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war, is referred to the head of occupancy; but a discussion of this topic would occupy too much space. 8. To this head may also be referred the subject of good-will, (a) by which is meant the advantage accruing to any trade or business from an established custom. It is partly dependent upon mere locality, and partly upon personal reputation. The presumption is, that customers will continue to deal where they have been in the habit of dealing, all other things being equal; and this renders an old stand more valuable than a new one, independently of the reputation of those who conduct the business. Thus far, good-will is merely local; all beyond is personal. Both law and equity regard good-will as a valuable interest, capable of being bought and sold; but it is obviously difficult to measure its value, as we measure that of actual property; and therefore the parties interested must expressly fix a value by agreement, if they would have it recognized by courts. Questions of this sort generally arise upon a relinquishment of business. If the owner of a shop sells it, the local good-will passes of course to the purchaser without specific mention; but the personal good-will remains with the person, unless the contrary be stipulated; and even then he is not precluded from prosecuting the same kind of business at another stand, because contracts in restraint of trade are against public policy. Attempts have been made to draw a distinction between an agreement not to pursue the same business, and not to pursue the same kind of business; but it is too shadowy to be available. When a partner leaves or enters a firm, good-will is never taken into account, unless by express provision in the contract. So when a partner dies, the survivor succeeds to the entire good-will, without liability to account, unless the contrary was expressly stipulated. When, however, a court of equity decrees a sale of an entire stock in business, care is taken so to regulate the sale as to bring an increased price on account of the good-will, if this be practicable.

LECTURE XXVIII.

TITLE BY MARRIAGE.

§ 157. Dower. (b) The nature of marriage has already been described. One of the consequences of marriage, after the death of

(a) See Collyer on Partnership, 88; Smith on Commercial Law, 109; 1 Parsons on Contracts, 130.

(b) See 2 Black. Com. 128, 4 Kent, Com. 35; Park on Dower; Clancy on Husband and Wife; Bishop on Marriage and Divorce. Bright on Husband and Wife; Scribner on Dower. The history of dower is given at much length in Allen v. M'Coy, 8 Ohio, 418. Under the ordinance, it embraced all lands of which the husband was

one of the parties, is to give the other a life-estate in a part or the whole of the realty owned by the deceased. If the husband dies, the title thus acquired by the wife is called her dower. If the wife dies, the title thus acquired by the husband is called his curtesy. These have been already mentioned under the head of estates for life, their general incidents being the same as belong to all lifeestates; but in this connection they require a more particular consideration. By dower is meant the interest which the wife has in the realty of her husband after his death. At common law, there were several kinds of dower, and a full discussion of the subject involved a variety of nice distinctions; but in this country, or at least in this State, there is but one kind of dower which is provided for by statute; and thus we have another instance of simplification in the law of realty. Referring for details to the books, I shall consider who may be endowed; of what; how barred; and how assigned.

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Who may be endowed. The words of the statute are, the widow of any person dying." She must have been the actual wife of the party at the time of his death, unless divorced for his aggression. (a) Nor may she at the time have been living with an adulterer, though the mere fact of former adultery, if her husband has afterwards been reconciled, is not an objection to dower. Nor is the

