Chapter 43. DOWER AND VALUATION OF LIFE ESTATES.
Article 1. Dower.
§1. Who Entitled to Dower.—A surviving spouse shall be endowed of one-third of all the real estate whereof the deceased spouse, or any other to his or her use, or in trust for him or her, was, at any time during the coverture, seised of or entitled to an estate of inheritance, either in possession, reversion, remainder, or otherwise, unless the right of such surviving spouse to such dower shall have been lawfully barred or relinquished.(Code 1849, c. 110, §1, c. 116, §17; Code 1860, c. 110, §1, c. 116, §17; Code 1868, c. 65, §1, c. 71, §17; 1872-3, c. 207, §1; 1882, c. 86, §1; Code 1923, c. 65, §1, c. 71, §17.)
Revisers’ Note.—This section gives the husband an estate of dower in the wife’s land. Curtesy is abolished by §18 of this article. Since by Acts 1921, c. 73, §15, and Acts 1925, c. 77, §15, the husband’s curtesy was reduced to a one-third interest for his life, there seems to be no reason why that interest should not attach to any land of which the wife was seised during the coverture. The provisions of §3, c. 66, Code 1923, requiring the husband’s joinder in a deed of his wife’s land, are abandoned in this revision (See §2, art. 3, c. 48), and the husband and wife are put upon an exact equality with reference to the ownership and conveyance, of land and with respect to the interest of the survivor in the land of the other. Many troublesome questions are thereby eliminated from the statutes. See revisers’ notes to §§8 and 9, art. 1, c. 37; also §2, art. 3, c. 48.
§2. Same, Where Only Right of Entry or Action.—When a deceased spouse, or any other to his or her use, shall have been entitled to a right of entry or action in any land, and the surviving spouse would be entitled to dower out of the same if the deceased spouse or such other had recovered possession thereof, he or she shall be entitled to such dower, although there shall have been no recovery of possession.(Code, 1849, c. 110, §2; Code 1860, c. 110, §2; Code 1868, c. 65, §2; 1882, c. 86, §2; Code 1923, c. 65, §2.)
Revisers’ Note.—This section is revised to include the new dower estate of the husband. See revisers’ note to §1 of this article.
§3. Same, Where Land of Spouse Sold in Lifetime of Such Spouse to Satisfy Encumbrance.—Where land is bona fide sold in the lifetime of a husband or wife to satisfy a lien or encumbrance thereon, created by deed in which the other spouse has united, or for the purchase money thereof, whether such other spouse has united therein or not, or created before the marriage, or otherwise paramount to the claim of dower of such other spouse, the latter shall have no right to be endowed in such land, and the same shall be free and clear of all claim of dower, and the purchaser shall be under no obligation to see to the application of the purchase money or any part thereof. But if a surplus of the proceeds of sale remain after satisfying such lien or encumbrance, or purchase money, and the expense of the sale, the spouse of the person whose land is so sold shall be endowed out of such surplus itself, and shall be paid out of such surplus such gross sum, computed according to the method provided in article two of this chapter, as shall represent the present value a of the inchoate dower right of such spouse in the whole of such land. A court of equity, whether or not a case involving the matter be then pending, upon the application of any party interested, or on its own motion if the sale is made at the direction of a court, shall have and take jurisdiction to secure to such spouse his or her right out of such surplus. Such right of dower out of such surplus shall not be a charge on the land; nor shall such right to be endowed out of the surplus give such spouse any right to have any sale enjoined or to be conducted under supervision of the court unless other grounds of jurisdiction exist.(Code 1849, c. 110, §3; Code 1860, c. 110, §3; Code 1868, c. 65, §3; 1882, c. 86, §3; Code 1923, c. 65, §3.)
Revisers’ Note.—Section 3, c. 65, Code 1923, is revised to include the new dower estate of a husband. See note to §1 of this article. Other changes are also made. Said §3 has been the subject of much controversy, and is differently construed by the courts of Virginia and West Virginia. See Robinson v. Shacklett, 29 Gratt. 99; Holden v. Boggess, 20 W. Va. 62; and Carver v. Ward, 81 W. Va. 644, 95 S. E. 828, especially the dissenting opinion of Judge Ritz. Several changes are made to meet some of the difficulties. The words “and the expenses of the sale,” although possibly unnecessary, are added to save any doubt as to their priority over the dower interest. Instead of the words “to dower in said surplus,” the words “endowed out of such surplus itself” are used to make it certain that it is to the surplus the one entitled to dower must look and not to the land, it being pointed out in the case of Bassell v. Caywood, 54 W. Va. 241, 246, that “the retention of the word dower makes it an interest in and chargeable against the land except as qualified by the first clause, and this is, that it cannot be assigned in kind, but may be to the extent of the surplus as a measure of value charged against the same.” See also Holden v. Boggess, 20 W. Va. 64, 81. More certainly to accomplish the same purpose the words “right of dower out of such surplus” are used, and there is added, also, the provision that the right of dower out of such surplus shall not be a charge on the land. Thus the rule laid down in the cases of Holden v. Boggess, 20 W. Va. 62; George v. Hess, 48 W. Va. 534; and Bassell v. Caywood, 54 W. Va. 241, is abrogated. Instead of using “the surplus as a measure of value” to determine the amount of the dower, as seems to have been the interpretation put upon this section in its previous form by all the Virginia and West Virginia cases, especially Holden v. Boggess, supra, it is also provided that the dower shall be measured by the whole value of the land, and not by the surplus only, although paid out of the surplus, which is the rule if the sale takes place after the death of the spouse owning the land. See Bank v. Dudley, 76 W. Va. 332, 86 S. E. 307, and the next section of this article and the note thereto. No reason is apparent why, if a husband dies indebted