13 N.Y.S. 648 | N.Y. Sup. Ct. | 1891
This is an action for the recovery of dower right, brought against the estate of and beneficiaries under the will of the late Thomas Gardner by the plaintiff, as the personal representative of the assignee of such dower right. The widow and dowress, by deed dated the 18th day of October, 1888, assigned her dower and right of dower to Sallie A. Howell, plaintiff’s intestate, who subsequently diéd August 7, 1889, and this action was commenced after her death, October 5, 1889. Ho action for admeasurement of dower in any shape was brought in the life-time of Emma Gardner. The sole ground upon which the complaint was dismissed was that an action for dower, commenced after the widow’s death, will not lie. If this ground is well laid, it is unnecessary to discuss the other questions raised upon this appeal, as to whether or not the will creates a trust-estate incompatible with dower, and therefore compelled an election" by the dowress. A consideration of the character of the action itself will determine whether or not, after the death of the widow, it can be maintained. The judgment upon the allegations of the complaint asked for is “that the plaintiff have dower of all the testator’s lands, and that the same be set off and admeasured,” and, in the alternative, “that a gross sum be decreed.” It will thus be seen that the present action is not a proceeding under the Code by the. widow for dower assigned, or for damages for withholding dower, but is an action to admeasure dower. The judgment to be entered in such an action is that provided by section 1613 of the Code, which authorized judgment awarding the widow during her natural life actual possession of a certain portion of the property, or that she be paid a certain sum annually .during her life, and that damages may be awarded her for withholding dower. Whatever doubt may have existed at common law as to the right to assign, it has been settled in this state that a widow’s dower right, although not admeasured, is an absolute right, which is assignable. Pope v. Mead, 99 N. Y. 201; Payne v. Becker, 87 N. Y. 153. While, therefore, the assignment made by Emma Gardner to Sallie Howell of her dower right, if any existed, was valid, it still remains to be determined what effect the death of Mrs. Gardner had upon such right prior to its being admeasured. Authorities can be cited for the maintenance of an action to admeasure dower, brought by the assignee; but in all the cases it will be found that such right was recognized and enforced only during the life-time of the widow. In Kyle v. Kyle, 67 N. Y. 407, it is said: “By the Revised Laws (1 Bev. Laws, p. 60, § 1) she might transfer at any time in her life.” The dicta to be found throughout the opinion in this case will show that the court was of opinion that such an action could only be maintained during the life-time of the dowress. In the case of McKeen v. Fish, 33 Hun, 30, affirmed in 98 N. Y. 645, is a direct authority against the appellant’s contention. In that case the appellant’s testatrix commenced an action to have her rights of dower determined. A reference was ordered, and before any interlocutory judgment was entered the widow served a consent in writing, agreeing to receive a gross sum in lieu of dower. Subsequently, and while the action was still pending, and prior to the determination thereof, she died. The trial proceeded, and subsequently the referee found and reported a state of facts that would have entitled the widow, had she been living, to some right of dower. Davis, J., in the course of the opinion, says: “We are of opinion "that at the time of the death of the plaintiff’s testatrix her action, notwithstanding the filing of the consent, had not reached a state or condition in which she was- entitled to claim a vested right to a gross sum of money, equal to the value of her dower in the property, or any part thereof. A different state of things might exist if her right of dower had been determined, and the proceedings in the action had reached a stage in which the court had adjudged that a sale of the premises be made. * * * Until it has been determined whether a parcel or parcels will be set off to the widow or a sale ordered, and the value of her life-interest invested and paid to her, after she is adjudged to be entitled