seised during coverture, whether descendible or not. Betts v. Wise, 11 Ohio, 219. During the husband's life, it is too remote a contingency to be the subject of sale as a distinct estate. Douglass v. M'Coy, 5 Ohio, 522. A suit for dower abates by the death of the wife, and cannot be revived for any other purpose. Miller v. Woodman, 14 Ohio, 518. A widow in possession of dower, being evicted by title paramount, cannot sue on the covenant of warranty made to her husband. St. Clair v. Williams, 7 Ohio, pt. 2, 110. She cannot have dower in land donated for a market-house, though she did not unite in the donation. Gwynne v. Cincinnati, 3 Ohio, 24. She may have dower in wild lands. Allen v. M'Coy, 8 Ohio, 418. Schnebly v. Schnebly, 26 Ill. 526; Brown v. Richards, 2 Green (N. J.), 32. Contra, in some other States. Connor v. Shepherd, 15 Mass. 164; Johnson v. Perlee, 2 N. H. 56; Phillips v. Williams, 14 Maine, 411; Stevens v. Owen, 25 id. 94. But not in lands held in partnership, as against creditors. Greene v. Greene, 1 Ohio, 535, and Sumner v. Hampson, 8 Ohio, 328. Nor of which he was seised only as a naked trustee. Derush v. Brown, 8 Ohio, 412. Nor where a mortgage was given before marriage, and the equity of redemption released after, without her joining. Rands v. Kendall, 15 Ohio, 671. Nor where she joined in a mortgage of one lot, and this, with all others, was sold for less than the mortgage debt, by the administrator. St. Clair v. Morris, 9 Ohio, 15. She cannot have dower where the legal title was in her husband, and the equitable title in another at the time of the marriage. Firestone v. Firestone, 2 Ohio State, 415. Nor as against mortgagee in a purchase-money mortgage. Welch v. Buckins, 9 Ohio State, 331. She has dower in property of her husband mortgaged, of which he was seised during coverture, against all persons but the mortgagee. As to the effect of assigning dower on the rights of a mortgagee where he was a party to the proceeding, see Affleck v. Snodgrass, 8 Ohio State, 234. Carter. Goodwin, 3 Ohio State, 75. A sale under the act "to provide for the partition of real estate," of an estate held in common, divests the wife of a cotenant in fee of the estate of her inchoate right of dower therein. Weaver v. Gregg, 6 Ohio State, 547.

(a) A woman divorced a vinculo matrimonii, although for the husband's aggression, who marries again, cannot have dower in the lands of her first husband dying after such marriage. She is not then the widow of the first husband within the meaning of the statute. Rice v. Lumley, 10 Ohio State, 596. Where a wife has obtained a divorce for the fault of the husband, her subsequent marriage to another husband during the lifetime of the first does not bar her dower. Lamkin v. Knapp, 20 Ohio State, 451.

fact of her being an alien; since in this State aliens have the same capacities in regard to real estate as citizens. There is nothing in our statute of dower, or in that which prescribes the formalities of marriage, to determine whether a legal marriage according to the statute is necessary; but I presume the general rule applies in this case; which is, that in the absence of positive testimony of a legal marriage, proof of reputation and cohabitation as husband and wife will be received as prima facie evidence of a legal marriage. (a)

Of what. (b) The words of our statute are, 66 one full and equal third part of all the lands, tenements, and real estate of which her husband was seised, as an estate of inheritance, at any time during the coverture; (c) and of one-third part of all the right, title, or interest which her husband, at the time of his decease, had in any lands and tenements held by bond, article, lease, or other evidence of claim." The common law did not give dower in equitable estates; but the above words are understood to include all equitable estates; and thus a very unreasonable doctrine of the common law, which denied dower, while it allowed curtesy, in equitable estates, is here abolished. (d) The term "lease" used in the statute, probably has no meaning. For the interest of a lessee for a life terminates at his death; and that of a lessee for years, though renewable for ever, is mere chattel interest, except in certain cases pointed out by another statute, of which dower is not one. The effect of this statute, therefore, is simply to extend the right of dower to equitable estates in fee. You will, however, note this distinction, that a dower in legal estates extends to all land owned at any time during the coverture; but in equitable estates, only to land owned at the time of the decease. The statute does not say that the right thus acquired by the widow shall be for her life only; but this is implied in the very term dower. The widow is likewise entitled to remain one year in the mansion-house free from expense, unless her dower is sooner assigned. As to the seisin of the husband, we have already seen that there is no livery of seisin in Ohio, and that actual entry is never necessary to constitute a seisin. (e) The word here

(a) Case of Ferrie, 3 Bradford, Sur. R. 151, 249; 4 id. 28; Caujolle v. Ferrie, 26 Barb. 177. s. c. 23 N. Y. 90.

(b) The widow must elect between her dower and the provision made for her by her husband in his will, unless it plainly appears by the will that it was intended she should have both. Curwen, Stat. p. 1141; Act of March 10, 1860.

