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quire ; and if the tenant in possession have but a term of years in such lands, he may join with the persons having the next estate of freehold in the same, in assigning and setting off dower as aforesaid.
Sec. 4. Until such dower be assigned and until she elect to receive her jointure in lieu of dower, according to the thirteenth section of this act, it shall be lawful for any widow to remain and continue in the mansion-house, and the messuage thereto belonging, without being chargeable to pay the heir any rent for the same; provided she bring her writ of dower within twelve months after the probate of the will or the granting of letters of administration on her husband's estate.
Sec. 5. If any person empowered according to the third section of this act, shall neglect for one month after demand made to assign and set off to any widow her dower in all the lands, tenements and hereditaments in his possession, of which she is dowable, or shall assign and set off less in value than the widow is entitled to, or in a manner not consistent with the provisions and true intent of this act, in either of these cases, such widow may sue for and recover her dower, by writ of dower, to be brought against the tenant in possession or the tenant of the next immediate estate of freehold.
Sec. 6. Whenever judgment for dower shall be rendered by any court of common pleas in favor of a plaintiff in an action of dower, the said judgment shall set forth the manner in which the plaintiff shall be endowed ; and either party aggrieved by such judgment may appeal therefrom to the next term of the supreme court in the same county. If no such appeal be prayed in open court within two days after such judgment, the same shall be final and shall annul the dower before that time set off and assigned the plaintiff in the case, if any had been set off and assigned.
SEC. 7. When final judgment for dower shall be rendered in any action of dower in favor of the plaintiff, the court rendering the same shall appoint three disinterested men, who shall be under oath (to be administered by said court or by any justice of the peace or public notary) equally and impartially to set forth by metes and bounds, or to ascertain in the special manner pointed out in such judgment, the dower of the plaintiff, and also the damages sustained by the plaintiff by detention thereof after demand therefor; said men shall appoint time and place to meet the parties in the said action and give them notice thereof; and at such time and place, notwithstanding the absence of either or both of said parties, and unless good cause is shown, proceed to discharge their
duties and make report of the same, with a plat of the premises and of the dower set off, if set off by metes and bounds, as soon as may be to the court appointing them, under their hands; and no sufficient cause to the contrary being shown, said court shall confirm said report, and enter up judgment according to the same, and issue a writ of execution for said damages, and to put the plaintiff in possession of her dower or perception of rents and profits, as the case may require : provided that execution shall not be issued until after the plaintiff produces to the court, or clerk if the court be adjourned, a certificate that the judgment of said court, confirming said report, has been duly recorded in the office of the town clerk of the town in which the premises lie; the expense of which shall make part of the cost in the action of dower.
SEC. 8. No action of dower shall abate by the death of the defendant named therein, where the defendant is tenant of the freehold, if the property passes by devise or descent from him; but such death being suggested, the heir or devisee shall be summoned to appear at the same or at the next term in the discretion of the court where the action is pending, and take upon him the defence of the suit; and the suit shall proceed against him in the same manner as if he had been the original defendant.
Sec. 9. Any court of probate in this state which shall have granted letters of administration or letters testamentary on the estate of any deceased person, shall have power, upon the joint application of the widow of the deceased, and all the heirs at law or devisees having the next immediate estate of freehold, and all persons interested in all or any of the lands, tenements or hereditaments, lying within this state, which belonged to the deceased during his intermarriage, whereof such widow is dowable, to cause her dower therein to be assigned and set off to her.
Sec. 10. When such an application shall be made to such court of probate, said court upon hearing the parties thereto shall, in the first instance, decree in which manner the dower ought to be assigned in the premises described in such application; whether by metes and bounds or in some special and certain manner as set forth in the second section of this act; and any person aggrieved by such decree may appeal therefrom to the next term of the supreme court to be holden in the same county. But if no appeal be made within the time prescribed by law, or if the parties in writing within that time waive their right to appeal, then said decree shall be final.
Sec. 11. Upon the rendering of a final decree on such a petition prescribing the manner in which the dower shall be assigned, the court rendering the same shall appoint three disinterested men, who shall have and exercise the same duties and powers and in the same manner and under the same restrictions as though they were appointed to set off dower in an action of dower according to the provisions of this act; and their report being made to said court, like proceedings shall be had thereon and with like effect as in an action of dower: provided, however, that no damages shall be allowed on such petition for detention of dower; and provided further, that no appeal shall be had from any decree of any court of probate affirming any report made to them by the men appointed by them to set off dower as aforesaid.
Sec. 12. No woman who shall be endowed of any lands, tenements or hereditaments as aforesaid, shall commit or suffer any strip or waste thereon, upon penalty of forfeiting the whole of that part of the estate upon which such strip or waste shall be made, and the damages assessed for waste, to him who has the immediate estate of freehold or inheritance, remainder or reversion, by an action of waste to be brought therefor; and all tenants in dower shall maintain the houses and tenements, with the fences and appurtenances whereof they may be endowed, in good repair during the term, and shall leave them so at the expiration thereof.