and his lands must be sold to pay his debts, a larger value should be taken for computing the wife’s dower, just because it is consummate, than if the lands be sold in the husband’s lifetime. It is pointed out in Bank v. Dudley, supra, that the law recognizes a distinction between a purchase money lien and a lien for a debt upon a consideration foreign to the purchase of the land on which it is secured, which distinction will be recognized in valuing the dower after the husband’s death; yet formerly, if the land was sold in the lifetime of the husband, the statute did not allow such distinction to be made. The new matter in this section and the addition of the next section make the rule the same in all cases, whether the sale is in the lifetime of the owner of the land or after his or her death, and whether the lien is a purchase money lien, or one created to secure money borrowed for other purposes. A new provision requires that the court take jurisdiction upon the application of any party interested, or on its own motion in certain cases, to secure, to the one entitled, dower out of the surplus, even though the same be only inchoate; thus to cover situations like those presented in George v. Hess, 48 W. Va. 534, (an application by the doweress), and Bassell v. Caywood, 54 W. Va, 241, (an application by the purchaser). This revision specifically allows an independent proceeding, though the dower be only inchoate, to accomplish the object aimed at, which the court seemed to believe not intended by the former statute, but only “a case pending after the wife’s contingent dower interest has become consummate.” See Holden v. Boggess, 20 W. Va. 62, 81. Provision is made for the satisfaction of the right of dower out of the surplus by the payment of a gross sum, computed according to an approved method. To make such payment takes such a small part of the fund that it is much to be preferred, either to the method of sequestration, which is severely criticised in Holden v. Boggess, 20 W. Va. 62, 85-88, or to the plan formerly prevailing of leaving the dower interest a charge on the land in the possession of the purchaser, which experience shows occasions many hardships. A provision is added that denies to any one entitled to be endowed out of the surplus any right to enjoin the sale or to have the same conducted under supervision of a court, unless other grounds of jurisdiction exist, so that sales will not be interfered with on flimsy pretexts.
§4. Same, Where Land of Spouse Sold After Death of Such Spouse to Satisfy Encumbrance.—When the land in which a surviving spouse is entitled to dower is subject to a lien or encumbrance, created by deed in which he or she united, or for the purchase money thereof, whether he or she united therein or not, or created before marriage, or otherwise paramount to the claim of the surviving spouse, such surviving spouse shall, as against every person except the holder of such lien or encumbrance and those claiming under such holder, be entitled to dower in the whole of such land, and as against such holder and those claiming under him, the surviving spouse shall have no right to be endowed in such land, and the same may be sold to satisfy such lien or encumbrance free and clear of such dower, and without obligation on the part of the purchaser to see to the application of the purchase money. If, in case of any such sale, there shall remain a surplus after satisfying such lien or encumbrance and the expenses of the sale, such surviving spouse shall be entitled to have paid to him or her out of such surplus such gross sum computed according to the method provided in article two of this chapter, as shall represent the present value of the dower right of the surviving spouse in the whole of such land.
Revisers’ Note.—This section is new. Except in one particular hereafter mentioned, it puts into statutory form the majority decision in Bank v. Dudley 76 W. Va. 332, 86 S. E. 307, where the exact question came up for decision for the first time in the Virginias. Thus, the only real change in the law,— except for making the same rule apply to the dower of the husband as well as the wife (for which, see note to §1 of this article)—is in reference to purchase money liens, and by this section lands subject to such liens are treated in the same way, when also subject to dower, as are lands subject to other liens. In Bank v. Dudley, supra, it is stated that as to land subject to a purchase money lien, dower is deemed never to have attached to anything except the excess of the value of the land above the unpaid purchase money debt. However, one uniform rule, whatever be the nature of the lien to which the land is subject, is deemed preferable. See revisers’ note to the preceding section.
§5. How Lands May be Sold Free of Inchoate Rights of Dower.—In any suit or proceeding for partition, or for the purpose of subjecting lands to the payment of debts or liens subordinate to dower, or for any other purpose, the real estate involved may, by order of the court, be sold free and clear of all inchoate dower rights therein, if the person or persons entitled to such rights be made a party or parties to the suit or proceeding, and in such case such rights in dower shall be forever barred; and the court by which such sale shall be confirmed shall direct the payment, out of the net proceeds of sale applicable to the share or shares in such lands as are subject to such inchoate dower rights, to such person or persons of such gross sum, computed according to the method provided in article two of this chapter, as shall represent the present value e of such inchoate dower rights.
Revisers’ Note.—This section is new. The procedure will, it is believed, greatly facilitate partition proceedings and other suits involving land where sales are necessary, and, by authorizing the sale of the land free of inchoate rights of dower therein, prove advantageous to all parties. Estates by the curtesy are not included in this section, for, previous to this revision, there could be no inchoate estates by the curtesy, an estate by the curtesy coming into being only on the death of a wife seised of an estate of inheritance. However, the section does cover the new estate of dower in the husband created by §1 of this article.
