Laws, by omitting the clause which made married women one of the classes of persons under disabilities to whom the limitation of time for commencement of actions applied.81

DOWER.

Oregon retains on her statute books, provision for both dower and curtesy rights with some modifications of the common law rulings. The first territorial Legislature in its act on "Wills", permitted every person twenty-one years of age and upwards to "devise all his estate, real, personal and mixed, and all interest therein, saving to the widow her dower" 82 It seems to have been left for the Code of 1855 to say what part of the estate this should be, how barred or assigned. These provisions have been retained by the state government and with but few modifications in the past sixty years, are in force today.

The 1855 Code83 entitled a widow to the use, during her life of one-third part of the inheritable lands of which her husband was in possession at his death, unless she was lawfully barred of them; in 1893, this was increased to one-half part and still remains the law.84 In 191785 a provision was added that she might choose, instead of one-half part for use during her life, onethird part of the whole of her husband's lands, to have as her own in fee in her individual right, but when she was entitled to this election, she was also required to begin proceedings for the assignment of her dower within one year after her husband's death. If she did not do so, the Probate Court could assume that she had elected to take the undivided one-third in fee,86 but the clause giving her her choice between one-half part for use for life, and one-third part in fee, was repealed in 1919.

The original provision regarding the husband's exchange, mortgaging or purchasing of lands, is in force today. If a husband exchanges his lands, a widow may not have dower of both, but may make her election of either;87 or if he has executed a mortgage on his estate before marriage, the widow is entitled to dower before

the claims of any other person are settled except those of the mortgagee who has the first right.88 When a husband has purchased lands during coverture and at the same time mortgaged his estate in such lands to secure the purchase money, the widow is not entitled to dower as against the mortgagee even though she did not unite in the mortgage, but she is entitled to dower as against all other persons.89 In case of a surplus after such a mortgage sale, the 1855 Code gave the widow the interest or the income of one-third part of the surplus as her dower for life.90 The 1893 Statute increased this to onehalf part, which is the present law.91 Similarly, in case the heir paid the mortgage, after this payment was deducted from the value of the lands, the widow was to have the use, originally of one-third of the residue; after 1893, one-half of the residue for life.92 If the husband sold any lands which afterwards enhanced in value, the widow's dower was to be estimated on the value of the lands at the time of the sale.93 One situation to which this law applied was that of a widow whose husband had mortgaged his lands prior to 1893, the year this law was amended. Due to an error of the clerk, the actual judgment was not entered for several years after the confession of judgment had been made. Meanwhile the law increasing the widow's dower from one-third to one-half part was passed. The husband died ten years later, 1904, and when the estate was being administered the widow claimed onehalf part of the land sold, as her dower. The Supreme Court determined that she would be entitled to only one-third since the land had been mortgaged before the law was passed increasing the amount of dower.94 In another suit, the question concerned the interpretation and application of the word "enhanced". A federal judge admitted that the word "enhanced" taken in an unqualified sense is equivalent to "increased" and comprehends any increase of value, however arising. "But under the circumstances it ought to be construed to include only the value caused by the improvements put upon the land by the tenant

and not that which arises fortuitously or from what

may be called natural causes. I know that at common law the value at the time of alienation was the basis on which the value of the dower was estimated. But it was always an unjust rule and founded on special reasons that have no force at this time or in this country where it has been ably criticised and questioned" as a legal "juggle'' 95

When the right to dower is not disputed, the dower may be assigned in any county in which the lands lie,9 by the county court of the county in which the estate is settled. This court is directed by the statute to appoint "three discreet and disinterested persons" who shall set the dower off by "metes and bounds". An alien woman or a woman residing outside of the state is not to be deprived of dower in lands of which a husband had possession when he died.98 However, dower does not attach for such aliens to any lands which the husband had possessed during their marriage, for since dower is a matter of legislative creation, the legislature, in order to protect innocent purchasers may provide "that a non-resident woman whose very existence is probably unknown within the state and is practically disavowed by her husband shall not be entitled to dower of lands which he disposed of without her consent" 99

