Ward v. Kilts

12 Wend. 137 | N.Y. Sup. Ct. | 1834

By the Court,

Savage, Ch. J.

I will consider the questions raised at the circuit in the order there presented. 1. Should the defendants have had notice of the proceedings before the surrogate ? The statute directs, 2 R. S. 488, that the widow whose dower shall not have been assigned to her within 40 days after the decease of her husband, may apply by petition for the admeasurement of her dower; a copy of the petition, with notice of the time and place when and where it will be presented, shall be served at least 20 days previous to its presentation, upon the heirs of her husband; or if they are not the owners, then upon the owners of such lands claiming a freehold estate therein — not'Upon a tenant for years, or as in this case, a tenant for a single year. But it may be said that by the 17th section, p. 491, the admeasurement is conclusive as to its location and extent on the parties who applied for it, and on all parties to whom notice shall have been given as before directed, and upon those only. This section speaks of the notice before directed, and that notice is necessary only upon the owners claiming the freehold ; it follows that notice upon the owner of the freehold, is notice to all holding under such owner. There is a good reason why the owner should have notice, because the widow claims to take orie third of his farm ; and he is interested in protecting his property and taking care that she does not receive a greater proportion than she is entitled to, and that it shall be assigned where it shall best accommodate the parties during the continuance of a freehold estate. But if the owners are agreed where the admeasurement shall be made, the mere cropper or tenant for one or more years ought not to interfere, and procure a different arrangement for his benefit. The statute does not recognize any third party, or subordinate interest* The widow and the owners of the freehold are the only parties to the admeasurement. If the tenants of the owners are incommoded by the admeasurement, they must seek their remedy against their landlords. It is clear they are not considered parties having a right to be heard upon the location of the widow’s dower.

2. The preceding observations furnish an answer also to the objection to the declaration. The action is brought after ad-measurement, and in such cases the declaration is the same as in the ordinary action of ejectment. 9 Wendell, 307, 310.

3. As to the right of dower being barred by lapse of time» that point has been settled in Sayer v. Wisner, 8 Wendell, 661, which decides the revised statutes creating the limitation to be prospective, and therefore not applicable here.

New trial denied.