§6. Proceedings for Release of Dower in Real Estate Which Owner has Contracted to Sell.—If the owner of real estate contracts to sell the same, and the spouse of such owner refuses to release his or her dower interest therein, such owner, or the person contracting to purchase, may institute suit in chancery for the purpose of having the dower interest released and the contract consummated. The court on the hearing may, in its discretion, and if satisfied that the contract of sale was made in good faith and without design to force such spouse to part with his or her dower interest, approve the sale and price, and cause to be paid to such spouse such gross sum, computed according to the method provided in article two of this chapter, as shall represent the present value of his or her inchoate dower right. Upon such payment as aforesaid the court shall order a release of the dower interest, by such spouse, or if he or she refuses to execute the release, then by a special commissioner to be appointed by the court for the purpose, which release shall be effectual to pass the property to the purchaser free of such right of dower.
Revisers’ Note.—This section is new.
§7. Dower Barred by Jointure.—If any estate, real or personal, intended to be in lieu of dower, shall be conveyed or devised for the jointure of the husband or wife, such conveyance or devise shall bar his or her dower in the real estate or the residue thereof.(Code 1849, c. 110, §4; Code 1860, c. 110, §4; Code 1868, c. 65, §4; 1882, c. 86, §4; Code 1923, c. n 65, §4.)
Revisers’ Note.—This section is revised to include the new dower estate of a husband. See revisers’ note to §1 of this article.
§8. Waiver of Jointure and Demand of Dower.—But if such conveyance or devise was before the marriage, without the assent or during the infancy of the other spouse, or if it was after the marriage, in either case, the surviving spouse may, at his or her election, waive such jointure and demand dower. If the jointure be created by will of one spouse, the election of the other spouse shall be made within the time and in the manner provided by law for the renunciation of the provisions for such surviving spouse in the will of the other spouse; is and if the jointure be created by a conveyance of one spouse, the election of the other spouse in shall be made within eight months after the death of the one dying, by a writing acknowledged or proved as a deed is required to be acknowledged or proved, and recorded in the office of the clerk of the county court of the county where the instrument creating the jointure is recorded; and when the surviving spouse shall elect and receive his or her dower, the estate conveyed or devised to him or her shall cease and determine.(Code, 1849, c. 110, v §5; Code 1860, c. 110, §5; Code 1868, c. 65, §5; 1882, c. 86, §5; Code 1923, c. 65, §5.)
Revisers’ Note.—Section 5, c. 65, Code 1923, is revised to include the new dower estate of the husband. See revisers’ note to §1 of this article. New provisions specify how the dower must be demanded and the jointure waived.
§9. Dower on Deprivation of Jointure.—If a surviving spouse be lawfully deprived of his or her jointure, or any part thereof, he or she shall be endowed of so much of the real estate whereof, but for such jointure, he or she would have been dowable, as is equal in value to that of which he or she was deprived.(Code 1849, c. 110, §6; Code 1860, c. 110, §6; Code 1868, c. 65, §6; 1882, c. 86, §6; Code 1923, c. 65, §6.)
Revisers’ Note.—Section 6, c. 65, Code 1923, is revised to include the new dower estate of the husband. See revisers’ note to §1 of this article.
§10. Rights of Surviving Spouse Before Dower Assigned.—Until dower is assigned, the surviving spouse may hold, occupy, and enjoy the mansion house and curtilage without charge for rent, repairs, taxes, or insurance; and, in the meantime, he or she shall be entitled to demand of the heirs, devisees, or alienees, or any of them, one-third part of the issues and profits of the other real estate which descended or was devised or passed to them, of which he or she is dowable, after deducting the cost of necessary repairs, taxes, and insurance. If he or she be deprived of such mansion house and curtilage, he or she may, on complaint of unlawful entry or detainer, recover the possession thereof, with damages for the time he or she was so deprived.(Code 1849, c. 110, §8; Code 1860, c. 110, §8; Code 1868, c. 65, §8; 1882, c. 86, §8; Code 1923, c. 65, §8.)
Revisers’ Note.—This section is a revision of §8, c. 65 Code 1923. It is made to apply to the new dower estate of the husband. See revisers’ note to §1 of this article. The words “for rent, repairs, taxes, or insurance” after the words “without charge”; the words “or passed to them” after the word “devised”; and the words “after deducting the cost of necessary repairs, taxes and insurance” after the word “dowable,” are new. See Holt v. Holt, 96 W. Va. 337, 123 S. E. 53, which holds that a widow is not chargeable with rent, taxes and insurance while occupying or enjoying the mansion house, but liable for incidental repairs. The court suggests in that case that she is not liable for permanent repairs. This section relieves the one entitled to dower of liability for any repairs, and avoids the difficulty of distinguishing between incidental and permanent repairs. This works no hardship as the heir may protect himself by having dower assigned.
§11. Mansion House to Surviving Spouse With Minor Children.—Notwithstanding the provisions of the preceding section, upon the death of any person leaving him or her surviving a spouse and minor children of the deceased and the surviving spouse, such spouse and such minor children shall be permitted to occupy the mansion house and curtilage until the youngest surviving child shall reach the age of twenty-one years, and the assignment of dower shall not be made until such time, except with the consent of such surviving spouse, unless such mansion house and curtilage are assigned to the surviving spouse as dower, or as part thereof, or unless the surviving spouse shall elect to have dower assigned out of other real estate: Provided, however, That such right of the surviving spouse and such minor children so to occupy such mansion house and curtilage shall be subject to the rights of creditors of the deceased, if any, to resort to such mansion house and curtilage, for the payment of debts, after exhausting the personal property and all other real estate: Provided further, That while so occupying the mansion house and curtilage under the provisions of this section the surviving spouse shall be liable for repairs, taxes and insurance on the same: And provided, further, That the privilege so to occupy the mansion house and curtilage given by this section shall cease and determine whenever such mansion house and curtilage cease to be used as a home for the surviving spouse and the children of the deceased and such surviving spouse.
