59 Mass. 532 - Sloan v. Whitman — 59 Mass. 532

Maria C. Sloan vs. Seymour Whitman. A demand of dower, made by an attorney in fact, in virtue of a power authorizing him, for the constituent and in her name and behalf, to demand her just dower to be assigned to her, “ in any and all of the before-mentioned premises, or any other,” no premises whatever being mentioned in the instrument, is insufficient; although such authority is subsequently ratified by the constituent, by a second power of attorney, in which she recites the former, and authorizes the same attorney to commute for and settle all her claims of dower in the premises, no premises being otherwise mentioned in such power of attorney, than by reference to the former power. This was a writ of dower, sued out of this court on the 29th of April, 1849, in which the demandant, describing herself as of Cincinnati, in the state of Ohio, widow of the late Douglass W. Sloan, deceased, demanded her dower in certain premises described in the writ, of which she alleged she had made a demand on the 27th of March preceding. The case was submitted to the court upon an agreed statement of facts, from which it appeared, that the demand of dower was made by the demandant’s attorney, in virtue of two powers of attorney duly executed by the demandant. The first was dated on the 4th of October, 1841, and is as follows: — “ I, Maria C. Sloan, do hereby, for divers good considerations, constitute and appoint Keyes Danforth, Esq., my true and lawful attorney, for me and in my name and behalf to demand my just dower to be assigned to me, in any and all of the before-mentioned premises or any other. In testimony I have hereto set my hand and seal the fourth day of October, A. D. 1841.” The second instrument, of which the following is a copy, bore date the 16th of September, 1843: — “ Whereas, I, Maria C. Sloan, did, by a certain instrument in writing dated October 4, 1841, duly signed and sealed by me, constitute Keyes Danforth, Esq., my true and lawful attorney to demand in my name my just dower to be assigned to me in certain premises in said instrument described and referred to : — 11 Now these presents are to further authorize and empower the said Keyes Dan-forth, in addition to the power in said instrument given for like consideration to commute for and settle all my claims to dower in said premises or any of them, in such manner and for such sums as shall be by him deemed best for my interest; and to receive all moneys, and to give all necessary receipts and discharges, in as full a manner as the same could be done by me in person. In witness whereof 3 have hereunto set my hand and seal this 16th day of September, A. D. 1843.” T. Robinson, for the demandant. W. Porter, for the tenant. — Shaw, C. J. (majority) Shaw, C. J. This is an action to recover dower, the only-question in which relates to the sufficiency of the demand. This question depends on the power of attorney made by the plaintiff to Keyes Danforth, seven years before it was acted upon, which appears to be defective in not naming the deceased, in right of whom, as widow, the demandant claimed dower. We do not, however, place the decision of the case on that ground, but on the ground that the power itself is wholly defective. The authority given is, “to demand my just right of dower to be assigned to me, in any and all of the before-mentioned premises or any other.” What premises ? This is the whole of the paper, and none are mentioned. One of two conclusions must be drawn from this, either that a description was intended to be inserted or annexed, which was not done, and so the instrument is inchoate and incomplete; or that the paper produced was written upon or annexed to another paper, and constituted a material part of it, from which it has been separated; and that such separation is a material alteration, which invalidates the instrument. The demandant executed another power to the same attorney, two years later, authorizing him to compound for her right of dower, in which paper she recites the former instrument, as one authorizing the attorney to demand “ my just right of dower to be assigned to me in certain premises in said instrument described and referred to.” This is so far from operating as a confirmation or ratification of the former paper, that it rather has a contrary tendency, to show that the paper actually executed by her must have been different from the one now produced, by showing that the former contained a description of the premises, or a definite reference to some other existing document. The terms, “ or any other,” added to the word “premises” in the first paper, add nothing to its mean* ing, no premises being described. Judgment for the tenant.