Majority
p. 533In the matter of Elizabeth Cooper, Widow, on a claim of dower, &c. contended, that there was sufficient notice in this case, and cited the case of Watkins, ( 9 Johns. Rep. 246 .)
Headnote
&gCoftn™pI aPl?0l“*" measurers of aoroer, must be given ¡to the parties inte» rested ín^ the wise ’the probe'set’ísid^ás n™Jísfsareaj¡°n )h?g p““pt0’Sg0r 1,131SUFFERS moved to set aside the proceedings before the Surrogate of Rockland county, as to the admeasurement °f dower, under the acts concerning dower, and the act supplementary thereto, (l N. R. L. 56. 60- 61. sess. 10. ch. 168.)
Notice of the motion had been served on the widow, which stated the several grounds on which the application was to be made ; some of these were, that the proceedings before the Surrogate were ex parte, without any legal notice to the parties interested in the land, of the application to the surrogate ; that no citation was issued by the Surrogate to the parties interested, to show cause against the appointment of admeasurers of dower.
The counsel cited Rathbun v. Miller, ( 6 Johns. Rep. 282 .) It appeared from the affidavits read, that the parties were verbally informed, on the 28th of June, by the person employed by the widow to obtain her dower, that he should apply to the Surrogate on the 2d of July, for the appointment of commissioners to assign her dower; but none of the parties appeared before the Surrogate, who, on that-day, without any citation or further notice, appointed admeasurers.
Drake, contra,
The notice in this case was not sufficient. The application to the Surrogate is a legal proceeding, affecting the rights of the patties interested in the land, who ought, therefore, to be duly apprised of it. On general principle, the notice ought to be in writing, and the want of it is a fatal objection to these proceedings. The motion must be granted, but without costs, as it is not a case within the statute relative to costs.
Motion granted accordingly.