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Phelps v. Phelps

27 N.Y.S. 620 Court N.Y. Gen. Term Decision date 1894-02-12 English

Delivered by PRATT, J.

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p. 620
(75 Hun, 577.)
PHELPS v. PHELPS et al.
(Supreme Court, General Term, Second Department.
February 12, 1894.)

Headnote

Dower—Action to Determine Inchoate Right.
A wife may sue to have her inchoate right of dower declared in property purchased by the husband, the title to which was taken In the name of a third person for the purpose of depriving plaintiff of dower.
p. 621
Appeal from special term, Kings county.
Action by Susan A. Phelps against John W. Phelps and another to protect plaintiff’s inchoate right of dower in certain real property bought by defendant, who was plaintiff’s husband, with his own money, but the record title of which he placed in another for the alleged purpose of defrauding plaintiff. From an interlocutory judgment overruling separate demurrers to the complaint, defendants appeal. Affirmed.
Argued before DYKMAN, PRATT, and CULLEN, JJ.
Albert G-. McDonald, for appellants.
In considering whether the complaint in this action does state facts sufficient to constitute a cause of action, we must first have in mind what dower is, according to the New York statute. The Revised Statutes say: “A widow shall be endowed of the third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage.” This is the only provision of our laws concerning dower which is pertinent to the present discussion. What provision there is concerning dower in certain equitable estates has no relevancy. In re Ransom, 17 Fed. 331 .
The title to dower is inchoate on marriage and seisin attaching on the land when the seisin and the marriage relation are concurrent, vesting at the moment of the grant to the husband. Kursheedt v. Savings Inst., 118 N. Y. 364 , 23 N. E. 473 ; Mills v. Van Voorhies, 20 N. Y. 412 ; Simar v. Canaday, 53 N. Y. 298 . The case of Youngs v. Carter, 10 Hun, at page 199, is said to be not in conflict with Holmes v. Holmes, 3 Paige, 363, “which related only to the disposition of personal property, in which the wife can have no such interest as she has in her husband’s real estate.”
Dailey, Bell & Crane, (James D. Bell, of counsel,) for respondent.
The novelty of the present action, if indeed it be without precedent, is no bar to its maintenance. Youngs v. Carter, 10 Hun, 194 , 197.
An action may be maintained in the lifetime of a husband to preserve and protect the wife’s inchoate right of dower in his lands, and such right is a valuable and subsisting interest which will be protected by the courts. Simar v. Canaday, 53 N. Y. 298 ; Kursheedt v. Savings Inst., 118 N. Y. 364 , 23 N. E. 473 ; Insurance Co. v. Shipman, 119 N. Y. 330 , 24 N. E. 177 ; Youngs v. Carter, 10 Hun, 194 , affirming 50 How. Pr. 410 .
The fact that the paper title is not alleged to have been in the defendant Phelps is not a bar to the maintenance of this action. Hawley v. James, 5 Paige, 318, 463; Church v. Church, 3 Sandf. Ch. 434 ; Gilson v. Hutchinson, 120 Mass. 27 ; Crecelius v. Horst, 11 Mo. App. 304 ; Rabbitt v. Gaither, 67 Md. 94 , 8 Atl. 744 ; Bisp. Eq. p. 550; Douglas v. Douglas, 11 Hun, 406 ; Munroe v. Crouse, (Sup.) 12 N. Y. Supp. 815 ; Babcock v. Babcock, 53 How. Pr. 97 ; Pomeroy v. Pomeroy, 54 How. Pr. 228 ; Johnston v. Spicer, 107 N. Y. 185 , 191, 13 N. E. 753 .

This case involves the question whether a wife can maintain an action to have inchoate dower declared in property not standing in her husband’s name, and to which he never had the legal title. It is raised by a demurrer to the complaint. Leaving out an allegation in the complaint that the defendant holds an agreement in writing, signed by a person holding the legal title by deed, that it is held for the benefit of defendant, I think, under the law in this state, the demurrer was well pleaded. The complaint fails to state in full what the agreement is, or that it would give the defendant a right to have a conveyance made to himself of the fee. The respondent has quoted a large number of cases, none

p. 622
of which clearly hold that a wife is dowable in property so held, except cases in other states where there is a statute giving dower in equitable estate held by the husband. While there is no direct authority in favor of respondent’s contention, yet there are expressions which seem to lean in that direction, and an opinion of the court of last resort can only settle the question. The case is on the border line, and, in the absence of any direct authority upon either side, we have concluded to affirm the decision below, as being the most equitable view of matters. Affirmed, with costs. All concur.

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