20 N.J. Eq. 190 | New York Court of Chancery | 1869
John G-. McLaughlin died intestate, May 2d, 1861, seized of a number of houses and lots in Jersey City, in one of which he resided at his death. He left his widow, Abby Ann McLaughlin, and six children, his heirs-at-law. Two of these children were minors at his death. Some of these children were children of his widow, the others were children of his first wife. The widow remained in possession of the mansion-house until her death, on the 20th of August, 1868. Dower was never formally assigned to her. The administration of the personal estate of her husband was granted to her. By tacit consent of all the heirs who were
The bill in this case was filed in her life time for a partition, and for an account by her of the .rents of the estate.
The master reported that a partition could not be made 'without great injury, and that the property should be sold, and that the dower of the widow should be sold with the lands. The lands were all sold in the life of the widow, and all conveyed except one. lot in Green street, which, upon refusal of the purchaser, to comply with his contract, was ordered to be re-sold, and was re-sold after her death. On tire 28th of June, 1868, the widow filed her petition electing to accept a gross sum in lieu of her dower, and an order was made on July 7tli, 1868, to refer it to the master to ascertain and compute the value of her dower. She had, in compliance with the prayer of the bill, rendered her account of the .rents and profits of the estate, in which she charged five per cent, for collecting them, and claimed one third as due to her in her right as dowress, but did not charge herself -with the rent of the mansion-house, and the office on the adjoining lot, which had been occupied as such by her husband, in his lifetime. It was also referred to the master to examine and state her account.
The master made a separate report upon each order of ¡.reference to him. In the report upon the order to state the .accounts, he charged her with the value of the mansion-house from the death of her husband, or rather from May 1st, the day before his death. To this the complainant, as • executrix of her mother, the widow, excepts, claiming that as dower was never assigned, the widow was entitled by virtue of the statute, to remain in possession of the mansion-house and messuage attached, without rent, until dower was assigned.
The master admits the right under the statute, and bases his action on the ground that dower was virtually and . equitably assigned to the widow in the whole property by
Damages for the detention of dower were not recovered .at common law, but only by the statute of Merton; and after that statute the rule was settled by the courts of com.mon law, that if the widow died before the damages for deTention were assessed, they could not be recovered. 2 Bac. Abr. 395, title Dower, I; Park on Dower 309. Nor could -damages be recovered, if the widow died before dower was .assigned; nor if she accepted the dower assigned by the .heir, or by proceedings in chancery. Park 310; Co. Litt. 33 a. But, in such cases, the value of the dower for the time it was wrongfully detained, may be recovered in equity. Curtis v. Curtis, 2 Bro. C. C. 629, 632; Dormer v. Fortescue, 3 Atk. 130; Park on Dower 332; Johnson v. Thomas, 3 Paige 377; 2 Bac. Abr. 396, Dower, I; Viner’s Abr., Dower S a, § 20; Hamilton v. Ld. Mohun, 1 P. W. 118.
The courts of law in assessing damages for the-detention, allow, as reprises, for the occupation by the widow. In Walker v. Nevil, Leon. 56, quoted in 2 Bac. Abr., Dower I, p. 394, the court reversed the judgment, because the'damages
And a court of equity, in such case, .will not- give damages beyond the amount established by -law, especially when such ¡damages are inequitable. But, on the other hand, where a widow comes into this court to claim the value of her dower, in a case where such value could-not be recovered at law, she will be required to-do equity, and will be allowed only to recover the value of the dower detained, that is the value of o.ne third of the whole estate, dediicting the value of the part occupied by her. This may be - done by allowing her to .occupy the mansion-house free of rent, and by. giving her out of the .residue of the estate so much ;as will' make her part one third of -the value of the whole, if .anything be required for. that end. On both -grounds -the report of the master', must be sustained, and this, exception, .overruled. The claim, of-the widow is’ unjust and inequitable. , The ex
The next exception to the account is that of Samuel O. McLaughlin and wife ; it is to the charge of $150, and interest on it for one years’ rent of No. 147, and the upper part-of No. 149, Green street. The only evidence as to this is-that of Samuel C. McLaughlin himself; he testifies that he-had rented of his father both premises for the year ending May 1st, 1861, at the rent of $300; that he continued to-occupy them the next year without any new bargain. This-usually would be a continuance of the former tenancy at tho-same rent, and I see nothing in this caso to prevent the application of this rule. I am of opinion that this exception-must be sustained.
The next exception is by the complainant as executrix and legatee of the widow, to the master’s report on the value of her dower.
The report finds that she is not entitled to have a gross sum in lieu of her dower in the Green street lot, which was not sold until after her death. The report is founded on the decision of Chancellor Green, in Mudford v. Hiers, 2 Beasley 13, and is fully sustained by that decision; and I concur entirely with the late Chancellor in the principles upon which that conclusion is based.
Another exception to that report is, to the principle upon which the master estimated the value of the life of the widow, and the gross value of her dower. It was held in the case of Mulford v. Hiers, above referred to, that when a dowress had, in a partition case, consented to take a gross sum in lieu of her dower, the right to have such sum estimated in proportion to the value of her life at the time of consent, became a vested right, and was not lost by her death before the value was ascertained and settled. That principle is admitted by the master, and is not disputed by the counsel for the heirs. But as she died two months after the election, and before the making of the report, the master
The errors pointed out in the seventh exception of the" complainant to the master’s account being mere mistakes in carrying forward figures in the computation, and being admitted by the defendants, will of course be corrected. ’
Thó matters contained in both reports must be referred-back to the master to be corrected on the principles above stated.