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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6564 January 27, 1989 DOWER: Right of election of widow in land owned by husband as joint tenant. JOINT TENANTS: Disclosure of marital status of male joint tenant in conveyance. A widow's right to elect dower does not attach to lands held by her husband as a joint tenant. Male joint tenants are required to disclose their marital status in conveyances of the lands held as joint tenant. Honorable Harry Gast State Senator Capitol Building Lansing, MI 48913 In your letter requesting my opinion, you state in pertinent part: "[T]he legislature adopted Section 1 of the Statement of Marital Status Act (the "Act"), Act No. 79 of the Public Acts of 1915, MCLA 565.221, as amended to provide that: " '... all written instruments conveying or mortgaging real estate or any interest therein, hereafter executed, shall state whether any and all male grantors, mortgagors, or other parties executing the instrument are married or single, and the register of deeds of the county in which the instrument is offered for record shall refuse to receive the instrument for record unless it conforms to the provisions of this act ...' "However, the case of Schmidt v Jennings, 359 Mich 376 (1960), held that: " '... there can be neither dower nor curtsy of an estate held in joint tenancy, and a devise by one joint tenant of his share will be inoperative, inasmuch as the right of survivorship takes precedence ...' "Therefore, it would appear that since a wife no longer has a dower interest in lands owned by her husband in joint tenancy, there is no practical reason to record the marital status of the male grantor on a deed as required by Section 1 of the Act. "As such, I am, respectfully, requesting your office to render a formal opinion to clarify this issue." The right to elect dower has been recognized within the territory now embraced by this state either at common law or by statute at all times since the British first claimed sovereignty over the territory. The right to elect dower was first codified by the Ordinance of 1787 (The Confederate Congress, July 13, 1787). May v Rumney, 1 Mich 1 (1847). As our court observed in May v Rumney, 1 Mich at 5-6. "[W]e have legislative and judicial construction of this clause in the ordinance which seems to establish its true meaning to be (as at common law), that the wife is entitled to be endowed for her natural life of the third part of the lands whereof her husband was seized, either in law or in deed, at any time during the coverture. 4 Kent's Com. 35; Park on Dower, 5. "So highly (says Judge Kent) was the law of dower esteemed, and so anxious were our forefathers to secure its undisputed establishment, that in its modern sense and enlarged extent, as applying to all lands of which the husband was seized during the coverture, it was incorporated amongst the provisions of Magna Charta, and it has continued in the English law to the present time; and with some modifications it has been everywhere adopted as part of the municipal jurisprudence of the United States. 4 Kent's Com. 36. "To the consummation of the title to dower three things are requisite, viz.: marriage, seizin of the husband, and his death. 4 Kent's Com. 36. The concurrence of the two former circumstances is properly the groundwork of the title of which the death of the husband is the consummation. 4 Kent's Com. 36; Park on Dower, 7. From the period when the husband dies, the incipient title which existed in the wife during the coverture becomes consummated and perfected, and her right of action to obtain the fruits of that title commences. Park on Dower, 247." RS 1846, c 66, Sec. 1, MCL 558.1; MSA 26.221, statutorily recognizes and codifies the same right a married woman had at common law. (1) It provides: "The widow of every deceased person, shall be entitled to dower, or the use during her natural life, of 1/3 part of all of the lands whereof her husband was seized of an estate of inheritance, at any time during the marriage unless she is lawfully barred thereof." That right attaches to any lands in which the woman's husband held fee title (2) at any time during the marriage, unless the woman's right to elect dower has been barred. There are, of course, interests in land to which a right to elect dower will not attach. Among those which may be identified are: (a) A lessee's interest. Redman v Shaw, 300 Mich 314; 1 NW2d 555 (1942). (b) A life estate. Spears v James, 319 Mich 341; 29 NW2d 829 (1947); Case v Green, 53 Mich 615, 19 NW 554 (1884). (c) A tenancy by the entireties. Agar v Streeter, 183 Mich 600; 150 NW 160 (1914). (d) Joint tenancies. Midgley v Walker, 101 Mich 583; 60 NW 296 (1894); Smith v Smith, 290 Mich 143; 287 NW 411 (1939); Schmidt v Jennings, 359 Mich 376, 102 NW2d 589 (1960). (e) Estates in partnership. Scheurman v Forbman, 245 Mich 688, 224 NW 604 (1929); See Porter v Landis, 329 Mich 76, 44 NW2d 887 (1950). (f) Oil and gas leasehold interests. Redman, supra. (g) Lands to which title is held by the husband in a fiduciary capacity. Sagendorph v Lutz, 286 Mich 103; 281 NW 553 (1938). Recognizing that lands held in fee by a married man alone may be subject to his wife's inchoate right of dower, and ultimately should the husband predecease his wife to the widow's right to elect dower, (a) how may a third party acquire fee title free of any possible claims of dower; and (b) how may subsequent purchasers ascertain that the lands they purchase are free from possible claims of dower by the widows of male grantors in the chain of title? First, a married woman may bar her right to elect dower by joining in the execution of her husband's conveyance or by executing a subsequent deed to one who then holds title. Const 1963, art 10, Sec. 1; 1981 PA 216, Sec. 1, MCL 557.21; MSA 26.165(1); RS 1846, c 66, Sec. 13, MCL 558.13; MSA 26.229. See Michigan Land Title Standards, 4th Ed (State Bar of Michigan, 