Revisers’ Note.—This section is new. It is intended to preserve a home for a family until all children are of age, as long as they need it and so use it, especially in cases where the only property is the small home that the decedent acquired and established for his or her family. Of course, it applies to the larger estates as well; but in such cases the one entitled to dower may elect to have dower assigned out of other real estate, or the heirs may assign dower to include the mansion house and curtilage, and thus prevent their interests from being affected. Creditors are protected by one of the provisos, in case there is not sufficient other property to pay debts, by allowing the creditors to proceed as if this section gave no privilege to the surviving spouse to remain in the mansion house. The surviving spouse who takes advantage of the privilege to remain in the mansion house is required to pay for repairs, taxes and insurance, which seems fair.
§12. Assignment of Dower.—Dower may be assigned as at common law; or upon the motion of the surviving spouse, or the heirs, devisees, or alienees, or any of them, the circuit court of the county in which the will of the deceased spouse is admitted to record, or administration of his or her estate is granted, may, upon reasonable notice to the other parties interested, or such of them as may be in the county, appoint commissioners, by whom dower may be assigned; and the assignment when confirmed by the court shall have the same effect as if made by the heir at common law. But nothing herein contained shall be construed to take away or affect the jurisdiction which courts of chancery now exercise over the subject of dower.(Code 1849, c. 110 §9; Code 1860, c. 110, §9; Code 1868, c. 65, §9 1882, c. 86, §9; Code 1923, c. 65, §9.)
Revisers’ Note.—Section 9, c. 65, Code 1923, is revised to include the new estate of dower given to the husband. See revisers’ note to §1 of this article The words “or alienees” are new.
§13. Remedy for Recovery of Dower.—surviving spouse having a right of dower in any real estate may recover such dower, and damages for its being withheld, by such remedy at law as would lie on behalf of a tenant for life having a right of entry, or by a bill in equity where the case is such that a bill would now lie for such dower.(Code 1849, c. §10; Code 1860, c. 110, §10; Code 1868, c. 65, §10; 1882, c. 86, §10; Code 1923, c. 65, §10.)
Revisers’ Note.—Section 10, c. 65, Code 1923, is revised so as to include the new estate of dower in the husband. See revisers’ note to §1 of this article.
§14. Amount of Recovery; Damages.—In every such case a recovery of dower in such real estate in kind shall be of a third of the estate as it is when the recovery is had. Against the heirs or devisees of the deceased spouse, or their assigns, the damages shall be for such time after the death of such spouse as they have withheld the dower, not exceeding five years before the suit is commenced. Against one claiming under an alienation of the deceased spouse, or under a sale made by the judgment or decree of a court in his or her lifetime, the damages shall be from the commencement of the suit against such claimant. In either case they shall be to the time of the recovery. And if after suit brought, the surviving spouse or the tenant die before such recovery of damages, the same may be recovered by the personal representative of such surviving spouse, or against the personal representative of the tenant.(Code 1849, c. 110, §11; Code 1860, c. 110, §11; Code 1868, c. 65, §11; 1882, c. 86, §11; Code 1923, c. 65, §11.)
Revisers’ Note.—Section 11, c. 65, Code 1923, is revised to include the new dower estate of the husband. See revisers’ note to §1 of this article.
§15. Rights of Alienees of Deceased Spouse.—The two preceding sections are subject to this qualification, that any person claiming under an alienation made by the deceased spouse or under a sale made in pursuance of the judgment or decree of a court, in the lifetime of such spouse, may pay to the surviving spouse, during his or her life, lawful interest from the time the demand is made upon him by the surviving spouse, or his or her agent, for his or her dower in the lands, on one-third of the value thereof at the time of such alienation or sale, or he may pay a gross sum in lieu thereof, to be computed upon the principle provided in article two of this chapter; and in either case the payment so made shall be a full discharge and satisfaction of the claim of the surviving spouse for dower in the real estate so alienated or sold.(Code 1849, c. 110, §12; Code 1860, c. 110, §12; Code 1868, c. 65, §12; 1882, c. 86, §12; Code 1923, c. 65, §12.)
Revisers’ Note.—Section 12, c. 65, Code 1923, is revised to include the new dower estate of the husband. See revisers’ note to §1 of this article.
§16. Judgment Against Deceased Spouse or Guardian by Default or Collusion; Assignment of Dower by Guardian.—No surviving spouse shall be precluded from his or her dower by reason of the real estate whereof he or she claims dower having been recovered from the other spouse by a judgment rendered by default or collusion, if he or she would have been entitled to dower therein had there been no such judgment. Nor shall any heir who was under the age of twenty-one years at the time dower was assigned to the surviving spouse out of the lands of his ancestor by his guardian, or by judgment by default or collusion against such guardian, be precluded from recovering the estate of his ancestor from such surviving spouse unless he or she shows right to such dower.(Code 1849, c. 110, §13; Code 1860, c. 110, §13; Code 1868, c. 65, §13; 1882, c. 86, §13; Code 1923, c. 65, §13.)
