The opinion
GRAVES J.
(concurring.) — My views of this case can be shortly expressed. To my mind Section 391, *19 Revised Statutes 1909, is an absolute bar to an action to recover dower, where such action is brought, for the first time, more than.ten years after the death of the husband. This is the plain language of the law. But this construction of the statute does not necessarily bar the present action. The facts in this case show that the action is not so much an action to have dower assigned (by agreement of parties), but from which dower right the doweress has been but recently deforced. The dower can be assigned as well by agreement as by actual court action, just as partition of real estate can be had by agreement as well as by court action. The statute, supra, refers to an action for the original assignment or ascertainment of dower, and has no reference to a suit to enforce a dower right already agreed upon and assigned, but from which there was thereafter a deforcement, as in this case. Here the dowers involved were in equity and good conscience, and at law, as successfully assigned as if done by court action. This was done within the. ten years allowed by the statute, supra. Afterward the parties are deforced of this assigned (assignment made by agreement of parties) dower, and this action is broad enough to reinstate them to the rights of which they have been deforced. I further agree that the acts of the defendants are such as to estop them from maintaining that the statute (Sec. 391, R. S. 1909) applies. For these reasons, I concur in the result reached by our learned commissioner.