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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 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

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.

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

curtesy, 111


1907, 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




A married woman may bar her dower in four ways in Oregon:

(1) By joining in a deed of conveyance and acknowledging it as provided for by law or by joining with her husband in a subsequent deed, also acknowledged as provided for.119

(2) By executing a deed separately from her husband without mentioning barring of dower, provided that this separate deed, if barring an inchoate right shall not be executed to a stranger to the title but to the grantee of the husband. 120

(3) By a jointure settled on her before marriage with her assent. But this jointure must consist of a freehold estate in lands for the life of the wife, to take effect in possession or profit immediately after her husband's death. 121 The assent of an adult woman is to be expressed by her becoming a party to the conveyance by which the jointure is settled. If the young woman is a minor her father or guardian becomes a party to it.122

(4) By a pecuniary provision made in lieu of dower with her assent.123 If a widow did not assent before her marriage to the barring of her dower, or if the bar was made after marriage, she might make an election after her husband's death between the jointure and dower but she may not have both.124

If any lands have been left to a woman or other provision made for her in a will, she may elect to take the lands willed to her, or her dower, but she may not take both unless it appears plainly in the will that the husband intends her to have both.125 If within one year after her husband's death she has not requested to have the dower assigned, she shall be deemed to have elected the jointure or the devise.126 If she has been lawfully evicted of her dower or jointure she may be endowed of it again but the statute127 warns a woman against permitting waste or damage on the share of the estate she receives, for she may be liable to the next inheritor if she does it 128

A provision for the widow's support during the settlement of the estate is made by allowing her to remain in the dwelling house for one year after her husband's death without being chargeable for rent and she is to have reasonable sustenance for a year, and this129 in lieu of dower.130 If her dower should be withheld by any means and she recover it by an action, she may also recover damages for the withholding of it to the extent of one-half the annual value of the mesne profits of the lands of her recovered dower.131

Once a widow has accepted an assignment of dower in satisfaction of her claim upon all the lands of her husband, she may not make any further claim against the heir of her husband unless she has been lawfully evicted of the lands assigned.132 But if the widow is the aggressor and when she has not a dower right, succeeds through collusion with a guardian of the minor heirs, in obtaining a dower right in the land to which these minors or any other person is entitled, the persons so injured may when they reach their majority have an action against the widow to recover the lands wrongfully awarded for dower.133

On account of the married woman's separate property acts which began as we have shown, with a constitutional provision, confusion often existed in lay minds as to what power a married woman actually possessed to dispose of her property by deed and by will. The statute of 1878, mentioned earlier, emphasized the disability of either husband or wife as to exclusion of the other, by mutual consent, from curtesy or dower. This law which was based on an Iowa statute said: “When property is owned by either husband or wife, the other has no interest therein which can be the subject of contract between them, or such interest as will make the same liable for the contracts or liabilities of either the husband or the wife who is not the owner of the property, except as provided in this act” 134

What the act really intended was explained by a judge called upon to decide the following case. A man, owner in fee simple of a parcel of land, about to abandon his wife, conveyed it to her by deed and covenanted

that neither he nor his heirs would lay claim at any future time to a title in the land. Less than ten years later the wife died and the husband, deciding that he wanted the land, tried to obtain it on the plea that under the statute just mentioned (Olson Code, Section 9743) he had no right to convey it. The judge in his decision, quoted an Iowa decision to the effect that “the section refers to the interest which a husband or wife holds in lands owned by his or her spouse which arises under the marriage relation. It does not refer to a property interest that may be based upon a contract or may be derived from sources other than the marriage relation. The section evidently contemplates and includes in its language the dower estate'.1

In another case, the widow of a man brought suit to regain a dower right which she had “sold” to her husband for less than one-tenth the value of the lands. The Court declared that a "conveyance or release to the husband by the wife of her inchoate right of dower is a nullity". The reason for the exclusion of estates or interests growing out of the marriage relation from the classes of property concerning which a husband or wife may contract with each other is obvious enough. “These estates have their origin in public policy. They tend to strengthen the marriage relation and to the same extent they preserve valuable property interests the fruits of their joint lives

and in a measure render him or her independent of the vicissitudes of fortune's 138

On the other hand, judges have declared at various times that a woman, even with the consent of her husband, could not devise her separate property so as to deprive him of his estate by the curtesy after her death 137 nor could a husband and wife about to separate, contract by papers executed mutually, so that certain land owned in fee by him should be “exclusively” his and land owned in fee by her should be "exclusively” hers, 80 as to deprive either of dower or curtesy rights; and if a husband attempts to defeat his wife's dower in his real estate by a transfer of it to a third person, that person will be held to have received it in trust for the


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