Revisers’ Note.—Section 13, c. 65, Code 1923, is revised to apply to the new dower estate of the husband. See revisers’ note to §1 of this article.
§17. Crops on Dower Land.—Crops growing on the dower land of the surviving spouse at the time of his or her death may be bequeathed by him or her, and shall go to his or her a personal representative, in like manner as crops growing on any other land held for life.(Code 1849, c. 110, §14; Code 1860, c. 110, §14; Code 1868, c. 65, §14; 1882, c. 86, §14; Code 1923, c. 65, §14.)
Revisers’ Note.—Section 14, c. 65, Code 1923, is revised to include the dower land of a surviving husband and the crops thereon, to accord with the new dower estate created in the husband by §1 of this an article.
§18. Curtesy Abolished.—Tenancy by the in curtesy is abolished.(Code 1868, c. 65, §15; 1872-3, c. 207, §15; 1882, c. 86, §15; 1921, c. 73, §15; Code 1923, c. 65, §15; 1925, c. 77, §15.)
Revisers’ Note.—See §1 of this article and the revisers’ note thereto for the husband’s estate of dower created by this Code to take the place of tenancy by the curtesy. This section, of course, has no application to tenancies by the curtesy that have vested before this Code takes effect. The abolishment of tenancy by the curtesy makes unnecessary the retention of the first sentence of §16, c. 65, Code A 1923, and it is omitted from this revision.
§19. When Dower Barred by Misconduct.—If a husband or wife of his or her own free will leave his or her spouse and live in adultery, and be not afterwards reconciled to, and live with, such spouse, or if a husband or wife shall voluntarily leave or abandon his or her spouse without such cause as would entitle such husband or wife to a divorce from the bond of matrimony or from bed and board, and without such cause and of his or her own free will be living separate and apart from such spouse at the time of the latter’s death, such husband or wife shall be barred of dower in the estate of such spouse.(Gode 1849, c. 10, §7; Code 1860, c. 110, §7; Code 1868, c. 5, §§7, 16; 1872-3, c. 207, §16; 1882, c. 86, §7, 16; Code 1923, c. 65, §§7, 16.)
Revisers’ Note.—This section is a revision of all §7 and the second sentence of §16, c. 65, Code 923, which are combined in order to place husband and wife on an equal basis. The first sentence of said §16 is omitted. See revisors’ note to §18 of this article.
Article 2. Valuation of Life Estates.
§1. Gross Sum in Payment of Life Estates.—When a party as a tenant for life, or in dower, or by the curtesy, or otherwise, is entitled to the annual interest on a sum of money, or is entitled to the use of any estate, or any part thereof, or of the proceeds arising therefrom by sale or otherwise, and is willing to accept a gross sum in lieu thereof, or the party liable for such interest, or affected by such claim, has the right to pay a gross sum in lieu thereof, or if the court in any proceeding decrees a gross sum to be paid in lieu thereof, or it shall be desirable or any purpose to ascertain the value thereof, the sum to be paid, or the present value thereof, shall be estimated according to the then value of an annuity of five per cent on the principal sum during the probable life of such person, according to the following table showing the present value, on the basis of interest at five per cent, of an annuity of one dollar, payable at the end of each year that a person of a given age shall live:
| Age | Present Value of $1 per Annum |
|---|---|
| 0 | $12.818 |
| 1 | 14.922 |
| 2 | 15.731 |
| 3 | 16.125 |
| 4 | 16.346 |
| 5 | 16.472 |
| 6 | 16.535 |
| 7 | 16.561 |
| 8 | 16.560 |
| 9 | 16.540 |
| 10 | 16.505 |
| 11 | 16.461 |
| 12 | 16.415 |
| 13 | 16.366 |
| 14 | 16.316 |
| 15 | 16.263 |
| 16 | 16.207 |
| 17 | 16.149 |
| 18 | 16.088 |
| 19 | 16.024 |
| 20 | 15.957 |
| 21 | 15.886 |
| 22 | 15.813 |
| 23 | 15.736 |
| 24 | 15.655 |
| 25 | 15.570 |
| 26 | 15.482 |
| 27 | 15.389 |
| 28 | 15.292 |
| 29 | 15.191 |
| 30 | 15.084 |
| 31 | 14.973 |
| 32 | 14.857 |
| 33 | 14.735 |
| 34 | 14.608 |
| 35 | 14.475 |
| 36 | 14.336 |
| 37 | 14.191 |
| 38 | 14.039 |
| 39 | 13.881 |
| 40 | 13.716 |
| 41 | 13.544 |
| 42 | 13.365 |
| 43 | 13.179 |
| 44 | 12.985 |
| 45 | 12.783 |
| 46 | 12.574 |
| 47 | 12.357 |
| 48 | 12.133 |
| 49 | 11.901 |
| 50 | 11.662 |
| 51 | 11.416 |
| 52 | 11.164 |
| 53 | 10.905 |
| 54 | 10.640 |
| 55 | 10.370 |
| 56 | 10.095 |
| 57 | 9.815 |
| 58 | 9.530 |
| 59 | 9.241 |
| 60 | 8.949 |
| 61 | 8.654 |
| 62 | 8.357 |
| 63 | 8.059 |
| 64 | 7.759 |
| 65 | 7.459 |
| 66 | 7.159 |
| 67 | 6.861 |
| 68 | 6.564 |
| 69 | 6.270 |
| 70 | 5.980 |
| 71 | 5.694 |
| 72 | 5.413 |
| 73 | 5.136 |
| 74 | 4.863 |
| 75 | 4.593 |
| 76 | 4.325 |
| 77 | 4.059 |
| 78 | 3.794 |
| 79 | 3.531 |
| 80 | 3.270 |
| 81 | 3.013 |
| 82 | 2.761 |
| 83 | 2.511 |
| 84 | 2.261 |
| 85 | 2.010 |
| 86 | 1.761 |
| 87 | 1.518 |
| 88 | 1.286 |
| 89 | 1.067 |
| 90 | 0.855 |
| 91 | 0.645 |
| 92 | 0.449 |
| 93 | 0.288 |
| 94 | 0.136 |
(Code 1868, c. 65, §17; 1882, c. 86, §17; Code, 1923, c. 65, §17.)
