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4 9 H. 3, CAP. 7, DOWER. against the Defendant returnable in two or three days, &c., and may, and ought (if no just cause may be shewed against it) speedily to put her in possession, and the reason why such speed is made is for that her quaran- tine is but for forty days." And Fitzherbert says that the Sheriff is "to award process against the party to come and answer the same and shall not stay until the County Court be holden; for this writ is a commission to him, and upon the same he shall immediately make process against the party for to answer &c. within two or three days according to his discretion, and thereupon to proceed as Justices shall do upon a commission of oyer and terminer." F. N. B. supra. In pleading it seems from Kettilesby v. Ket- tilesby, Dy. 76 b. that the widow must show the time of her husband's death in certain. No allowance of additional days is made to her for the time during which she may have been deforced. But now under the Stat. of Merton, 20 Hen. III. c. 1, she may recover damages for such deforcement of her quarantine. At the expiration of the forty days, if her dower shall not have been assigned the heir may expel her from the premises and force her to resort to her legal or equitable remedies for the recovery of her dower. It was A indeed said by Mr. Justice Gould in Goodtitle* v. Newman, 3 Wils. 516, "If dower be not assigned to her within forty days, may she not continue until it be assigned to her? I think the Court would not turn her out until dower was assigned to her." And the counsel for the Defendant admitted that the heir could not turn her out until he had assigned her dower. And see Doe v. Groves, 10 Q. B. 486. But this dictum seems opposed to author- ity of greater weight. In Co. Litt. 34 b. it is laid down that, there being no penalty provided in the statute, the heir may drive the widow to sue for her dower. In the case above cited from Jenk. Cent. it was decided by all the Judges that the widow may live in the chief house of her husband forty days and no longer. And in the case of Jackson v. O'Donaghy, 7 Johns. 247, the precise point was adjudged against the widow upon construction of the Statute of New York, which was taken from magnet charta with this verbal difference, that in the former the expression is "the widow shall tarry forty days, &c., or until her dower be assigned," &c., while in the latter the exprpession is, "she shall tarry," &c. within which time, &c. Of what dowable—Seisin.—This chapter settles the proportion of her hus- band's lands to which the widow is entitled for dower. She is now "enti- tled" say the Court of Appeals in Chew v. Chew, 1 Md. 163 "to be endowed of all lands and tenements of which her husband was seised in fee simple, at any time during coverture, or in fee tail general, or as heir in special tml, of which any issue which she might have had might by possibility have been heir, and she shall be endowed as well of lands where the husband had a seisin in law as an actual seisin.'' In the same case the Court cites and adopts the language of Park on Dower, 41. "Although a sole seisin is nec- essary in order to confer a title to dower, it is not requisite that it should be a seisin of the entirety. A sole seisin of the freehold and inheritance in any particular share or purparty of lands, either as tenant in common, in co-parcenary or otherwise, will be subject to the attachment of dower to the |
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Alexander's British statutes in force in Maryland. 2d ed., 1912
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