The order and judgment appealed from should, therefore, be reversed with costs, the demurrer overruled, and leave given to the defendant to answer, upon payment of costs, within twenty days after notice of the order to be entered upon the remittitur herein.
1 See Mut. Life Ins. Co. v. Shipman, 119 N. Y. 324, in which Ruger, Ch. J., says: "Although this right [that of a widow to her dower], while unassigned, did not give her a legal estate in the lands, it is now well settled that it was a legal interest and constituted property which was capable in equity of being sold, transferred and mortgaged by the dowress, and liable to be reached by creditors in payment of her debts." - ED.
(c.) Dower consummate, - after "assignment."
2 New York, 245. - 1849.
Action for rent. Defendant had been a tenant of plaintiff's husband, and the premises having been set off to plaintiff as her dower he had attorned to her. Later the husband's administrator, under an order from the surrogate, had sold these premises for decedent's debts, including plaintiff's interest therein. The purchaser leased them to defendant, who now refuses to pay rent to plaintiff. Judgment for defendant. Plaintiff appeals.
Gardiner, J. - At the time of the proceedings before the surrogate, the plaintiff had a vested legal estate in the premises assigned to her, under the decree in chancery, absolute for her life unless her right and title was subject to and qualified by the 31st section of the act 2 R. S. 99. Com. Dig. tit. Dower, ch. 4, § 1; 1 R. S. 740, § 16; 4 Kent's Com. 69. This section provides that the conveyances executed to purchasers upon a sale by order of the surrogate, "shall be deemed to convey all the estate, right and interest in the premises of the testator or intestate at the time of his death, free and discharged from all claim for dower of the widow of said testator or intestate."
Before assignment the widow has no estate in the lands of her husband; her right is a mere chose in action which cannot be sold upon execution at law. Until that time it is strictly a claim. Greenleaf's Cruise, vol. I., tit. Dower, ch. 3, and note. The ordinary signification of claim, is that of a right or title, actual or supposed, to a debt, privilege or other thing in the possession of another. Most persons distinguish readily enough between a claim for dower and the estate itself in the actual possession of the person entitled thereto. No one thinks of confounding a claim for possession, with possession in fact. Writers speak of possession, of the right of possession, and the mere right. Each has its distinct and appropriate meaning; they may exist in different individuals, although their union in the same person is necessary to a perfect title. A claim is the means by or through which the claimant obtains the possession or enjoyment of the thing sought. It is the means to an end, and not the end itself. It is true, that the word may sometimes stand for the subject claimed. And so may cause for effect. The distinction between the two is somewhat important, notwithstanding.
It may be granted that if Mrs. Lawrence, after assignment, had conveyed all her claim for dower to the premises in her possession, she would have transferred all her interest to the purchaser. And the same might be said of a person who owned his farm in fee simple. But in those cases, courts would seek for the intent of the parties in their situation and the state of the property, and modify the primary and popular signification of the term used by them, so as to give effect to the conveyance. Neither the parties nor their legal advisers would, I apprehend, speak of selling a claim, when they intended to dispose of a freehold estate in possession. The Legislature must be presumed to have used the word in question, in its ordinary and popular sense, unless there is something in the subject to which it is applied, or in other provisions of the act to indicate a different design. And first as to the subject. Dower is perhaps, of all others, the estate most favored in law and equity. 3 Brown's Ch. 264. It is distinctly recognized and protected in our statute, and a presumption of a change in the law to the prejudice of the widow is not to be indulged. Again, by the common law, although the title of the widow is consummate upon the death of the husband, she is not seised, but the heir; and she consequently claims through his seisin. Cruise's Dig. tit. Dower, ch. 3, § 1. But by assignment of dower, the seisin of the heir is defeated ab initio (Id. ch. 3, § 24) and the dowress is in of the seisin of her husband, as of the time when that seisin was first acquired. It is upon this principle that the widow can elect under which seisin she will hold, where lands have been sold after marriage and repurchased by the husband. Co. Litt. 588, 33, a., and note. For the same reason, she holds the lands discharged of all incumbrances created subsequent to the marriage, if the husband was then seised, because in the language of Cruise, "her title has relation to the time of the marriage, and to the seisin which her husband then had." Cruise's Dig. tit. Dower, tit. 6, ch. 2, § 34. Her estate is a continuation of the husband's, commencing at the time of the purchase, if the lands were acquired after marriage. Id. tit. 6, ch. 2, § 17; Co. Litt. supra.
By the 31st section above quoted, the surrogate's deed conveyed all the estate, right and interest of the husband at the time of his death. That interest was in fee a possession, subject to all incumbrances, the widow's claim for dower included. This estate descended to the heir, and he also could transfer a fee in possession before assignment to a purchaser. The object of the statute was to extinguish the claim for dower, while the heir was seised of the same estate, both in quantity and quality, that was in the ancestor at the time"of his death. It gives to the purchaser, Under the surrogate's order, just what the intestate had at his death and no more, with the exception of the discharge of dower.