1982) Standard 4.10. Second, as the Michigan Land Title Standards, supra, Standard 4.6 recognizes: "Designation in a conveyance of a grantor or mortgagor as 'a single man' or 'an unmarried man,' may be relied upon provided the chain of title does not indicate that such grantor or mortgagor was married prior to the recording of the instrument containing such designation." (3) Standard 4.8, however, cautions: "Notwithstanding the designation of a grantor or mortgagor as 'a single man,' 'an unmarried man' or 'a widower,' if the chain of title indicates that he had been a married man, an examiner should require satisfactory record evidence of the disposition of the wife's dower right by death, divorce or otherwise." This ability of title examiners, title insurers, purchasers, sellers and lenders to rely upon the records maintained by a register of deeds, and the free, unencumbered alienability of land has been and is facilitated and promoted by two 1915 legislative enactments, 1915 PA 79, MCL 565.221; MSA 26.581, and 1915 PA 123, MCL 565.451a et seq; MSA 26.731(1a) et seq. 1915 PA 79, Sec. 1, MCL 565.221; MSA 26.581, requires disclosure of the marital status of male persons executing deeds, mortgages and other written instruments of conveyance. To quote the statute: "All written instruments conveying or mortgaging real estate or any interest therein, hereafter executed, shall state whether any and all male grantors, mortgagors, or other parties executing the instrument are married or single, and the register of deeds of the county in which the instrument is offered for record shall refuse to receive the instrument for record unless it conforms to the provisions of this act. If the instrument has been recorded in the office of register of deeds of any county without the instrument showing the marital status as herein required, an affidavit stating the facts, executed in conformity with the provisions of Act No. 123 of the Public Acts of 1915, as amended, being sections 565.451a to 565.453 of the Michigan Compiled Laws, may be recorded in such register's office. Upon the recording of the affidavit showing the marital status of the male grantor, mortgagor or party executing, on the date of the instrument, the record of the affidavit and the record of the instrument shall be effectual for all purposes of a legal record, and the record of the instrument and affidavit or a transcript thereof may be given in evidence in all cases, and the instrument shall be construed to be as valid and effectual as if it had contained a statement showing the marital status of the male person or persons executing it. "If an instrument has been recorded in the office of register of deeds of any county without the instrument showing the marital status as herein required, and a period of 10 years has elapsed since the recording of the instrument, the record of the instrument or a transcript thereof may be given in evidence in all cases and shall be effectual for all purposes of a legal record and such instrument shall be construed to be as valid and effectual as if it had contained a statement showing the marital status of the male person or persons executing it." 1915 PA 123, supra, permits the recordation of certain affidavits concerning parties to instruments of conveyance including the marital status of parties named in deeds, wills, mortgages and other instruments affecting real property. 1915 PA 123, supra, Sec. 3, provides: "The affidavit, whether recorded before or after the passage of this act, may be received in evidence in any civil cause, in any court of this state and by any board or officer of the state in any suit or proceeding affecting the real estate and shall be prima facie evidence of the facts and circumstances therein contained." These acts wisely provide a mechanism by which persons buying, selling, insuring, or acquiring security interests in land, may (by reference to publicly maintained records) determine whether lands are or are not subject to possible claims of dower. Although it is understandable that you have concluded from your quotation from the Schmidt case, supra, that it had a foreclosing effect upon a wife's "dower interest in lands owned by her husband in joint tenancy," the state of the law in Michigan prior to the Schmidt case, and prior to Midgley v Walker, 101 Mich 583; 60 NW 296 (1894), the case from which the language you quoted was itself quoted, had been that dower did not attach to an estate held in joint tenancy. Needless to say, Midgley, which was decided in 1894, preceded 1915 PA 79, supra, and 1915 PA 123, supra, respectively. These two 1915 public acts merely evidenced the legislative intent to require male "joint tenants" executing conveyances to disclose their marital status. I find no constitutional objection to the enforcement of a statute requiring the conveyances offered to the register of deeds for recordation include the marital status of a male "joint tenant" executing the conveyances. It is my opinion, therefore, that a widow's right to elect dower does not attach to lands held by her husband as a joint tenant. It is my further opinion that male joint tenants are required to disclose their marital status in conveyances of the lands held as joint tenants. Frank J. Kelley Attorney General (1)
(2)
RS 1846, c 62, Sec. 2, MCL 554.2; MSA 26.2, defining estates of inheritance, provides:"Every estate of inheritance shall continue to be termed a fee simple, or fee; and every such estate, when not defeasible or conditional, shall be a fee simple absolute, or an absolute fee."
(3)
Relying on MRE 803.15 as authority, Comment A to the Standard states:"It is now provided by court rule that recitals may have evidentiary value when contained in: (a) 'a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document,' or (b) 'a document in existence twenty years or more the authenticity of which is established.' MRE 803 (15) and (16)."
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