Class v. Strack

| New York Court of Chancery | Nov 20, 1915

Reaming, V. C.

The averments of the bill fully disclose that prior to the time when the act of March 3d, 1915, took effect defendant enjoyed an inchoate right of dower in the premises in question; she necessarily enjoys that right at this time if the act exempts from its operation inchoate rights of dower which existed as such when the act took effect.

The seventh section of the act provides as follows: “The estates and interests of dower, and right of dower and curtesy be and the same are abolished hereby; provided, however, that nothing in this act shall affect any of such estates or interests which may have become vested heretofore.”

I am satisfied that by the proviso above quoted the legislature intended to exempt from the operation of the act all dower rights or interests which existed prior to the time the act took effect, whether such dower rights or interests were either inchoate or consummate.

Had the proviso by its terms included only estates which had become vested it could appropriately be doubted whether an inchoate right of dower could be regarded as within its contemplation, as dower inchoate may be properly classified as an interest which is less than an estate in land; but the language “estates or interests,” when used as descriptive of dower rights, clearly comprehends an inchoate right of dower unless a contrary intent in some way is made apparent. Anderson’s Law Dictionary, citing Abbott’s Law Dictionary, in defining the word “interest,” says:

“The chief use of the word is to distinguish some right which cannot or need not be defined with precision. In some connections it includes title; in others advantages less than title. Sometimes it is added to words of a more definite meaning by way of precaution that no conceivable claim shall be omitted; sometimes it signifies an undefined share.”

But it is urged that the qualifying word “vested” is operative to exclude an inchoate right of dower from the operation of the proviso. I am unable to attribute that force to the word in the manner and connection in which it is used in the proviso here in question.

In some jurisdictions an inchoate right of dower is regarded as a mere possibility of future interest which is without present ascertainable value. But in this state the inchoate right has long been recognized by our courts as a present and fixed interest in land of substantial and ascertainable money value, and the legislation here in question must accordingly be understood in the light of that recognized quality of the interest. Regarding the legislative conception of the inchoate right as a present and fixed interest in land of ascertainable money value which accrues to a wife the moment her husband 'becomes seized of an estate of inheritance in land, the exclusion by the terms of the act of dower “estates or interests” which have become “vested” before the act takes effect can only be properly understood as including the inchoate right here in question. The word “vested,” even when used as descriptive of recognized legal estates, does not exclude defeasible estates. It is used to denote tire quality of a present estate, even though defeasible, as distinguished from that the very existence of which is contingent. A devise of land is vested when the devisee is existing and known and would be immediately entitled to possession or enjoyment were the precedent estate to terminate, although it is possible that before the time comes to receive it another person may come into being who will take in preference to the devisee. In a like sense may an inchoate right of dower which is recognized’by the laws of the state as a present interest in land of substantial and ascertainable value be regarded as a vested interest, notwithstanding the circumstance that it has not. ripened into a consummate freehold estate, and is also subject to being divested by death of the wife in the lifetime of her husband.

The recognition of this quality of an inchoate right of dower is found in repeated decisions of the courts of this state. In Wheeler v. Kirtland, 27 N. J. Eq. 534, our court of errors and appeals expressly bases its decision upon the conclusion that inchoate ¿lower is a present valuable interest in.land, and that its value is ascertainable and must be paid to a wife out of the money awarded as damages to the land in proceedings instituted by a municipality for the condemnation of the land for public use. A like conception of inchoate dower is made the basis of decision in In re Alexander, 53 N. J. Eq. 96, in which case it is declared that the legislature cannot destroy the inchoate right- of dower without compensation to the wife. See, also, Brown v. Brown, 82 N. J. Eq. 40; Lloyd v. Conover, 25 N. J. Law 47, 52, in which case Chief-Justice Green characterizes the right of inchoate dower as “vested.” Vreeland v. Jacobus, 19 N. J. Eq. 231; Conover v. Tindall, 20 N. J. Law 513, 515; Lousbery v. Locander, 25 N. J. Eq. 554, 557.

This view renders it unnecessary to consider the objection that the title to the act here in question is inadequate to satisfy the requirements of our constitution.

The bill filed herein also sets 'forth that at the time the mortgage was executed, under decree of foreclosure of which complainants herein hold, the mortgagor falsely represented to complainants herein, who were mortgagees, that he was a widower, and at- the time the mortgage was foreclosed the mortgagees, complainants herein, believed that defendant herein had married the mortgagor subsequent to the execution of the mortgage, and that the foreclosure bill accordingly made defendant herein a party defendant and averred that her marriage was subsequent to the execution of the mortgage, and that the subpoena served on defendant herein in the foreclosure suit was accompanied by a ticket which informed her that she was made defendant because she was the wife of the mortgagor, the owner of the mortgaged premises, and by reason thereof claimed a right of dower; and that she did not appear or defend the foreclosure. It is accordingly now urged that the decree in foreclosure was operative to bar her rights. It thus appears by the present bill that the subpoena ticket which was served on defendant herein in the foreclosure suit informed her that she was made defendant because she was the wife of the mortgagor and by reason thereof claimed a right of dower in the mortgaged premises. The present bill also asserts as a fact that she was the wife of the mortgagor at the time the mortgage was executed. Complainants thus seek to now bar defendant’s rights by reason of a foreclosure decree based on an averment which was contained in their foreclosure bill, which averment they now assert to have been false in fact, and of which averment the subpoena ticket served on defendant gave no adequate notice. The question presently presented does not therefore involve a consideration of the effect of that decree either standing alone or in connection with an application by defendant for relief against it, but, on the contrary, involves the right of complainants, as against defendant, to the benefits of that decree in this suit in which their own bill sets forth as a fact that the decree was erroneous as to the rights of defendant by reason of their own false averments in the bill under which the decree was entered. It is entirely clear that no equitable relief can be extended to complainants by reason of that decree under the averments of the present bill.

I will advise a decree dismissing the bill.