32 N.Y.S. 352 | N.Y. Sup. Ct. | 1895
The plaintiff in this action alleges that she is the wife of James Clifford, and, as such, has an inchoate right of dower in the premises described in the complaint; that in June, 1892, her husband was seised in fee of such premises, and at that time, in conjunction with some person unknown to the plaintiff, he executed to the defendants a deed ofi conveyance of the premises, which purports to have been executed by Maria Clifford, wife of James Clifford; that the plaintiff never signed nor acknowledged such deed; and she asked that the same, so far as it affects her, be set aside. The defendants demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, and that the plaintiff has not legal capacity to sue, because the action does not affect her separate estate. The demurrer was sustained, and the plaintiff has appealed from the judgment.
"While it may be quite doubtful whether the execution of the deed by Maria Clifford, wife of James Clifford, would constitute any bar or obstruction to the rights of Mary Clifford, the plaintiff, yet we have concluded to examine and decide the case upon its merits. While there is a difference between the rights of a wife and a widow in the land of her husband, yet both have rights which the courts will protect. The right of the wife is denominated “inchoate” or “incipient.” While it is not an estate, -nor an existing interest in land, yet it is based upon a possibility of becoming such, and it is the legal right of a wife to protect such possibility. Such inchoate right of a wife cannot be impaired or invaded, and it is entitled to the same protection as a vested right of a widow. Platt v. Brick, 35 Hun, 121; Mills v. Van Voorhies, 20 N. Y. 420; Simar v. Canaday,
The deed in question purports upon its face to release the inchoate right of dower of the plaintiff; at least such is its legal effect; and it should be nullified so far as she is concerned. We do not consider the objection to the capacity of the plaintiff to maintain this suit well taken. The action is for the protection of what may become her separate estate, and she can prosecute the same as if she were a single woman. The judgment should be reversed, with costs; and the demurrer to the complaint should be overruled, with leave to the defendants to answer in 20 days on payment of costs. All concur.