Baker v. Baker

Weston J.

delivered the opinion of the court, as follows:

The demand, which the statute prescribed prior to the institution of an action for dower, is intended to give notice of the claim ; and that the party is desirous of enjoying it, as soon as it can be conveniently assigned. It is an act in pais, not required tobe in writing, or to be done with any special formality or solemnity. It may be made either by the party in person ; or by some one deputed to act in her behalf. The assignment of dower itself need not be by deed or other instrument in writing ; the widow holding not of the heir or other tenant of whom she may demand it, but of her deceased husband, or by appointment of law. Conant v. Little 1 Pick. 189. The demand only ascertains the period from thirty days after . which her right to damages accrues, if her dower is withheld. There seems tobe no good reason therefore why the agency of the person deputed to make the demand may not be created by parol; as in a great variety of other cases, where the agent is thus sufficiently empowered to enter into contract, and to do many other acts,which bind his principal. This parol authority may be given directly by the principal to the agent, or communicated through the instrumentality of others. In the present case the plaintiff employed an attorney to take the proper steps to assert her right to dower. As a measure preliminary to the commencement of an action, the attorney by letter demanded her dower, in behalf of his principal. This letter he forwarded by the hands of another who, before he delivered it, had the express authority of the principal, recognizing and sanctioning the course pursued.

But it is contended that the demand is insufficient, because the person sent to make it by delivering the letter, was not authorized to receive the assignment. After demand made, if the party whose duty it is to assign dower, proceed to do it and assign it fairly, to the extent of the dowager’s right, he will have a good and legal defence against any further claim. If the demand is made by the widow in person, and the party in possession is disposed then to make the assignment, he can proceed to do so as soon as it can conveniently be done. If made through the intervention of another, and he is thus disposed, authority to demand may imply an authority to assent to, or receive that which is demanded ; or notice to the agent that he will then proceed may be deemed notice to the principal; and if she desire to be present she may receive notice in fact from her agent. If the party prefer, to make the assignment at some other time, within the thirty days allowed, he should give reasonable notice to her of the time when he proposes to make it.

It is agreed in the present case, that the tenant made no objection to the authority of the agent, and that he refused to set off the demandant’s dower ; denying altogether her right to be endowed of the land in question. The point therefore now made by the tenant, that the agent or messenger employed was not authorized to receive dower, does not seem to be entitled to much favor.

As to the demand being made upon the land, the statute does not require it; nor has any authority been adduced, in which it has been deemed necessary. It has been supposed to be analogous to those cases where, in order to be entitled to enter for condition broken for nonpayment of rent, it must on the day be demanded on the land. Great strictness was there required, because the estate was thereby defeated. In such cases, the rent was to be paid on the day when demanded. If in the assignment of dower,, the law required that it should be done when demanded, or on the day of demand, there might be a propriety in holding that the demand should be made upon the land ; otherwise, if demanded at a distance from the land, the party might not be able to assign dower, on the day of demand, although, he might be desirous of doing it. But the law allowing thirty days, within which to. perform the duty, after notice and demand of the claim, ample time is afforded to make the assignment, without the. necessity of a demand upon the land.

It appears to us that the land, in which dower was demanded, was, at the time of the demand, described with sufficient cer tainty. The tenant readily understood what was intended to be. communicated.

The demandant having, in the opinion of the court, a right by 'law to maintain this action, according to the agreement of the parties, the tenant is to be defaulted.