(c) She is, therefore, not entitled to dower in estates in reversion or remainder. Brooks v. Everett, 13 Allen, 457; Butler v. Cheatham, 8 Bush, 594. In New York it is extended to cases where the husband at the time of his death held land under a contract to convey. Hicks v. Stebbins, 3 Lans. 39.

(d) In Maryland, the law is the same as it is in Ohio. Lyon v. Gephart, 29 Md. 547. In Illinois, the wife has dower in all equitable estates of which the husband was equitably seised during coverture. Atkins v. Merrill, 39 Ill. 72. In Oregon she has no dower in equitable estates. Farnum v. Loomis, 2 Oregon, 29.

(e) At common law, the widow could have dower only in lands of which her husband was seised during coverture. Apple ». Apple, 1 Head (Tenn.), 348. By the Act of March 27, 1858, the widow has dower in real estate of which, at his decease, her husband held the fee-simple in remainder or reversion, after the termination of the prior estate. Upon her petition for dower, the grantee of her husband is not

means nothing more than ownership; and there is no distinction between seisin in law and seisin in deed. But there are several cases in which the mere legal seisin or ownership will not give a right of dower. Thus a trustee, without beneficial interest, has not such an ownership as will create the right of dower; (a) nor a mortgagee, who does not obtain possession either by ejectment or foreclosure; nor a purchaser who, at the same time that he obtains title, mortgages the land back for the purchase-money; (b) nor a purchaser against whom the vendor has an equitable lien for the purchase-money; (c) nor a partner, where the lands have been purchased with partnership funds, under articles stipulating that the whole property should be sold to pay the debts, and the firm is insolvent; nor the heir upon whom lands descend, charged with the debts of the ancestor; for in all these cases, there is a claim superior to dower existing in some other person. Nor can there be dower in lands owned for public or private burial-grounds; nor in lands dedicated by the husband to public uses, as for a street, common, or market-place; because in these cases the use is incompatible with dower. But there may be dower in wild lands, though while they remain such it is of no value. With these qualifications, this right of dower is of so transcendent a character, that the husband cannot by any separate act, as by alienating the land, or incumbering it with debts, deprive the widow of her right. Moreover, the statute expressly provides that if he should give up the lands by collusion or fraud, or lose them by default, the widow may still claim her dower; so that in this respect, he has no more power than he has over the separate lands of his wife.

How Dower is Barred. There are several ways in which a widow may be deprived of dower, when the ownership of the husband. would have been sufficient. 1. By Jointure. (d) The statute provides that if any estate be conveyed to a woman as a jointure, in lieu of dower, to take effect immediately after the death of the husband, and to continue during her life, this will bar her dower; but here her free consent is presupposed; and therefore if the jointure was made before she was of age, or after the marriage, she has her option, on becoming a widow, to take the jointure or her estopped from denying the seisin of her husband. Coakley v. Perry, 3 Ohio State,

314.

(a) White v. Drew, 42 Mo. 561.

(b) Welch v. Buckins, 9 Ohio State, 331. Mills v. Van Voorhies, 20 N. Y. 412; Boynton v. Sawyer, 35 Ala. 497; Wing v. Ayer, 53 Maine, 138; Fletcher v. Holmes, 32 Ind. 499; Folsom v. Rhodes, 22 Ohio State, 435. But when the mortgage was not acknowledged or delivered until sixteen days after the deed, held that the grantee acquired a sufficient seisin for the dower right of his wife to attach. Rawlins v. Lowndes, 34 Md. 639.

(e) Walton v. Hargraves, 42 Miss. 18; Cocke v. Bailey, 42 Miss. 81. So where lands subject to a vendor's lien are reconveyed by the vendee to the vendor in satisfaction of such lien, they pass free from dower, though the vendee's wife does not join in the conveyance. Rawlins v. Lowndes, 34 Md. 639.

