dissenting. — As I understand, a widow at common law cannot before assignment convey her dower to a stianger by any of the ordinary modes of conveying freehold estates, so as to vest the legal interest in her grantee. Tompkins v. Fonda, 4 Paige’s Ch., 448. A widow’s dower before assignment is a mere right in action and nothing more. Rayner v. Lee, 20 Mich., 384. She cannot maintain ejectment before assignment. Shields v. Batts, 5 J. J. Marsh., 12. It may be released, but the widow cannot invest another with the right of action. Cox v. Jagger, 2 Cow., 638. She had no right of entry until her dower was assigned. Stedman v. Fortune, 5 Conn., 464, citing Litt., §§ 36, 53; 2 Black. Com., 134, 139; Bac. Abr., title “Dower B.”
The widow was entitled to possession during her quarantine, a period of forty days after her husband’s death, and the dower, being unassigned, could not be set up against one holding the fee after the expiration of the quarantine. Cavender v. Smith, 8 Iowa, 360. The right of the widow to sell her dower before it has been assigned has been usually, if not universally, recognized in equity, and such interest set apart to her grantee or assignee. Huston v. Seely, 27 Iowa, 183, and authorities there cited.
• If she is in possession and entitled to an immediate assignment, and has received the whole income of the premises, either as guardian of the heir at law, or otherwise, she, upon taking an account thereof, will be entitled to retain her third, *617although her dower has not been assigned. She has no right, therefore, in conscience or in equity to deprive her creditors of the benefit of her right of dower, for the Satisfaction of their debts, by continuing in possession with the heirs and neglecting to ask for an assignment. Tompkins v. Fonda, before cited.
It will be readily seen that tire widow’s right under the statute is very different from what it was at common law. There is no -substantial difference between the law of 1862 and the Code, and it was said by Beck, J., in Mock v. Watson, 41 Iowa, 241, that the rules and principles found in the books applicable to the estate of dower are inapplicable here. Such is the rule in Indiana, where there is a similar statute. Gaylord v Dodge, 31 Ind., 41.
In 1864 the defendant, under the statute, became entitled to an estate in fee simple, which at once on the death of her husband became a vested interest. It was unnecessary for the full and complete protection of that interest that it should be assigned or set apart. She and the heirs of her husband, from the moment of his death, became tenants in common, and partition could be had by either. She could sell and convey her interest to a stranger, although no assignment had been made, and her grantee would become entitled to all her rights. If no partition was had she would be entitled to her share of the rents and profits, whether in possession or not.
Being invested with such an estate as this, the defendant contracted debts, for aught that appears for her support, to enable her to live, and it may well be assumed credit was ■extended to her on the faith of said estate.
Why drive the creditor into equity ? The estate is legal— there is nothing of an equitable nature pertaining thereto. The Code provides that any property of the defendant not exempt from execution may be attached (section 2949), and the same is true as to executions. From the time of the levy of ■either a lien is created. The statute further provides that *618judgments of courts of record are liens on the real estate of the defendant in the county where the judgment is rendered. Code, §§ 2882, 2883.
There is, then, according to the opinion of the majority, a .fee simple or legal estate which cannot be attached or levied on under an execution against the owner, and on which a judgment against such owner is not a lien. To my mind the mere statement of such a proposition is the strongest possible argument against it.
In Connecticut it is held that the statute gives the widow the right of possession, and that her right of entry does not depend upon an assignment, and that she and the heirs are tenants in common, and that the - unassigned dower of a widow can be taken on execution for her debts. Stedman v. Fortune, before cited, and Wooster v. Lyman Iron Company, 38 Conn., 256; Greathead’s Appeal, 42 Id., 374. These decisions are based on the construction given the statute as to the right of entry and possession before assignment, and are the logical results of such ruling. These decisions, it seems to me, are clearly applicable to our statute.
It having been held that the right of the widow, whether called dower or distributive share, vests in her free from 'the debts of her husband, her rights are amply protected, and when she succeeds to the estate it should be held liable for her debts.
The fact that she may have her right assigned from the aggregate of the lands and not in each particular tract can make no difference, because the creditor only gets, in the tract attached or levied on and sold, whatever right the widow had therein. If she had none he gets nothing. If she had an interest, and her right is afterward set apart, it will prove an easy matter to adjust her interest. Her rights of homestead, of course, cannot be affected by any levy or attachment. But it is useless to discuss these matters, as the record fails to disclose that the husband died seized of any other lands than *619those attached, and it sufficiently appears the defendant is, and' ever since the death of her husband has been, a resident of another State, and, therefore, is not entitled to a homestead! right in the lands in question. Eor these reasons I "am unable to assent to the foregoing opinion.