2 Paige Ch. 377 | New York Court of Chancery | 1831
I think it would be carrying the principle too far to permit this cause to be argued before the present chancellor, without revival, and then to enter a decree nunc pro tunc, as at the time when it was argued before his predecessor. If the executor has the right to revive, such a course is unnecessary; and if the whole grounds of the suit have been removed by the death of the complainant, it would be against the settled practice of the court to hear an argument of the original merits of the cause, merely for the purpose of determining a question of costs between the parties. (12 John. R. 500. 1 Sim. & Stu. 39. 3 John. Ch. R. 317, Mad. & Geldart’s R. 365.)
Where the dowress brings her action at law, if she dies before her right is established, her representatives have no remedy for costs, or for the mesne profits of the premises after her right accrued. By the statute of Merton, (20 Hen. 3 c. 1; R. L. of 1813, p. 57, § 2,) she could only recov. er damages, in cases where the husband died seised. And even in cases coming within that statute, if she had not made a formal demand of dower, before suit brought, the defendant at law might plead that he had been always ready to assign the dower, and thus excuse himself from damages and costs. But in chancery the rule is different. There, if the husband died seised, the widow may recover against the heir,, or devisee, her share of the rents and profits from the time the right accrued, although no demand was made previous to the commencement of the suit. Mundy v. Mundy, 2 Ves. jun. 122. Russell v. Austin, 1 Paige’s R. 192. Hazen v.
It is however insisted on the part of.the defendant in this suit, that as the husband did not die seised, the wife could not have recovered any arrears of dower, if living. If he is right in that position, the petitioner cannot revive merely to settle the question of costs. It is evident that, under the statute which was in force at the death of the complainant, no damages for arrears of dower could have been recovered at law ? and the question is whether this court, in a direct proceeding here for the dower, will give to the complainant a more extensive remedy. At common law, and before the statute of Merton, the widow could in no ease recover damages in an. action of dower at law ; and this court had not at that time assumed- jurisdiction of suits for dower, except in, those cases where the tenant interposed some equitable defence, or proceeding to prevent her recovery in the common law courts. Since the passing of that statute, courts of law have permitted the tenant to interpose a technical defence, to the claim for damages and costs, that he has always been ready to assign dower, but that the plaintiff has never demanded it of him-Even at law, however, the plaintiff was entitled to recover the value of the use of one 'third of the premises, from the death of the husband, if this pléa was not interposed, or if a demand was proved. (Dobson v. Dobson, Cases Temp. Hardw. 19.) In this court, under the equity of that statute, the heir or devisee, who have actually received the widow’s share of the rents and profits of the premises, has been considered as holding the same in trust for her, although a formal demand of dower had not been made. Roper seems to take it for granted, that the court of chancery would go still further ; and give to the wife a remedy for arrears of dower in cases not embraced by the statute of Merton. (1 Roper’s Husband &
r The petition is dismissed in this case, but without costs.
