Safford v. Safford

7 Paige Ch. 259 | New York Court of Chancery | 1838

The Chancellor.

The master’s report as to the interest of the several parties in the premises is correct, except as to the supposed right of dower of the widow of John Safford in the interests of her infant children. To entitle the widow to dower, the husband must in his lifetime have been seized of a present estate or interest in possession in the oremises. And his widow’s right of dower cannot extend to any part of the premises as to which such present estate, or interest, did not vest in possession during the coverture. And where the decedent takes his estate by descent from an ancestor whose widow is entitled to dower in such estate, and which she afterwards claims and has set off to her, the decedent’s present estate in that part of the property is considered as suspended, by relation, from the time of the descent cast upon him ; so that if he dies in the lifetime of such dovveress, his own widow can never be entitled to dower in that third of the estate, even after the death of the first dovveress. The maxim dos de dote peti non debet, applies with full force to such a case. (Bustard’s Case, 4 Coke’s Rep. 122 b. Coke on Litt. 316 Hale’s note.) This principle appears to have been entirely overlooked by the master and by the guardian ad litem of the infant defendants. But in a case of infants where the whole facts appear upon the face of the master’s report upon the title, the error may be corrected by the court, although there has been no formal exception filed, by the guardian ad litem, to the report.

The decree must therefore declare that G. Safford is only entitled to dower in two thirds of the shares or interests of her infant children; and is not entitled to any dower, either present or future, in the other third thereof, as to which their grandmother is to be considered as tenant in dower. And the decree must direct a sale and distribution accordingly.