Clough v. Elliott

23 N.H. 182 | Superior Court of New Hampshire | 1851

Eastman, J.

Chase Eowler, the former husband of the plaintiff, Parney B. Clough, took the lands in question by devise from his father, Jonathan Eowler, charged with certain provisions for the support of his mother, Hannah Eowler. These provisions were a charge upon the land and run with it. Veazey v. Whitehouse, 10 N. H. Rep., 409; Sheldon v. Purple, 15 Pick. Rep., 529.

Had Chase Fowler died in possession of the lands, his widow could not have had dower assigned to her, till the provisions of the will were secured. A probate court would not have appointed a committee for that purpose, till a proper indemnity was given to the widow of Jonathan Eowler, as the charge of her support was upon the whole land. And it would seem that even were a bond given, that the charge would still rest upon the land. Sheldon v. Purple, 15 Pick. Rep., 529 ; Gove v. Brazier, 3 Mass. Rep., 523 ; Wyman v. Brigden, 4 Mass. Rep., 150.

But before the decease of Chase Eowler, he conveyed all his interest in the property to the defendant, Eunice, his sister, who afterwards married Henry Elliott, the other defendant. Eunice took the land, subject to the same charges in supporting' her mother, as those which rested upon Chase Eowler; and she has sustained them. The plaintiffs cannot stand in any better position than they would have done, had the conveyance not been made. The pleadings show no support for the widow of Jonathan Eowler, rendered by the plaintiffs, and none offered. This, we think, a sufficient answer to the claim. To allow the plaintiffs to recover, might be, so far as the facts appear, to place it beyond the power of the defendants to carry out the provisions of the will.

Upon analogous principles, this view of the case is sustained by authority. A widow must contribute her clue proportion of a mortgage debt before she can have dower in the premises mortgaged; Gibson v. Crehore, 5 Pick. Rep., 146 ; Swain v. Perine, 5 Johns. Ch. Rep., 482; 4 Kent’s Com., 46; Bullard v. Bowers, 10 N. H. Rep., 500 ; Cass v. Martin, 6 N. H. Rep., 25.

Before the plaintiffs .can maintain an action, there must be security furnished. by the claimants, to sustain their due proportion of the burdens chargeable upon the land; or at least an offer to furnish security. There is no hardship in such a requirement. The lands are holden for the fulfilment of the will, and it appears to us more just before awarding the dower, to require the security, than to grant the plaintiffs them claim and thereby, perhaps, subject the widow of Jonathan Fowler and these defendants to bring suits to enforce the provisions of the will upon the plaintiffs.

Judgment for the defendants wpon the demurrer.