When the estate is not divisible as a mill or tenement, the dower may be assigned of the rents, issues and profits, to be had by the widow as a tenant in common with the other heirs 100 but the dower need not be assigned and the widow, with the children or other heirs may occupy the lands, if there is no objection by the heirs or may receive one-half part of the rents;101 the last clause was an amendation in 1893 of the provision of 1854, permitting the widow to receive one-third part of the rents.1 102 A mere right of dower before an assignment to the widow is only a chose in action, a claim, and is not such an interest in the real property as can be levied upon or sold under an execution against her property;103 nor can she convey to another person a legal right of possession of the land.104 It does not give her the right of possession of an estate in the lands, but it is only such an estate as that an action may be maintained by the

widow to recover possession of dower from one withholding it, and the damages for such deprivation.105 Furthermore, the courts decided that the act of 1862 making provision for the support of the widow and minor106 children was in lieu of dower.107 As to dower in an equity, the Oregon Supreme Court has repeated on various occasions that there is no dower in an equity in Oregon.108 In one case a widow brought suit to have dower assigned her in a piece of land at one time owned by her husband. It had been a donation land claim, the settler of which had contracted to sell it before the patent to it had been issued to him. It had changed hands several times before it reached the appellant widow's husband, who sold it though she did not join in the deed; before she made her claim for dower, the vendee of her husband had sold the land to a third person. The court declared that her husband's title was only an equitable one since Stark, the donation claimant held "all at his mercy', in case he did not prove up on it, and the widow had no dower right in an equitable estate.109

ESTATES BY THE CURTESY.

Estates by the curtesy for a widower were established by the Territorial Code of 1855.110 The curtesy provision in Oregon did not imitate common law practice according to which the "curtesy only became initiate by the birth of the child." A digest of the present Oregon law is that a widower is entitled as a tenant by the curtesy, to the use during his natural life, of one-half part of all the inheritable lands which were in his wife's possession at any time during their marriage, regardless of whether there were children born alive of the marriage, unless the husband is lawfully barred of the curtesy.1 It may be "admeasured, assigned and barred" in the same measure that dower may, and as far as practicable all the laws applicable to dower shall be applicable, in like manner with like effect to estates by the curtesy.

111

The modifications of the original law through which the present statute has evolved are as follows. In

1907,1 112 a phrase which read "the husband shall on the death of his wife hold all her inheritable lands for life" was amended thus: "the widower shall be entitled as tenant by the curtesy to the use during his natural life, of one-half part" of the inheritable lands of his deceased wife, unless lawfully barred from them. In 1913 the time in which an action might be brought by a surviving spouse to recover either dower or curtesy was limited by statute to ten years from the death of a decedent.113 In 1917 when the widow was given an election of one-third of her husband's lands, the same choice was given to the widower which was likewise repealed in 1919.114

Though dower and curtesy rights are equalized by statute, decisions of the courts permit curtesy rights to attach where dower rights do not exist. For example, it has been stated on several occasions that there is no dower in equity or in an equitable estate,115 though the curtesy attaches to an equitable estate in the wife as well as to legal estates,116 and a widow has no right of possession in lands until dower has been assigned.117

In a case where the curtesy right was allowed to a man whose deceased wife had deeded her separate property to the defendants in the suit, the judge said that possession of the wife's lands by the husband during her life was not a common law requisite of a curtesy. "His seisin, before issue was born alive was a freehold estate, jure uxoris, independent of the prospective curtesy estate which only became initiate by the birth of the child. In Oregon, prior to the adoption of the constitution, seisin of the husband in the lands of his wife from the date of marriage or from the time property was acquired existed without reference to the curtesy estate. In any event the fact that our constitution and statutes have deprived the husband of seisin in the wife's lands without expressly abolishing the curtesy estate but actually recognizing its existence, has been accepted by legislature and courts as a modification of requirements necessary to the creation of a life estate, and that seisin of the husband during the life of the wife is not now a condition coincident thereto❞ 118