4 Wend. 630 | N.Y. Sup. Ct. | 1830
By the Court,
The only question presented by this appeal is whether the post nuptial provision made by the husband for his wife was intended to be in Eeu of dower, This, as I understand the law, was not a question to be settled by the surrogate, and consequently not to be raised and determined on this appeal. The proceedings before the surrogate assume that the widow is entitled to dower out of the lands in question. She does not get possession by the agency of the admeasurers ; but if what is assigned to her by them is not quietly yielded up she must resort to her aection.
The review here of the proceedings of the surrogate [looks only to the regularity and fairness of what has been done by him and the admeasurers, on the assumption that the widow has a right to dower. ■ We have nothing to do now with the question whether she is barred of his right by the the provision made for her by her husband in 1820. The cases Ex parte Martha Watkins, (9 Johns. R. 245,) Jackson, ex dem. Clarke, v. Randall, (5 Cowen, 168,) and Jackson, ex dem. Sitzer, v. Waltermire, (5 id. 299,) are decisive authorities on this point.
The notion that what the widow received from her husbands, if it was not to be in lieu of dower, ought to have been taken into consideration by the admeasurers, and should have so far diminished the amount designated by them that both parcels, viz. that which she received from her husband, and that admeasurered to her, should not have exceeded her pars rationabile, does not not seem to have any countenance from authority, although its application in some cases, and probably in this, considered in an equitable point of view} might not produce effects to be regretted. If the provision made for the claimant in this case did not operate as a bar to her whole dower in the lands of which her husband died seised, I know of no principle by which it can be adjudged to bar any 'rateable proportion of it.
Proceedings of the surrogate affirmed.
