1 Barb. Ch. 598 | New York Court of Chancery | 1846
The master has mistaken the legal rights of the parties in respect to their several interests in the premises. Where the husband takes land by descent from his father, subject to the dower of his mother in the same, and the dower is afterwards assigned to her, such assignment relates back to the death of the father; so as to deprive the widow of the son, whb dies in the lifetime of his mother, of dower even in the reversion of the third of the estate which is assigned to the mother for dower. (Dunham v. Osborn, 1 Paige's Rep. 634.) And upon the same principle, where the estate descends to a daughter who is a feme covert, and who dies in the lifetime of the mother to whom dower in the premises is subsequently assigned, the husband of such daughter will not be entitled to an estate by the curtesy in the third of the premises which is thus assigned to the widow of his wife’s father, for dower; even after the termination of the life estate of such widow in that third of the premises. (Reynolds v. Reynolds, 5 Paige's Rep. 161.)
I am aware that a contrary decision was made by the supreme
The rule on this subject is thus stated in Coventry’s readable edition of Coke upon Littleton; “If there be grandfather, father and son, and the grandfather is seised of three acres of land in fee, and takes wife and dies, this land descends to the father, who dies either before or after entry, now is the wife of the father dowable. The father dies, and the wife of the grandfather is endowed of one acre and dies, the wife of the father shall be endowed only of the two acres residue. For the dower of the grandmother is paramount to the title of the wife of the fa ther, and the seisin of the father, which descended to him, be if in law or actual, is defeated. And now upon the matter thi,
In the present case, I presume there has been tlo actual assignment of the dower, either of the grandmother or of the mother of the infant daughter of Isaac Vander Bogert, in the one sixth of the estate which descended to him from his father. It must, therefore, be considered as a Case in which both widows are claiming dower in that part of the estate simultaneously, as against the infant heir. In such a case, the grandmother must be considered as first endowed of one third of the infant’s share; which, by relation, defeats the seisin of the father from the time of the descent cast upon him, as to that third, and the mother of the infant is only entitled to one third of the other two thirds, as her dower. The same principle must also be applied to the seisin of the mother of the other infant, which is defeated as to the one third thereof, by relation, from the death of F. Vander Bogert, the grandfather of the infant; so as to entitle her father to an estate by the curtesy in the other two thirds only. The computation of the value of the dower of AugUsta Vander Bo* gert, in the share of the farm which has descended to her infant daughter, must be ascertained by deducting one third from the value of one sixth of the whole farm, and then computing her
The master also erred in computing the interest of S. Cregier, upon the probable duration of a life of forty years only, when, in fact, he was nearer forty-one years of age than forty. He should, in that case, have taken the estimated value of the life of a person of the age of forty-one, as the basis of computation. The value of the dower of the grandmother, computed upon her age, which will be fifty-seven in about two months, and estimating the whole value of the farm at $5,000, as stated in the master’s report., is $139,04, in the one sixth of the estate belonging to each of the infants. The value of Augusta Yander Bogert’s dower in two thirds of one sixth of the value of the farm, her age being twenty-five years, is $134,03. And the value of the life estate of S. Cregier as tenant by the curtesy in two thirds of his daughter’s one sixth of the farm, calling his age forty-one years, is $352,97. The master’s report must be amended accordingly. And the special guardian is to be authorized to sell the infants’ interest in the farm ; the several adults having interests therein, joining in such sale, and consenting to bear their respective shares of the costs of this proceeding, in proportion to the value of their several rights and interests in the premises.
Order accordingly.