The opinion of the court was delivered by: MORRIS
This is a proceeding for a judgment declaring the right of curtesy in the plaintiff of certain lands, the title to which was in Anna Marie Sullivan Collum, the plaintiff's wife and the minor defendant's mother, at the time of her death. A guardian ad litem was appointed for the minor and, upon answer being filed, the plaintiff has moved for summary judgment. There is no controversy concerning certain tracts of land, the title to which was acquired by the deceased wife by deed or by inheritance from persons other than her father, James Sullivan. The controversy is as to three parcels of land owned by her father, James Sullivan, at the time of his death, the title to which passed to five children, including the deceased wife, subject to the widow's right of dower. Two of the children predeceased Anna Marie Sullivan Collum, thus vesting in her an undivided one-third interest in said parcels subject to her mother's dower. No formal assignment of dower was ever made. The mother, however, managed and controlled the entire property until her death. It cannot be said, therefore, that Anna Marie Sullivan Collum had seisin in fact as to such property. Under the statute in force in the District of Columbia, however, it is provided:
"On the death of any married woman owning real estate in fee simple and intestate thereof, if there has been a child born of the marriage capable of inheriting said property, the husband surviving her shall be entitled to an estate by the curtesy therein, whether the wife's estate be legal or equitable and whether the wife's seizin be in deed or in law only. " (Italics supplied.) Act of March 3, 1901, D.C.Code 1929, Title 14, Chapter 2, Section 42.
It is contended by the guardian ad litem that the wife did not have seisin in fact nor in law, because, no assignment of dower having been formally made, the inchoate right of dower extended to all of such land. With this contention I cannot agree. At most the widow's dower right was as to only one-third of the property, and this interest could not be enlarged by her failure to exercise the right to have such dower assigned. Such assignment can be accomplished by parole and, in view of the mother's management of the property for herself and her children, it will be presumed that she had an undivided one-third interest for life in such property, and that her daughter, Anna Marie Sullivan Collum, was seised in law as to her one-third of the remaining two-thirds at the time she predeceased her mother.
The motion for summary judgment will be granted, and a decree entered declaring that the plaintiff, J. Edward Collum, as and for his curtesy rights, is vested with a life interest in the following property, in which his wife died seised of an interest, to the extent hereinbelow shown:
(a) In the whole individed interest which his deceased wife had at her death in each of the following properties:
Lot No. 874, Sq. 518, being premises known as 412 H St., N.W., in the City of Washington, D.C.
Lot No. 873, Sq. 518, being premises known as 414 H St., N.W., in the City of Washington, D.C.
Lot No. 804, Sq. 517, being premises known as 411 H St., N.W., in the City of Washington, D.C.
Lot No. 52, Sq. 518, being premises known as 740 Fourth St., N.W., in the City of Washington, D.C.
(b) To the extent of two-thirds of the undivided interest which his deceased wife had at her death in each of the following properties:
Lot No. 51, Sq. 518, being premises known as 742-44 Fourth St., N.W., in the City of Washington, D.C.
Lot No. 34, Sq. 529, being premises known as 315-317-319 G Street, N.W., and 701 Fourth Street, N.W., in ...