Name/Title
Re Shipman DowerEntry/Object ID
2014.07.14a-cScope and Content
The document contains typewritten correspondence from the barristers Greig & Jamieson Barristers and Solicitors of the Supreme Court. The document is dated December 13, 1897 and is advising someone on the legality of a specific properties history, specifically the dower of a widow.
Transcription:
Greig & Jamieson SOLICITORS FOR THE BANK OF MONTREAL
Barristers & Solicitors
Of the Supreme Court Almonte, Ont. 13th. Dec. 1897
A.M. Greig Harold Jamieson
Messrs Greig and Jamieson,
Barristers &c/Almonte,
Dear Sirs: Re Shipman Dower.
I have given your letter of 9th. Inst, enclosing memo. Of facts in this matter, the best consideration I can. My opinion is against the validity of the claim to dower. The difficulty in the way is the outstanding mortgage of 1852, coupled with the fact that the husband at the time of his death, was not beneficially entitled to the land.
The Statute of 1979 does not affect the case one way or the other, as it has no application to mortgages made before it was passed, and, apart from the effect of the ? (unreadable) statute, this case seems clearly one, covered by Section I of the Revised Statute, Chap. I33. The Estate of Sylvanus K. Shipman in this property never was a legal estate, but was always merely an equitable one, and he did not die beneficially entitled to it. His widow has, therefore, so far as I can see, no claim to dower in it.
Your memorandum states that a few weeks after the conveyance to Sylvanus K. Shipman, the mortgagee, by sale of other property, satisfied the amount due on his mortgage, and if the mortgage had been then discharged, or the legal estate reconveyed (sic) to Sylvanus K. Shipman, there would, I think, be no question but that his widow was now entitled to dower at law, but the absence of this reconveyance or of any discharge of the mortgage is the whole difficulty. The legal estate never was in Sylvanus K. Shipman. It is even yet outstanding, and as the estate of Sylvanus K. Shipman never was more than an equitable one, it was necessary
(2)
that he should die beneficially entitled to give his widow a right to dower, in such equitable estate.
The only view I have been able to suggest to myself in which the widow could now obtain dower, is that equity might assist her by removing out of her way the satisfied mortgage. In a case of Heney v Lowe, 9Gr.265, it is said that this would be done, but the later cases, especially the Music Hall case you refer to, take no notice of any such equity and I should not venture to advise reliance upon it, especially in a case of this kind where the rights of a purchases for value have intervened and where such purchaser no doubt bought on the faith of the outstanding mortgage preventing any clain(sic) to dower attaching; such purchaser very likely took without any notice that the mortgage was satisfied, at all events as the claim to dower would have to be asserted against such a purchaser, I could not advice an action in relianc(sic) only on the equity to remove the satisfied mortgage out of the way of the doweress(sic). I have thought it probable the equity spoken of might not be invoked with the same force by a widow who had not been a party to the satisfied mortgage or whose husband had take the mortgaged estate prior to the mortgage. You do not state the date of the marriage in this case but simply that it was before the conveyance by the sheriff.
I thought it likely however that the marriage was subsequent to the mortgage and al all events the estate was under mortgage when it descended to Sylvanus K. Shipman. The sale under execution by the Sheriff does not in itself cut out the right to dower at all, any more than a sale by Shipman himself would have done so if his wife did not join in the Conveyance to bar her dower, but the importance of the Sheriff's sale is that it disposed of the husband's equitable estate to that he did not
(3)
die beneficially entitled to it.
I have referred to a great number of American cases, but am afraid not much advantage is gained from them. It seems well established there that if a lien under a judgement exists against the husband's lands before his marriage and the land is afterwards sold to satisfy the judgement the mife's right of dower is defeated. In the present case you have not stated the date of the marriage and if the lands were bound by the execution before the marriage the principle of these American decisions would probably be another obstacle in the way of the widow, but for the reasons I have given I am afraid she has not in any event any claim now.
If entitled to dower at all, her right with reference to the improvements, would be the same as though the land hand been conveyed by her husband without her joining to bar dower. At all events it is so laid down in the American authorities and would seem so on principle. Such rights are defined by our Statute R.S.O.c56 sec.I2(2). I return your memo. of facts enclosed.
Yours Truly,
(sd) A.B. Aylesworth
[end]Collection
DocumentCataloged By
Fournier, SarahLexicon
Nomenclature 4.0
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CorrespondenceNomenclature Sub-Class
Other DocumentsNomenclature Class
Documentary ObjectsNomenclature Category
Category 08: Communication ObjectsArchive Details
Date(s) of Creation
Dec 13, 1897Archive Size/Extent
3 pagesArchive Notes
Date(s): 1897Location
Location
Container
Archive Box 2Shelf
1Cabinet
Archive CupboardRoom
Collections RoomBuilding
M.V.T.M.Category
PermanentDate
November 7, 2023Location
Container
1Shelf
1, 1Room
Collections RoomBuilding
M.V.T.M.Category
PermanentMoved By
Fournier, SarahDate
February 21, 2017Location
Container
Box 3Cabinet
Red SideboardRoom
Collections RoomBuilding
M.V.T.M.Category
PermanentMoved By
Fournier, SarahDate
February 21, 2017General Notes
Note
Status: OK
Status By: MacMillan, Lindsay
Status Date: 2020-11-26Created By
admin@catalogit.appCreate Date
February 22, 2017Updated By
admin@catalogit.appUpdate Date
November 11, 2023
