Majority
p. 258SUPREME COURT. James Campbell, et al., agt. Elizabeth F. Erving, et al. Special Term, Chambers, New York, May 28, 1872.
Headnote
A widow who. elects to take and accepts a gross sum from surplus moneys paid into court under a judgment of foreclosure, in lieu of her dower right, is entitled to the full sum accepted, free from.any costs or commissions on a reference in obtaining it. .This was a motion to confirm a referee’s report, upon an application for surplus moneys arising from a sale under a judgment of foreclosure.
There were but two claimants, the widow and the heirs' of the owner of the equity of redemption.
The widow elected to accept a gross sum in satisfaction of her dower right, which was computed by the referee upon the amount paid into court, by the referee under whose direction the sale was made, and the amount so found due was directed to be paid to her, free of all charges, costs, &c.
The motion was opposed upon the ground that the widow’s share was charegable pro rata, with the-legal commissions and charges of the city chamberlain for receiving and paying out said moneys, and with the referee’s fees and the costs of proceedings upon this application, and that the same should be "deducted from the-amount so reported due her.
Wakeman & Latting, for widow.
Richd. L. H. Finch, for guardian, ad litem, and others.
held, that the widow’s dower right was not chargeable with these sums, and that there could be no reduction for the same from the amount so reported due her, and granted the motion, to confirm the report.