Jonas v. Hunt

40 N.J. Eq. 660 | N.J. | 1885

'The opinion of the court was delivered by

Dixon, J.

The complainant, Caroline K. Hunt, was married in 1858. At that time her husband was seized in fee of about sixty acres of land in the city of Rahway, which in 1862 he conveyed to Joseph E. Allen, whose title afterwards passed to Abraham H. Jonas, the defendant. The complainant never relinquished her ■dower in these premises, and, her husband having died in No■vember, 1883, the object of the present bill is to have her dower .^assigned. Between the making of her husband’s conveyance ¡and the date of his death, annual taxes for several years and two assessments for opening and grading Inman avenue were levied on the property and still remain unpaid, and the decree directs that dower be assigned to her free from these taxes and assessments. From this feature of the decree, relieving her estate from, these liens, the defendant appeals.

As to the taxes, the equity of the decree is cléar. With regard' to .the dowress, the owner of the fee occupied the position of a tenant per autre vie; he was entitled to possession during the husband's life, and thereafter, on demand, the widow's right matured. The owner, therefore, whs subject to the general rule that tenants for life in possession are bound to meet the annual charges upon the estate, so that they may not become a charge against those entitled in remainder. Cairns v. Chabert, 3 Edw. Ch. 312; Deraismes v. Deraismes, 72 N. Y. 154; Cadmus v. Combes, 10 Stew. Eq. 264.

But the assessments stand on a different footing. They represent permanent improvements of the property made after the-husband conveyed. If these betterments had been constructed by the alienee, the dowress would not have been allowed to-derive any advantage from them, and therefore would not have been chargeable with any part of their cost. “ If the husband make a feoffment in fee of lands, and the feoffee build thereon and improve the same greatly in value, yet the wife of thefeoffor shall have dower only according to the value it was of in the husband’s time, for if such feoffment were with warranty, the heir would be bound to render only the value as it was at the-time of the feoffment.” Bac. Abr. “Dower” B 5; Van Dorn v. Van Dorn, Penn. 697; Chiswell v. Morris, 1 McCart. 101. But the improvements were not constructed by the,alienee; they were made by the government, which must be regarded as acting with the assent and for the benefit of all persons interested in the property. Wadham v. Marlowe, 8 East 314, 317, note; Griswold v. Waddington, 16 Johns. 438, 447. The betterment,, therefore, should enure to the advantage of all parties, but, of course, upon condition that they equitably share the expense. Pratt v. Douglas, 11 Stew. Eq. 516. On assignment of dower, the widow will become tenant for life of one-third of the property, including, as already indicated, one-third of its betterments, and she should pay an equivalent for the advantage which she will thus gain beyond what her mere dower-right would afford. The improvements were purchased and are represented by the principal of the assessments, and the enjoyment of them for any time is worth the interest upon that principal. Plympton v. Boston Dispensary, 106 Mass. 544.

The decree should therefore direct that the widow have dower equal in value to one-third of the land with the municipal improvements, free from said taxes, but charged with the payment of one-third of the interest upon the assessments during her tenure.

This suit was not designed to affect, and cannot disturb the city’s lien; for the city is not a party. It only settles the mutual rights of the dowress and owner.

Let the decree below be reversed, and a decree be entered according to this opinion.

Decree unanimously reversed.