Rathbun v. Miller

6 Johns. 281 | N.Y. Sup. Ct. | 1810

Per Curiam.

This motion, to set aside the admeasurement of dower, is made under the act of the 29th sess. c. 168. by which this court is authorized to review the proceedings had under the order of the surrogate, and to do therein what shall be just.' The causes of" complaint, stated in the notice to the widow, are, 1. That the proceedings were ex parte, and without any notice of the application to the surrogate; 2. That the admeasurement was unequal and unjust. The appeal is made' in due time, and upon the requisite notice; and, without questioning the merits of the admeasurement, the court' are of opinion that the proceedings were irregular, for want of notice to the adverse party of the intended application to the surrogate. Here was a judicial discretion to be exercised in the appointment of “ three disinterested freeholders, to admeasure,” <&c. and, according to..,the¡ doctrine in ¡the' case of Bouten v. Neilson, (3 Johns. Rep. 474.) notice was requisite. The adverse party was not only entitled to be heard against the appointment of the admeasurers; but he was entitled to show that the widow had already her dower set off, or assigned to her, within 40 days after the decease of husband; and if that had been shown to the satisfaction of the surrogate, he ought not to have proceeded.

What shall be deemed a reasonable notice to the adverse party, of the time and place of application, is not defined in the act. Perhaps 30 days would be sufficient. On the ground, then, of want of notice, the motion to set aside the proceedings is granted; and the widow must apply, de novo, to the surrogate.

, Motion granted. ■