Revisers’ Note.—This section is a material revision of the former statute. The first sentence of the section in its original form applied only to real estate, but the word “real” is omitted. In order to authorize the use of the statute in ascertaining the values of life interests—for purposes other than those specifically stated, e. g., for inheritance tax purposes,—the words “or it shall be desirable for any purpose to ascertain the value thereof,” are added. Although estates by the curtesy are abolished by this revision, the words “by the curtesy” are retained in this section, because vested estates by the curtesy are not affected by this revision, and it may be necessary to compute the value thereof. The same rate of interest is prescribed whether the life estate is in the whole, or in an undivided part, of a particular fund or property. No difference in value, justifying the application of a different rate of interest in determining the amount of the annuity, exists in fact. The former statute in that regard was palpably unfair. Instead of a rate of four per cent in one instance and six per cent in another, a uniform rate of five per cent is adopted, that rate fairly representing the actual annual return on the amount of the fund or the value of the property. The Northampton Table of Mortality, formerly used in computing the present value of an annuity, is discarded. It is the oldest of all modern tables, having been published in England in 1771, and is now generally discarded. As found in the Code since 1868, it contains errors in the computations for the ages 73 to 80, inclusive, such being on a 7 per cent interest basis, and evidently were copied from a wrong table or from the wrong column. This very old table is largely based on matters supposed to be facts, but which experience has demonstrated to be erroneous. The American Experience Table of Mortality is substituted for the one discarded. This table was first published in 1868, and is based upon a five per cent interest rate. It is gradually supplanting all other tables. For purposes of comparison there is given below the present value at age forty of a life estate in property of the value of $1000., at five per cent, according to the Northampton, the Carlisle (another English table published in 1815, but still used in some states in this country) and the American Experience Table of Mortality. Northampton Table…………………$591.85 Carlisle Table ..................................... 669.50 American Experience Table.............. 685.80 The American Experience Table, in the case illustrated, with interest at five per cent, gives a higher present value than the table formerly used. This, mainly for the reason, that the life expectancy at age forty by the American Experience Table is 28.18 years, while by the Carlisle Table and the Northhampton Table it is 27.61 and 23.08 years, respectively. For two reasons at least the table giving the higher value is adopted: (a) It is generally recognized by insurance companies that a life expectancy has increased during the last two decades, and therefore the more recent table should be used; (b) The purchasing power of money has decreased and life estates are most often intended and provided for the care and support of the life tenant, and should be favored.
§2. Rule of Calculation.—Calculate the interest at five per cent upon the sum to the income of which, or upon the value of the property to the use of which, the person is entitled. Multiply this interest by the present value of an annuity of one dollar as set opposite the person’s age in the table, and the product is the gross value of the life estate of such person therein.(Code 1868, c. 65, §18; 1882, c. 86, §18; Code 1923, c. 65, §18.)
Revisers’ Note.—This section corrects §18, c. 65, Code 1923, to correspond with the new table, by using the only rate of interest applicable to the table, and by substituting for the words “number of years’ purchase” the correct expression, “present value of an annuity of one dollar.”
§3. Examples.—Suppose a person whose age is fifty is tenant for life in the whole of an estate worth nine thousand dollars. The annual interest on that sum at five per cent is four hundred fifty dollars. The present value of an annuity of one dollar at the age of fifty, as appears by the table, is eleven dollars, sixty–six cents and two mills, which multiplied by four hundred fifty, the amount of the annual interest, gives five thousand two hundred forty–seven dollars and ninety cents as the gross value of such life estate in the premises, or the proceeds thereof. Then suppose a tenant in dower or by the curtesy, whose age is fifty, is entitled to dower or an estate by the curtesy in an estate worth nine thousand dollars. The annual interest at five per cent on three thousand dollars, the third part thereof, is one hundred fifty dollars, which multiplied as before, gives one thousand seven hundred forty–nine dollars and thirty cents as the gross value of such estate of dower or by the curtesy.(Code 1868, c. 65, §19; 1882, c. 86, §§19, 20; Code 1923, c. 65, §§19, 20.)