Sec. 13. If any estate real or personal be conveyed by deed, or the same be devised or bequeathed for the jointure of the wife in lieu of her dower, to take effect in her own possession immediately on the death of her husband and to continue during her life, or in fee, determinable by such acts only as would forfeit her dower at the common law, such conveyance shall bar her dower of the residue of the lands, tenements and hereditaments, which her said husband at any time possessed; but if the said conveyance was before marriage and during the infancy of the woman, or after marriage, in either case the widow may, at her election, waive such jointure and demand her dower; provided the same be done in writing within twelve months after the probate of the will, if there be one, and if not, then within twelve months after the granting of letters of administration on her deceased husband's estate.
Sec. 14. When any conveyance or devise intended to be in lieu of dower shall, through any defect, fail to be a legal bar thereto, and the widow availing herself of such defect
shall demand her dower, the estate so conveyed with intention to bar her dower shall thereupon cease and determine.
Sec. 15. If any widow be lawfully expelled or evicted from her jointure, or any part thereof, without any fraud or covin, by lawful entry or action, she shall be endowed of so much of the residue of her husband's lands, tenements and hereditaments, whereof she was dowable, as the same lands, tenements or hereditaments, wherefrom she was so evicted and expelled shall amount and extend to.
Sec. 16. Widows may bequeath the crops as well of their dower, as of their other lands and tenements; and if any widow shall erect any fence on or around her dower land, her executors or administrators may enter thereon and remove the same, doing as little damage as may be to the freehold, at any time within six months after the death of such widow.
An Act concerning Partition and Estates holden in Common
and in Joint Tenancy.
SECTION 1. Joint tenants and tenants in common 7. In case of appeal, supreme court after
in fee in possession, compellable to judgment for partition to appoint com
make partition by writ of partition. missioners, and proceed as court of 2. Joint tenants and tenants in common common pleas.
for life or years, compellable to make 8. Costs in partition to be in the discrepartition during the continuance of tion of the court.
their estates, by writ of partition. 9. Omission of a party not to abate ac3. Partition between tenants of the fee tion, but omitted person to be sum
and tenants for life or years may be moned and his name inserted in the compelled by writ of partition to con process. tinue during the shortest estate-if 10. Each plaintiff may have his share set tenant in reversion join with tenant off by itself. for life or years in compelling parti- 11. Each defendant may answer separatetion, partition to be of the fee—such ly and have his share set off by itself. suit not to abate by the death of the 12. Suit in partition not to abate by the tenant for life or years.
death of either plaintiff or defendant ; 4. If defendant in partition reside out of but heirs at law to be cited in.
the state, copy of writ to be left with 13. If plaintiff allege that any of his cotenant-if such defendant live within tenants are unknown to him, court to the United States and do not appear order notice to such unknown parties the first term, cause to be continued, by advertisement or otherwise. and agent to be appointed by court to 14. In cases where all parties are not attend to his interests.
known, the shares of the unknown 5. If defendant be infant, &c., without parties to be left undivided, and the
guardian, court to appoint a guardian shares of the known parties only set ad litem.
off. 6. Either party may appeal from judg. 15. In actions for possession one or more
ment of court of common pleas for tenants in common, &c., may sue for partition in two days after judgment, his separate right-and so for mesne but not after-one or more commis profits. sioners to be appointed and sworn to 16. All conveyances to more than one make partition agreeably to the judg. shall not convey a joint tenancy un. ment, after notice to the parties—their less it be expressly stated in the conreport when accepted to be final.
veyance to be so intended.
It is enacted by the General Assembly, as follows :
SECTION 1. All joint tenants, coparceners and tenants in common, who now are or hereafter may be actually seized or possessed of any estate of inheritance in any lands, tenements or hereditaments, in their own right, or in the right of their wives, may be compelled to make partition between them of such lands, tenements and hereditaments, by writ of partition.
SEC. 2. All joint tenants, coparceners and tenants in common, who now are or hereafter may be actually seized or possessed of any estate for life or years, in any lands, tenements or hereditaments, in their own right, or in the right of their wives, may be compelled to make partition between them of such lands, tenements and hereditaments, to continue until the estate of some of the parties to the same shall determine, and no longer, by writ of partition.
Sec. 3. All joint tenants, coparceners and tenants in common, who now are or hereafter may be actually seized or possessed of any estate for life or years, in any lands, tenements or hereditaments, in their own right, or in the right of their wives, with others who have estates of inheritance in
possession in the same lands, tenements and hereditaments,may compel or be compelled to make partition of such lands, tenements and hereditaments, to continue until the estate of some of the parties shall determine, and no longer, by writ of partition; but if the tenant in reversion or remainder in fee join with the said tenant for life or years in compelling partition of any such lands, tenements or hereditaments, against the other co-tenants, the partition shall be of the whole estate and binding on the heirs and assigns of all parties; and no such action shall abate by the death of the tenant for life or years, or the expiration of the term of years; but the surviving plaintiff may prosecute the said action to final judgment and execution.
Sec. 4. When any person named defendant in such writ of partition shall not be an inhabitant of this state, and by reason of his absence cannot be personally summoned to answer thereunto, legal service of said writ shall be made by leaving a copy thereof with the tenant in possession (if any there be) of the estate, whereof partition is demanded ; and if the said person named defendant as aforesaid shall live within the United States and shall not appear at the court to which said writ shall be returnable, to defend the same, the action shall be continued one term; and in such case, if the defendant does not then appear, it shall be the duty of the court to