The word purchase, which occurs in this paragraph,when used in contradistinction to descent, includes the obtaining of title by devise as well as by deed. But the whole reasoning of the passage quoted shows that the effect attributed to a purchase follows only when the land is conveyed by deed. The sole reason given for the distinction is, that a purchase takes effect in the lifetime of the vendor, and the purchaser becomes at once seised of a defeasible estate; while in case of a descent, the heir is never seised of the lands assigned for dower during the life of the widow, as her title relates back in all cases to the death of the husband. Now, in this respect, there is not the slightest difference between a descent subject to dower, and a devise subject either to dower or any other life-estate. In either case the freehold passes directly to the tenant of the life estate, upon the death of the ancestor or devisor, and neither the heir nor the devisee of the remainder can have any seisin until the death of such tenant.

The distinction is stated in terms perfectly accurate and precise by the Chancellor in the case of Dunham v. Osborn, 7 Paige, 634; but in the subsequent case of Cregier, 1 Barb. Ch. 598, he uses the word purchase as it is used by Lord Coke, and states the distinction as being between estates which came to the husband by descent, and those which came by purchase, subject to dower. This inaccuracy in the use of the word purchase, by both Lord Coke and Chancellor Walworth, is perfectly palpable; but as it has led to the bringing of so clear a case as the present to this court, it may be well to advert to and explain it. That it is this which has misled the counsel for the appellant is obvious, as he commences his citations in support of his doctrine with the Year Book (5 Edw. III., title Voucher, 249), which appears to be the very authority upon which Lord Coke based his distinction. None of the other authorities cited by the counsel have any tendency to support his position, and it is very clear that it is untenable. The precise question was decided by the Supreme Court of Massachusetts in the case of Eldridge v. Forrestal, 7 Mass. 253, and in Beekman v. Hudson, 20 Wend. 53, it was assumed as perfectly clear, that in such a case the widow was not entitled to dower.

There can be no pretense that the widow is entitled to the fund in question as personal estate, under the statute of distributions. The money is the product of the land taken, and must belong to the persons entitled to the land which it represents, and out of which it arose. Besides, the title had already vested in the heirs when the proceedings for extending the street were commenced, and if the widow had then no right to dower in the premises, she of course can have no right to the money even if it is to be considered as personal estate.

The judgment of the Supreme Court must be affirmed.

Phelps V. Phelps

143 New York, 197. - 1894

Gray, J.- This is an action, in equity, brought by a wife to establish and protect an inchoate right of dower in certain lands now held by, and in the name of, a third person; but which were paid for by the plaintiff's husband, and, also, to establish her dower right in the proceeds of the sale of certain other lands similarly purchased and held. Her complaint having been demurred to for insufficiency to state a cause of action, we must assume all its averments of material facts to be true. After alleging a marriage and the birth of children, she sets forth a separation between herself and her husband, caused by his neglect, wrong conduct and desertion. She alleges that since his desertion of her, with the intent and purpose of defrauding her of her dower rights in his real estate, her husband had purchased various pieces of land, and caused the title to be taken in the name of one Lewis, as a dummy in the transaction, under an agreement and arrangement with the said Lewis that the said defendant (meaning her husband), "should receive all the benefit of and have full control over said property, which agreement was in writing."

She alleges that her husband "retained and exercises full possession and control over the same," and that when he desired to dispose of any of the property, he would "under the agreement and arrangement with said Lewis present the deeds and papers to him, which said Lewis, under his agreement, was bound to execute;" that all of the property, with the exception of one piece, was thus disposed of by her husband "to bona fide purchasers, without notice of the dower interest of this plaintiff," and that her husband "received the full amount of the purchase money paid for the same, for his own use and benefit." She then proceeds to describe the piece remaining unsold, which she alleges to have been conveyed by Lewis, at the request of her husband, without consideration, to the defendant Goodwin, a partner of her husband, "who was to hold the same under the same agreement that said Lewis had with her husband," and as to this property the plaintiff charges her husband to be the real owner. She prays for a decree, which will adjudge, because of these transactions and their fraudulent purpose, that the proceeds received by her husband upon the sale of any of this property "are still real property and that this plaintiff has an inchoate right of dower in the same;" that her husband be ordered to pay one-third of these proceeds into court, there to be held and invested, etc., etc., and that as to the land held by Goodwin, it be adjudged to be subject to her inchoate right of dower, etc., etc.

With this as a sufficient summary of the material facts of her complaint, we are confronted with the pretended cause of action, for which I am unable to find any sufficient basis in our Revised Statutes; to which we must look for the authority for the claim of a wife to be entitled to dower in lands. To entitle the wife to dower the husband must be seised, either in fact or in law, of a present freehold in the premises, as well as of an estate of inheritance. That proposition follows from the language of the section in the Revised Statutes, that "a widow shall be endowed of the third part of all the lands, whereof her husband was seised of an estate of inheritance at any time during marriage."