Revisers’ Note.—This section combines §§19 and 20, c. 65, Code 1923, and contains changes to comply with the new table. Estates by the curtesy are retained in the section, because there are some vested estates by the curtesy that it may be necessary to compute the value of, and that are not affected by this revision, which abolishes such estates. Such estates as are in the whole property of which the wife died seized will have their value computed in the same way as the estate of a tenant for life in the whole of an estate, and such estates by the curtesy as are in one-third of the property of which a wife died seized, which is the case since the Act of 1921, c. 73, §15, will have their values computed according to the method set out in the last two sentences of the section.
§4. Method of Computing Value of Inchoate Right of Dower.—The present value of an inchoate right of dower shall be determined by finding the present value of an annuity, for the life of the spouse entitled to dower, equal to the interest at five per cent on one-third of the value of the property or principal sum in which he or she is entitled to dower, and then substracting from such value the present value of an annuity of the same amount for the joint lives of the husband and wife. Such determination shall be made by the following method:
(a) From Table I (Force of Mortality) hereto appended add the decimals given for the respective ages of the husband and wife, and divide the sum by two;
(b) Ascertain from Table I the two ages between which the quotient obtained in (a) falls;
(c) Subtract the number given for the younger of the two ages found as directed in (b) from the quotient obtained as directed in (a);
(d) Subtract the number for the younger of the two ages found as directed in (b) from that given for the older age;
(e) Divide the result in (c) by the result in (d), which gives the fractional part of the year to be added to the younger age found as directed in (b), and when so added the resulting number is the equivalent “equal ages” of a husband and wife of different ages:
(f) From Table II (Present Value of an Annuity of One Dollar for the Joint Existence of Two Lives of Equal Ages, According to the American Experience Table of Mortality, with Interest at Five Per Cent Per Annum—Makehamized), hereto appended, find the present value of an annuity of one dollar payable during the joint existence of two lives aged the same as the younger age found as directed in (b);
(g) Subtract from the value found as directed in (f) the value for the next higher “equal ages” as given in said Table II;
(h) Multiply the remainder obtained as directed in (g) by the fractional part of the “equal ages” found as directed in (e);
(i) Subtract the product obtained as directed in (h) from the value obtained from said Table II as directed in (f);
(j) Subtract the remainder obtained as directed in (i) from the value of an annuity of one dollar on the life of the spouse entitled to the inchoate right of dower according to the figures given for his or her age by the Table in section one of this article;
(k) Multiply the remainder obtained as directed in (j) by five per cent of one-third of the value of the property or principal sum in which such spouse has an inchoate right of dower, and the result thus obtained is the present value of the inchoate dower right.
| Age | |
|---|---|
| 10 | .00768 |
| 11 | .00769 |
| 12 | .00770 |
| 13 | .00772 |
| 14 | .00773 |
| 15 | .00775 |
| 16 | .00776 |
| 17 | .00778 |
| 18 | .00781 |
| 19 | .00783 |
| 20 | .00786 |
| 21 | .00788 |
| 22 | .00792 |
| 23 | .00795 |
| 24 | .00799 |
| 25 | .00804 |
| 26 | .00809 |
| 27 | .00814 |
| 28 | .00821 |
| 29 | .00827 |
| 30 | .00835 |
| 31 | .00843 |
| 32 | .00853 |
| 33 | .00863 |
| 34 | .00875 |
| 35 | .00888 |
| 36 | .00902 |
| 37 | .00918 |
| 38 | .00935 |
| 39 | .00955 |
| 40 | .00977 |
| 41 | .01001 |
| 42 | .01028 |
| 43 | .01058 |
| 44 | .01091 |
| 45 | .01128 |
| 46 | .01169 |
| 47 | .01215 |
| 48 | .01265 |
| 49 | .01321 |
| 50 | .01384 |
| 51 | .01453 |
| 52 | .01531 |
| 53 | .01617 |
| 54 | .01712 |
| 55 | .01818 |
| 56 | .01936 |
| 57 | .02066 |
| 58 | .02212 |
| 59 | .02373 |
| 60 | .02553 |
| 61 | .02752 |
| 62 | .02974 |
| 63 | .03220 |
| 64 | .03494 |
| 65 | .03798 |
| 66 | .04136 |
| 67 | .04512 |
| 68 | .04929 |
| 69 | .05393 |
| 70 | .05908 |
| 71 | .06481 |
| 72 | .07117 |
| 73 | .07824 |
| 74 | .08610 |
| 75 | .09483 |
| 76 | .10453 |
| 77 | .11531 |
| 78 | .12729 |
| 79 | .14060 |
| 80 | .15540 |
| 81 | .17183 |
| 82 | .19010 |
| 83 | .21040 |
| 84 | .23295 |
| 85 | .25801 |
| 86 | .28586 |
| 87 | .31681 |
| 88 | .35120 |
| 89 | .38941 |
| 90 | .43187 |
| 91 | .47905 |
| 92 | .53149 |
| 93 | .58975 |
| 94 | .65449 |
| 95 | .72643 |
| 96 | .80637 |
| 97 | .89521 |
| 98 | .99392 |
| Equal Ages | |
|---|---|
| 10 | $14.457 |
| 11 | 14.415 |
| 12 | 14.370 |
| 13 | 14.323 |
| 14 | 14.273 |
| 15 | 14.221 |
| 16 | 14.165 |
