Sec. 608. Form for the petition for the assignment of dower. State of Oklahoma, County, ss.: Comes now the plaintiff, and, for her cause of action herein, alleges that on the to one day of 19, she was married day of who departed this life on the during their said coverinheritance in the following County, State of Oklahoma, 19-, and that the said ture, was seized of an estate in described real estate, in to-wit: (Here specifically describe same), and said plaintiff has never heretofore relinquished her right of dower therein; that the said and, are the children of plaintiff and deceased, and are the joint owners of said real estate, subject to said dower right, and that, by reason of the premises, she is entitled to have set off and assigned to her reasonable dower in the real estate above described. WHEREFORE, plaintiff prays that her reasonable dower in said real estate may be decreed her and an assignment thereof made in accordance with law, and for such other and further relief to which she may be entitled.* Sec. 609. The answer of heirs joining in prayer for dower. State of Oklahoma, County, ss.: Come now the defendants herein, and, for their answer, say that they admit each and every allegation in said petition contained and join in the prayer thereof. *The petition and the answer in proceedings for the assignment of dower need not be verified. The praecipe, summons and return by the sheriff are the same as in other actions. WHEREFORE, said defendants pray the court to protect their interests in said real estate and that they may go hence with their costs. Sec. 610. Decree of court awarding dower to plaintiff. DECREE AWARDING DOWER. This cause, coming on for hearing on the petition and the answer thereto, and was submitted to the court upon the evidence and the argument of counsel, and, upon due consideration thereof, the court finds that the said and during said coverture, seized of an and to the real estate described in the died intestate at 19; that the said, was, in his lifetime estate in fee simple in petition; that the said on the day of plaintiff, is the widow of deceased, and that she is entitled to have her dower in said real estate and premises assigned and set off to her as prayed for in her said petition. IT IS THEREFORE ordered, adjudged and decreed, that the said plaintiff, be endowed of one-third part of said real estate described in the petition, and that a writ issue to the sheriff of said County, commanding him that by the three judicious and disin oaths of and terested men of the vicinity and who are not of kin to any of the parties hereto, and who are appointed commissioners for that purpose, to set off and assign such dower to said plaintiff, according to law, and that of their proceedings, the said commissioners and sheriff make due return without unnecessary delay. Judge of said Court. Sec. 611. The writ of dower issued by the clerk to the sheriff. WHEREAS, in a certain petition for dower now pending in our court, wherein is plaintiff, and and are defendants, the real estate set forth in the petition. is as follows, to-wit: (Describe same) in which said premises plaintiff is entitled to dower. WE, THEREFORE, command you that by the oaths of and three men of the vicinity, you cause the one equal third part of said real estate to be set off and assigned to the said as and for her dower estate therein, and that you certify your proceedings herein to this court, without unnecessary delay and bring this order with you. Sec. 612. The return of the sheriff of his proceedings of com SHERIFF'S RETURN OF THE ASSIGNMENT OF As commanded by this writ, I have, by the oaths of and three judicious, disinterested men of the vicinity, and not of kin to any of the parties to this action, and who were duly appointed by the court for that purpose, caused to be set off and assigned to the said plaintiff, as her dower estate, so much of the lands and tenements of the deceased as is mentioned and described in the report of the com missioners hereto attached, marked Schedule "A," and which report is hereby made a part of this return. Given under my hand this day of 19-. Sheriff. SCHEDULE A.-COMMISSIONERS' REPORT. According to the command of the writ for the assignment of dower, issued in this case, and on the call of the sheriff of said county, we, the undersigned commissioners of the vicinity, and not of kin to any of the parties, after being first duly sworn, and upon actual view of the premises, so set off and assign to the said plaintiff, as and for her dower estate, the folCounty, Oklahoma, to-wit: lowing described real estate in (Here describe it.) Given under our hands this day of 19-. Commissioners. Sec. 613. Decree confirming the report of the commissioners day of Term, 19, 19, the same being a regular day of the of this court, upon the application of plaintiff to confirm the report of the commissioners assigning dower, and the same was presented to the court on the evidence, and was argued by counsel, and, upon due consideration whereof, the court finds said report regular and in due form of law and as provided by the statute in such cases made and provided. IT IS THEREFORE ordered, adjudged and decreed that said return of the sheriff and said report of said commissioners as to the assignment of said dower be, and the same are, hereby approved and confirmed, and that said plaintiff hold said real estate as and for her dower in the lands of decedent, and that the costs herein be taxed to Judge of said Court. Sec. 613a. Curtesy under Arkansas law-Tenant by curtesy defined. There is no statute on the subject in the State of Arkansas, and the common law rules as to this estate were in existence in that State. The courts of the State have always so held. By the common law, tenancy by curtesy is an estate for life, created by the act of the law. When a man marries a woman seized at any time during coverture of an estate of inheritance in severalty, in coparcenary or in common, and hath issue by her born alive, and which might by possibility inherit the same estate as heir to the wife, and the wife dies in the lifetime of the husband, he holds the land during his life, and it is immaterial whether the issue be living at the time of the seizin, or at the death of the wife, or whether it was born before or after seizin.49 Four things are requisite to the estate by curtesy, viz.: marriage, actual seizin of the wife, issue and death of the wife.50 The wife, according to the English law, must have been seized in fact and deed, and not merely a seizin in law of an estate of inheritance, to entitle the husband to his curtesy.51 The circumstances of this country have justly required some qualification of this strict letter of the law relative to a seizin in fact by the wife; and, if she be owner of waste, uncultivated lands, not held adversely, she is deemed seized in fact, so as to entitle the husband to his curtesy. The title 49 McDaniel v. Grace, 15 Ark. 483, 4 Kent. Com. 289; 1 Hilliard, 110; Neely v. Lancaster, 47 Ark. 175. 50 Ibid. 51 McDaniel v. Grace, 15 Ark. 483, 4 Kent. Com. 30. |