41 N.J. Eq. 427 | New York Court of Chancery | 1886
The only question in dispute in this case is whether a widow, who remains in the house of her husband after his death until dower is assigned, is, while so in possession, subject to the duties of a tenant for life ; that is, bound to keep down the interest on encumbrances, to pay ordinary taxes, and to make necessary annual repairs ? It is well settled that these burdens must be borne by a life tenant. 1 Washb. Real Prop. p. 96 §§ 25, 25 a, p. 115 § 31; 1 Story’s Eq. Jur. § 488. And a tenant in dower, like other life tenants, is subject to them. 4 Kent’s Com. 75; 2 Scrib. on Dow. 733. This obligation has been extended in this state so as to make it the duty of a person entitled to the interest of a fund for life to pay the tax assessed against the principal of the fund. Holcombe v. Holcombe, 12 C. E. Gr. 473; S. C. on appeal, 2 Stew. Eq. 597. The reason assigned for imposing this duty on the person entitled to the interest, is stated as follows by Justice Van Syckel: “So long as the life tenant enjoys the entire produce of the fund, he should be required to keep down the taxes on it; otherwise the fund itself must become impaired, and the entire burden be thrown upon those who take the fund at his death.”
The obligation of a widow to perform the duties of a life tenant, while in possession under the statute, is put upon the ground that the right given to her by the statute, is, in substance, a life estate. Unless this position can be maintained, it is admitted, she ought not to be held liable to the duties of a life tenant. Other tenants, such as tenants for years, from year to year, and at will, are not, in the absence of a contract to that effect, subject to them. They rest alone on tenants for life. The widow’s right is given by these words:
*429 “ That until dower be assigned to her, it shall be lawful for the widow to remain in, and to hold and enjoy the mansion-house of her husband and the messuage or plantation thereto belonging, without being liable to pay any rent for the same.” Rev. p. 380 § ¡2.
The purpose of this provision, as it seems to me, is to confer a right of possession similar to an estate or tenancy at will, rather than to create a life estate. The language employed is manifestly much more appropriate to raise a right of that kind than for the creation of a life estate. The first and most important provision of the statute, it will be observed, is that the widow can only remain in possession until her dower is assigned. When that is done her estate ceases and her right is gone. Either she or the heir may have dower assigned. She may also surrender her possession at any time. So that the duration of her right depends entirely upon the will of herself and the heir, and like other tenants at will, her right may be determined, at any time, either at the will of the person in possession or the person entitled to the reversion. It is true her occupation may be lengthened out to the end of her life, and she may thus enjoy what is equivalent to a life estate, but her possession can only have that duration when such is the joint will of herself and the heir, and such may be the extent of the duration of a tenancy at will in any case where the parties to the demise so desire.
Judicial opinion is not entirely uniform as to the nature of the right given by this and similar statutes. Under a statute substantially similar to ours the supreme court of Illinois have held that a widow, while in possession, is bound to pay taxes and keep the premises in repair. Wheeler v. Dawson, 63 Ill. 54. They do not, however, place her liability on the ground that her right is an estate for life, but on the broader ground that it is equitable, inasmuch as she is entitled to the whole produce, that she should bear these burdens. The court say : “ Being entitled to use and occupy the homestead without accounting for the profits and gains made from it, no one would say that she should not, in justice and equity, pay the taxes and keep the premises in repair. We are aware of no principle of law or equity that would impose the duty on the heir to pay the taxes and keep up the re
This question has already been dealt with by this court. In Cronley v. Cronley, 13 Stew. Eq. 30, the chancellor held that a widow, while in possession, under this statute, of her husband’s homestead, was not bound to keep down the interest on a mortgage thereon. This adjudication, of course, settled the law of this court. In a previous case, decided orally, without argument, and without much consideration, and making a free application of the principle established by Holcombe v. Holcombe, that he who takes the benefits of property should bear its burdens, I held that a widow was bound, while in possession, to keep down the charges on the 1 and which she enjoyed. A careful examination of the question, with the aid of a full argument, has satisfied' me that that conclusion is erroneous, and that it should be held, both according to principle and precedent, that she is not subject to that duty.