9 Johns. 245 | N.Y. Sup. Ct. | 1812
The proceedings before the surrogate, under the act of the 29th session, c. 168. are founded on the assumption that the widow is entitled to her dower out of the estate in question, and that it is only to be designated and set off. There is no provision for trying, before the surrogate, the title to dower; and the-admeasurement to be made, in pursuance of his order, cannot affect or prejudice the right to dower, or the legal or equitable bar to it. Those rights, if litigated, remain open for investigation in the ordinary course of justice. In reviewing the proceedings had under the surrogate’s order, we are, then, only to consider whether they have been fair and equitable. The admeasurers are not to do execution, as the sheriff does, on a writ of habere facias seisinam. They are in the nature of commissioners, to set off the one third in value of the estate, so as to prevent all difficulty and contention between the widow and the heir or tenant, as to the just extent or ascertainment of her dower. But if the right to dower be denied, the party may protect his possession, notwithstanding the admeasurement, and drive her to her action at law. We have, therefore, nothing to do in this case with the question, whether the widow’s acceptance of the provision under the will, formed a legal or equitable bar of her dower, though the court do not mean te intimate that they see any thing in the will to furnish ground for such an objection.
1. The allegation of the want of notice is completely and fully denied. The complainant was, in jthe first instance, cited before the surrogate, to show cause, and he appeared; and on the day to which the hearing was afterwards adjourned, by consent, he did not appear, and the admeasurers were appointed. He had likewise notice to attend the survey, and setting off the dower; for the commissioners met at his house for the purpose, and he expressly refused to show them the premises, or have any thing to do in the business. If notice of the admeasurement was requisite, here was sufficient notice, in the first instance, and a waiver of the necessity of any further notice. But the court do not mean to say, that notice by the admeasurers, of the time of admeasurement, was requisite. It is not required on the execution of an elegit, (Tidd’s Prac. K. B. 950.) and that is a proceeding more solemn, and very analogous to this.
2. On the merits of the admeasurement, there is not sufficient cause shown for the court to interfere. The objection to the want of a way across the 16 acres to the road, is not true in fact; for it appears, by the affidavit of one of the commissioners, that a sufficient passage was laid out, for the express purpose of enabling the complainant to communicate with the road. And as to the main charge, that more than one third in value of the land is laid out, it rests in the mere assertion of the complainant, without facts from which the court can deduce the conclusion. A reasonable confidence must be reposed in the admeasurement, and in the discretion and intelligence of the commissioners ; nor can the court say, that the dower assigned in the buildings is unequal, for the widow-had an interest in them under the will, and independent of the right of dower. As far as the court can judge from the return, the admeasurement is just and convenient.
Motion denied.
See Rathbun v. Miller, (6 Johns. Rep. 281.)