| N.Y. Sup. Ct. | Jul 15, 1833
By the Court,
The Revised Statutes, vol. 2, p. 303, § 2, have substituted the action of ejectment to recover the widow’s dower, instead of the old remedy—by writ of dower ; and it is supposed by the counsel for the defendant that the nature and situation of her interest or estate has been changed ; that she is now a tenant in common with the heir or alienee of the husband, immediately on the death of the husband, possessing a vested interest and right of entry, whereas at common law she has none until the assignment, and till then her right existed only in action. 7 Johns. R. 249. The act declaring the widow’s dower, 1 R. S. 740, § 1, is substantially a copy of the old law, and the only ground for presuming any change in the condition of the estate before assignment, from what it has heretofore been held to be, is the language of some of the provisions, prescribing the new remedy by ejectment. The 3d, 10th and 22d sections are referred to as sustaining this view, but it will be seen, on an examination of them, and indeed of all the other sections in that title of the statutes, that they are intended only to regulate the forms and proceedings in the new action of ejectment, from the commencement to its termination, and not to alter or modify any right to or interest in real estate, which has heretofore existed. That the remedy may seem inappropriate, according to principles and the practice as heretofore understood, is true; but that will not justify us in subjecting the rights, interests or estates of parties, which constitute the subject matter of the suit, to a conformity with the literal provisions of the statute prescribing the remedy. That would be reversing the rule of the common law, and, instead of applying a remedy to a right, would be adjusting the right to the remedy. The provision, therefore, sec. 27, p. 307, which is declaratory of the law as it has always existed, which requires a tenant in common, in this action against his co-tenant, to prove on the
The- offer to give the widow her dower when demand was made, constituted no bar to the action. Before the revised statutes, a plea of tender to the demandant, in a case of this kind, did not preclude the recovery; its only effect was to restrain it to one third of the value of the premises at the time of the alienation. She might take judgment according to the tender. 2 Johns. R. 484. 1 Cowen, 188. When the action was brought to recover dower in premises of which the husband died seised, the plea of tender only precluded the demandant from recovering damages for its detention.
By the Revised Statutes, vol. 2, p. 306, § 22, the defendant, in an action of ejectment to recover dower, may plead the general issue in the form there stated, and by § 23, may give in evidence any matter which, if pleaded on the former action of dower, would bar the plaintiff. Under this section, if it were now, as formerly, necessary for the security of the defendant’s rights in a case of this kind, to shew upon the trial the alienation of the husband in his lifetime, and tender according tovalué at that time, in order to limit the extent of the rebovery, evidence of the facts might be given under the plea of the general issue, within the spirit of this provision. It would not be necessary, if admissible, to plead them. The judgment, however, would be the same as when the matter was pleaded, and which was for the plaintiff, notwithstanding the tender.
But it is not now essential or even proper to go into evidence on the trial, in order to determine whether the husband aliened during his lifetime or not, as that fact, and consequently a tender of one third of the value of the premises at that time, are wholly immaterial; for if. will be seen, from the
The 2 R. S. 490, § 13, provides that the commissioners appointed to admeasure dower shall take into view any permanent improvements made upon the premises out of which dower has been or is sought to be recovered, since the alienation thereof by the husband. The defendant, therefore, now can avail himself of proof before the commissioners, to reduce the dower to the value of the land at the time of alienation, which it was formerly necessary to make, or the fact may be established by plea, before judgment. The action now tries only the right to dower; the extent or measure of it is settled by the commissioners.
Before the revised statutes, the demandant in dower, in a case like the present, recovered no costs. Neither did she, where her husband died seised, upon the plea of tender ; but in both cases she recovered judgment for her dower. Bull. N. P. 116. 2 Johns. R. 484. The 2 R. S. 613, § 3, gives costs to the plaintiff in these cases, when judgment is recovered ; and it is contended that effect should be given to the plea of tender to defeat the action, in order to avoid costs. We do not feel at liberty to alter the law for this reason, however plausible. The legislature have seen fit to give costs in the case, and it is not for courts to endeavor to evade the statute by the application of new principles or proceedings. Nor are we satisfied that the heir or alienee is necessarily exposed to the hardship of paying a bill of costs, where the right to dower is conceded. The assignment of dower by metes and bounds, even by parol, is good and valid, and constitutes a bar to the action, and they have the whole of the quaranline of the widow within which to make such assignment. If they concede the right, and neglect during this time to make the assignment, (and it is-4heir duty, and not the duty of the widow to make it, for her right-of entry does not exist until after assignment,) and a suit is brought, if subjected to costs or damages, it is their own fault, and not the fault of the law, for they should assign the dower. 2 Black.
Judgment for plaintiff.