(d) A reasonable antenuptial agreement will not bar dower, though not amounting strictly to a jointure. Stilley v. Folger, 14 Ohio, 610. It must, however, have been fully executed. Murphy v. Murphy, 12 Ohio State, 407; Johnson v. Johnson, 30 Mo. 72.

dower; and if she be legally evicted from any part of her jointure, she may recover an equal amount as dower; but on the other hand, should a conveyance intended to be in lieu of dower, from any legal defect, fail to be a bar, and the widow in consequence demand her dower, such conveyance to her shall be void. 2. By Devise in lieu of Dower. (a) By our statute of wills, if a husband by his will make any provision for his widow, it will be taken in lieu of dower, unless it plainly appears to have been his intention that such provision should be in addition to dower; and she has six months within which to make known her election to the court, whether she will take the legacy or dower; which election must be entered on the minutes of the court; and the election of either bars the other. (b) If she makes no election, the law considers her as relinquishing her legacy, and gives her dower; and in one case, where the legacy was not specified to be in lieu of dower, but the widow made an agreement with the heir, reciting that it was in lieu of dower, and stipulating to accept certain things in satisfaction of the devise, the court held this agreement to be a bar. 3. By joining her husband in a deed. (c) Our statute provides that a woman may bar

(a) Devise suitable for dower, but not saying in lieu of dower. Wife does not elect within the time, but agrees with heirs, reciting that it was in lieu of dower, and accepts other things as such. She is thereby barred. Shotwell v. Sedam, 3 Ohio, 5.

(b) The time within which she is to make her election is now one year. When the election has once been made and entered upon the minutes of the court, the probate judge has no power to cancel it, on her application, on the ground of an alleged mistake. This can only be effected by a petition filed in a court having general equity powers. Davis v. Davis, 11 Ohio State, 386. Where the will gave the widow a lifeinterest in the whole property so long as she remained a widow, and she elected to take under it, she forfeited the whole by marrying again. Lingart v. Ripley, 19 Ohio State, 24. When the provision in the will includes the dower, as where the widow is given a life estate in all the realty, it is equivalent to a provision in addition to dower, and she will still have her dower right, free from the claims of creditors. In such a case, if she actually accepts the provisions of the will, but dies without having made her formal election, or having been cited to do so, she will be held to have taken under the will. Baxter v. Bowyer, 19 Ohio State, 490.

(c) See Brown v. Faran, 3 Ohio, 148; Connell v. Connell, 6 Ohio, 353; Hubbell v. Broadwell, 8 Ohio, 120. Hughes v. Lane, 11 Ill. 123; Garrett v. Moss, 22 id. 363. The result of these cases is, that it is sufficient if the certificate state the substance without the exact language of the statute. With respect to joining in a mortgage, the wife thereby only bars herself with respect to the mortgagee and his representatives or assigns. If the debt be paid without a sale of the land, dower is restored; if by sale of part only, dower is restored in the residue; but if the land be sold to pay the debt, it makes no difference whether it be by the administrator of the husband, or under a decree; for dower is equally barred. St. Clair v. Morris, 9 Ohio, 15. Curative statutes enacted for the purpose of healing defective acknowledgments, are unconstitutional and void as respects married women. Good v. Zercher, 12 Ohio, 364. The same doctrine was held in Meddock v. Williams, 12 Ohio, 377, and in Silliman v. Cummins, 13 Ohio, 116. But in Chestnut v. Shane, 16 Ohio, 599, the three preceding decisions were overruled, the curative statute of 1835 held valid, and the omission to certify that the contents were explained, held not to be fatal. Card v. Patterson, 5 Ohio State, 319. Browder v. Browder, 14 Ohio State, 589. The acknowledgment by the husband and wife may be at different times and before different magistrates. Williams v. Robson, 6 Ohio State, 510; Newell v. Anderson, 7 id. 12. Where wife joins in the granting clause, this is sufficient without any where stating that she relinquishes dower. Smith v. Handy, 16 Ohio, 191. Edwards v. Sullivan, 20 Iowa, 502. But where she is only mentioned in the testatum clause, as signing and sealing, without granting words, she is not barred. Lufkin v. Curtis, 13 Mass. Rep. 223; Stevens

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