Kain v. Fisher — 6 N.Y. 597

Majority

p. 545

Kain v. Fisher.

Headnote

JLsseis. — Widow’s exemption

Growing grass and fruits are not assets, but descend to the heir The widow of a man who, at the time of his death, kept a house and servants, is entitled to the exemption given by the act of 1842, though he leaves no children.

Appeal from the general term of the Supreme Court, in the second district, where judgment had been entered upon a statement of facts agreed upon by the parties, pursuant to § 372 of the code.

The plaintiff was a brother, and one of the heirs-at-law of Francis Kain, late of Westchester county, deceased ; the defendant was the executor of the widow.

Francis Kain died in June 1844, without children, but leaving a widow, a mother, a brother (the plaintiff), and the children of a deceased brother. At the time of his death, there were fruits and grass growing upon lands, which the widow sold, after his decease, and received therefor the sum of $450. Afterwards, the mother died, having devised all *her estate, real and personal, ^ to the plaintiff; the widow subsequently died, ■- and the defendant was her executor. The plaintiff claimed the proceeds of the fruit and grass; the defendant insisted that the widow was entitled to one-third part thereof, as dower.

At the time of his decease, the family of Francis Kain consisted of his wife, a female relative, whom he had supported for years, a housekeeper, and four servants. The appraisers set off to the widow, seven bedsteads and

p. 546

sets of bed furniture. The plaintiff denied her right to more than one of them.

The court at general term gave judgment for the ' plaintiff for $360, being two-thirds of the amount received for the fruit and grass, and in favor of the defendant as to the residue of the claim; whereupon, the plaintiff took this appeal.

English, for the appellant.

Lyon, for the respondent.

— The grass and fruits, growing at the intestate’s country-seat, were not assets (2 R S. 82, § 6, sub. 6), but descended to the heir with the land. (4 Bac. Abr. Executors and Administrators, H. 3.) If the lands on which the grass and fruits in question were growing, at the time of the husband’s death, had been assigned to the widow for her dower, she would thereupon have become entitled to the grass' and fruits growing on the lands. It has been so held, even in the case of annual planted crops (2 Inst. 81; Dyer 316, pi. 2); a case much stronger against the right of the widow than that of grass and fruit. As, however, it does not appear by this case, that the lands had been assigned to the widow for her dower, we are not able to see how she can have any right to their proceeds.^[1]

■ There can be no doubt that Francis Rain left a family, * kqq i within *the meaning of the revised statutes, part 2, J c. 6, tit. 3, art. 1, § 9. It appears clearly from § 10, which declares, that if there be a widow and 'no minor child, the articles exempted shall be her property. Under § 2, c. 157, Laws of 1842, the appraisers are directed to inventory and set apart for the use of the widow, in case a widow alone is left, necessary household furniture to the

1 See Bradner v. Faulkner, 34 N. Y. 347 .

p. 547

value of not more than $150, in the discretion of the executors, in addition to the articles exempted under the sections of the revised statutes already cited. The six bedsteads, with their bed furniture, of the appropriation of which to the widow’s use the plaintiff complains, may have been assigned to her, under the last section, for aught that appears in the case: we are, therefore, not called upon to consider the plaintiff’s right under § 9.

The judgment below must be, therefore, modified, so as to give judgment to the plaintiff for the whole proceeds of the fruits and grass, $450, with costs.

Judgment accordingly.