The surplus would represent in part the mortgaged premises. See Elmendorf v. Lockwood, 57 N. Y. 322.
We think the authorities require a reversal of the judgment.1
(b.) Dower consummate,- before "assignment."
87 New York, 153. - 1881.
Action by a receiver in proceedings supplementary to execution to procure (among other things) the admeasurement of the dower of a widow (the judgment debtor) in lands of which her husband died seised.
Danforth, J. - The appellant now argues that the action is in the nature of a creditor's suit. If we yielded to this view it would lead to a dismissal of the appeal, for in such an action the judgment measures the matter in controversy. It is less than $500, and the appeal has been taken as of right and not by allowance of the Supreme Court. Code, § 191, sub. 3. It is, however, clearly a case seeking admeasurement of the widow's dower and partition of the lands described; thus affecting the title to real property or an interest therein, and, therefore, not within the provisions of the code referred to. The court below held that plaintiff's position did not enable him to maintain an action for partition, and this is now conceded by the appellant's counsel. One other ground of action remains, and we are of opinion that the complaint does contain facts sufficient for the admeasurement of the dower of the defendant. The common law secured to the widow dower for her sustenance and the sustenance and education of her children. Co. Litt. 30 b. But, although in modern times the right has been enlarged, and is confirmed by statute, the humane object of its allowance may be defeated by her improvidence, and the right itself subjected to the claims of creditors. This was held in Tompkins v. Fonda, 4 Paige, 448, where the only question presented was whether a widow's right of dower which had never been demanded or assigned could be reached by the aid of a court of equity after the return of an execution unsatisfied.
1 See also Marvin v. Clark, 46 N. Y. 571, and Wheeler v. Kirtland, 27 N. J. Eq. 534, reported. infra, p. 69S. In Moore v. City of New York, 8 N. Y. no, it is held that a fee taken by right of eminent domain is vested in the city free and clear of the inchoate right of dower. Gardiner, ]., says: "Such a possibility [an inchoate right of dower] 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." So, in Barbour v. Barbour, 46 Me. 9, it is held that an inchoate right of dower is subject to be modified, charged, or even abolished by legislative enactment. The case of Moore v. New York, supra, has been distinguished and limited in subsequent New York cases. See, in particular, Simar v. Canaday, 53 N. Y. 298, and M. I.. I. Co, v. Shipment, 119 N. Y. 324, but an inchoate right of dower is nowhere held to be an estate in the land. - En.
In that case the court required the defendant to assign to the receiver, for the purpose of the suit, her right of dower in certain premises, and he was authorized to proceed in her name for the recovery and assignment of it. After that, the receiver was, by the terms of the decree, to be let into possession of the lands assigned, and to receive the rents and profits until the further order of the court. This case was carefully considered and although frequently cited, Elmendorf v. Lockwood, 57 N. Y. 322; Marvin v. Smith, 46 Id. 574; Stewart v. McMartin, 5 Barb. 438; Moak v. Coates, 33 Id, 498; The Chautauqua County Bank v. White, 6 Id. 596, has met with no disapproval. In Stewart v. McMartin, supra, a similar decree was made, and while it was denied in Moak v. Coates, supra, it was upon the ground that no assignment of the widow's interest had been made to the receiver. Whether that was well put, needs no consideration, because in the case before us the widow, by direction of the judge, conveyed her right to the plaintiff. The other cases sustained the general doctrine, and it must now be deemed settled, that, upon the death of her husband, a widow has an absolute right to dower in the lands of which he had been seised, and that this right or interest, although resting in action, is liable in equity for her debts. In the cases above cited, Tompkins v. Fonda, and Stewart v. McMartin, the action for its admeasurement was required to be brought in the widow's name, but since the code, that cannot be necessary. The plaintiff takes as the assignee of a chose in action, Tompkins v. Fonda, ante, and must sue therefore in his own name, § 111, Old Code; § 449, New Code. This was so held in Indiana under a code of practice similar to our own, Strong v. Clem, 12 Ind. 37; Jackson v. Aspell, 20 Johns. 410, and other like cases cited by the respondent show, not that the assignment by the widow of her right of dower is inalienable, but only that it could not be so aliened as to enable the grantee to bring an action in his own name.
This was no doubt the rule at common law, but the code changed it. In Strong v. Clem, supra, the court held, first that the dower interest accruing to the widow in the real estate of her deceased husband was, although unmeasured, assignable as a right in action; and, second, that under the code of practice in that State, it might be enforced in the name of the assignee. Such is the rule in equity, as applied to all rights in action, 2 Story's Eq. Jur. §§ 1040 - 1055; and that a claim for dower is within that rule is shown by the case of Potter v. Everitt, 7 Ir. Eq. Cas. 152. The action was by the purchaser of a widow's right of dower before assignment, against the widow and the deceased husband's heirs-at-law, to compel them to allot the dower and afterwards convey the land so allotted. The plaintiff obtained the relief sought. Both upon principle and authority, therefore, we must hold that the widow's right or claim of dower is property; that, like every other species of property it may be reached and applied to the payment of her debts; and this principle once established, the power of the Supreme Court to carry it into effect cannot be doubted. Whatever interest or right the defendant had, accrued prior to the recovery of judgment, and she was at that time, and at the time of the appointment of the plaintiff as receiver, entitled to have dower assigned to her. The plaintiff not only complied with the conditions made necessary by statute, New Code, § 2468, before the property of the judgment debtor should vest in him; but he took, by order of the judge, an assignment of it from the plaintiff. Thus, by compliance with statutory provisions and by the act of the defendant in pursuance of a judicial mandate, he became entitled to all her property, whether real estate or rights in action. But this avails nothing unless he can make his title effectual and reduce the property to possession for the purpose of his appointment. Upon the facts stated in the complaint, and conceded to be true, we think he is entitled to reach that now in question, and for that purpose may have the dower admeasured and applied according to the prayer of the complaint..