| 17 | 14.107 |
| 18 | 14.045 |
| 19 | 13.979 |
| 20 | 13.910 |
| 21 | 13.838 |
| 22 | 13.761 |
| 23 | 13.680 |
| 24 | 13.595 |
| 25 | 13.505 |
| 26 | 13.411 |
| 27 | 13.312 |
| 28 | 13.208 |
| 29 | 13.099 |
| 30 | 12.985 |
| 31 | 12.865 |
| 32 | 12.739 |
| 33 | 12.607 |
| 34 | 12.470 |
| 35 | 12.326 |
| 36 | 12.176 |
| 37 | 12.019 |
| 38 | 11.856 |
| 39 | 11.687 |
| 40 | 11.511 |
| 41 | 11.328 |
| 42 | 11.137 |
| 43 | 10.941 |
| 44 | 10.737 |
| 45 | 10.527 |
| 46 | 10.310 |
| 47 | 10.087 |
| 48 | 9.857 |
| 49 | 9.621 |
| 50 | 9.379 |
| 51 | 9.131 |
| 52 | 8.878 |
| 53 | 8.620 |
| 54 | 8.357 |
| 55 | 8.090 |
| 56 | 7.819 |
| 57 | 7.545 |
| 58 | 7.268 |
| 59 | 6.989 |
| 60 | 6.709 |
| 61 | 6.428 |
| 62 | 6.147 |
| 63 | 5.866 |
| 64 | 5.587 |
| 65 | 5.310 |
| 66 | 5.036 |
| 67 | 4.765 |
| 68 | 4.498 |
| 69 | 4.236 |
| 70 | 3.979 |
| 71 | 3.729 |
| 72 | 3.485 |
| 73 | 3.249 |
| 74 | 3.020 |
| 75 | 2.799 |
| 76 | 2.587 |
| 77 | 2.383 |
| 78 | 2.189 |
| 79 | 2.004 |
| 80 | 1.828 |
| 81 | 1.661 |
| 82 | 1.504 |
| 83 | 1.357 |
| 84 | 1.218 |
| 85 | 1.089 |
| 86 | 0.968 |
| 87 | 0.857 |
| 88 | 0.754 |
| 89 | 0.659 |
| 90 | 0.573 |
| 91 | 0.495 |
| 92 | 0.423 |
| 93 | 0.358 |
| 94 | 0.301 |
| 95 | 0.243 |
| 96 | 0.179 |
| 97 | 0.133 |
| 98 | 0.060 |
Revisers’ Note.—This section is new. As this revision allows the payment of a gross sum for the discharge of the inchoate right of dower in certain cases, a method for calculating the sum to be paid is here provided. Chancellor Walworth of New York, in the case of Jackson v. Edwards, 7 Paige’s Ch. Rep. (N. Y.) 386, 408, many years ago, laid down the rule for determining the value of an inchoate right of dower, which rule has been generally recognized and followed. In that case Chancellor Walworth said: “The annuity tables have furnished the court with the means of ascertaining the probable value of the wife’s contingent right of dower during the life of her husband. These tables show the value of annuities which depend not only upon the continuance of single lives of different ages, but upon the continuance of two or more joint lives. The proper rule for computing the present value of the wife’s contingent right of dower, during the life of her husband, is to ascertain the present value of an annuity for her life equal to the interest in the third of the proceeds of the estate to which her contingent right of dower attaches, and then to deduct from the present value of the annuity for her life, the value of a similar annuity depending upon the joint lives of herself and her husband; and the difference between those two sums will be the present value of her contingent right of dower.” The tables given above are copied from “Inheritance Tax Calculations,” 1905, by S. Herbert Wolfe, and the method of using the tables is also taken from that work.
§5. Same; Example.—Suppose it is desired to find the present value of the wife’s inchoate right of dower in real estate worth $150,000 where the husband’s age is 40 and the wife’s 38. Pursuing the method prescribed in the preceding section, each step results as follows:
(a) A reference to Table I gives for the husband’s age the figures .00977, and for the wife’s age .00935, which figures added together give .01912, and this sum divided by 2, gives .00956;
(b) From Table I it is found that .00956 [the result obtained in (a)] falls between the ages 39 and 40;
(c) The figures given by Table I for age 39 are .00955, which, when subtracted from the result obtained in (a), leaves .00001;
(d) The figures given by Table I for age 39, .00955, when subtracted from the figures for age 40, .00977, leaves .00022;
(e) Dividing .00001 [the result obtained in (c)] by .00022 [the result obtained in (d)] the quotient is 1/22 or .045, which is the fraction to be added to age 39. In other words, the figures for the equivalent “equal ages” sought are 39.045;
(f) From Table II it is found that the present value of an annuity of one dollar payable during the joint existence of two lives aged 39 [the younger age found as directed in (b)] is $11,687;
(g) From Table II it is found that the present value of such an annuity for two lives aged 40 is $11.511, which subtracted from $11.687 leaves $.176;
(h) $.176 [the result obtained in (g)] multiplied by .045 [the fractional part of the “equal ages” found in (e)] gives $.008;
(i) $.008 subtracted from $11.687 [the figures taken from Table II as directed in (f)] leaves $11.579, which is the present value of an annuity of one dollar payable during the joint existence of two lives aged 39.045 years;
(j) $11.579 subtracted from $14.039, the value of an annuity of one dollar on the life of the wife at age 38 with interest at five per cent, as found in the Table in section one of this article, leaves $2.46;
(k) $2.46 multiplied by five per cent of onethird of $150,000, or $2500, gives $6150, which is the present value of the inchoate right of dower of the wife in the example given.