90 N.Y.S. 481 | N.Y. App. Div. | 1904
I am of opinion that the defendant’s right of dower cannot be reached by a creditor’s bill. In Clifford v. Kampfe (147 N. Y. 383, 385) the court, per Haight, J., s'ay: “ Dower accrues to the widow and not to the wife, and until she becomes a widow, her right is inchoate and contingent. Her claim can only become effective on the death of her husband and her survival. Being inchoate and contingent, her interest does not amount to an estate or title, and yet she has an interest which attaches to the land as soon as there is a concurrence of marriage and seizin. (4 Kent’s Com. 50.) ” In Elmendorf v. Lockwood (57 N. Y. 322, 324) the court, per Earl, C., say: “ During the lifetime of the husband the wife has an inchoate right of dower in all the lands of which he becomes seized. This right is not an estate in the land, but is a mere contingent interest which attaches to the land as soon as there is the concurrence of
It is true that the courts have held that this inchoate right is a “ valuable, subsisting, separate and distinct interest,” but this has been to afford protection and preservation. (Clifford v. Kampfe, supra, and authorities cited ; Simar v. Canaday, 53 N. Y. 298,305.) But I am cited to no precedent, and I find none, that adjudges that such inchoate right is subject to a creditor’s suit. Nor do I see any cogent reason why this court should make a precedent which recognizes this interest as subject to such an action. A mere contingent right which is but a bare possibility is not subject to a creditor’s action. Smith v. Kearney (2 Barb. Oh. 533) is applicable. A paragraph of the head note says: “ The contingent right which a person has in the estate of another arising from the chance that he may be entitled to a share in such estate, as one of the next of kin of the owner thereof, should he outlive him, is only a bare possibility, unaccompanied by any interest during the life of such owner, and it cannot be reached by a creditor’s bill.” I have noted (supra) that the Supreme Court of the United States in Randall v. Kreiger (supra) and the Court of Appeals in Wait v. Wait (supra) have
The learned counsel for the appellant insists that the right is subject to this action for the reason that it is a chose in action, and,'therefore, within the purview of sections 1871 and 1873 of the Code of . Civil Procedure. He chiefly relies upon an expression in the opinion of Roger, Ch. J., in Witthaus v. Schack (105 N. Y. 332) which is as follows: “ The settled theory of the law as to the nature of an inchoate right of dower, is that it is not an estate or interest in land at all, but is a contingent claim arising not out of contract, but as an institution of law, constituting a mere chose in action incapable of transfer by grant or conveyance, but susceptible only during its inchoate • state, of extinguishment.” I think that the learned judge by this expression did not intend to define this inchoate right as a chose in action, but simply used it cwrrente calamo as a descriptive term. Indeed, in the same paragraph of that opinion, he quotes with approval from the opinion of Gardiner, J., in Moore v. Mayor,etc., of New York (8 N. Y. 110): “ Before assignment of dower, the widow has no estate, but a mere right in action, or claim which cannot be sold on execution. * * * If this is the true character of the right of the widow prior to the assignment, that of a wife must be a right to a claim for dower, contingent upon her surviving her husband. Such a possibility may be released, but it is not, it is believed, the subject of grant or assignment, nor is it in any sense an interest in real estate.” The learned judge thus fully recognizes that the right of a wife is but a contingent right — a possibility, and it is not to be credited that he intended to place a mere contingent right, a mere possibility, among dioses in action, and in the same category with the right of a widow before assignment, which right he recognizes as a chose in action.
The term “ chose in action ” as defined by courts and law writers implies a right to possession which may be demanded by action. (Gillet v. Fairchild, 4 Den. 80 ; 2 Williams on Exrs. [R. & T. 7th Am. ed.] 1; Winf. Words & Phr. 105, citing Ramsey v. Gould, 57 Barb. 398, 408.) In Streever v. Birch (62 Hun, 298,302) the court say: “ Then, what are things in action or choses in action ? £ Rights
In Hammond v. Pennock (61 N. Y. 145, 158), Dwight, C., says: “ It is an elementary rule of law that a wife has no estate in the land ; nor any interest in real estate ; nor property of which value can be predicated. (Moore v. Mayor, etc., of New York, 8 N. Y. 110.) She has not even a chose in action, and cannot protect the land in any way from waste and deterioration either by her husband or his alienee. Her interest is a mere incident to that of her husband; whatever may defeat that ab initio, destroys her claim. (Tudor’s Cas. 44 ;
The judgment should be affirmed, with costs.
All concurred.
Interlocutory judgment affirmed, with costs.
Tud. Cas. R. P. 44.— [Rep.