not to contradict a written instrument, but to show under what facts a payment was made.
Eaton v. Simonds, 14 Pick. 108, was decided before the passage of the statutes now in force, and could not have been decided as it was, under Rev. Sts. c. 60, § 2.
The demand was good, and broad enough to cover any interest the demandant had in the estate. She did not elect to pay her proportion. Her demand was therefore, in effect, for dower after deducting the amount paid on the mortgage.
The mode of assigning her dower will be that the commissioners ascertain -the entire value- of the estate, deduct the amount paid on the mortgage, and assign to the demandant for her life a portion of the estate equal to one thud of the residue.
Judgment for the demandant.