Dyer v. Dyer

The plaintiff moves to confirm a referee’s report. The action was brought by the plaintiff as the widow and devisee of James Dyer, to have set off to her the share to which she is entitled in her husband’s real estate, under the following clause of his will: “I give and devise to my wife, Mary M. Dyer, the one-third of all my real estate as long as she remains my widow, to be accepted and received by her in lieu of dower.” The plaintiff also seeks to recover on-e-third of the rents, issues, and profits of such real estate since July 12,1893, when the defendants took possession of the same under a sale to them in foreclosure subject to the plaintiff’s rights. An interlocutory judgment has been entered by consent of all parties, in which it is adjudged that the plaintiff is entitled to recover under and by virtue of the provisions and devise for her benefit contained in the last will and testament of James Dyer, deceased, one-third of all the premises described in- the judgment (which are the same premises described in the complaint), so long as she remains his widow. The interlocutory judgment also appoints a referee to admeasure, set off, and apportion to the plaintiff herein her one-third interest in said premises under and by virtue of said provision and devise as aforesaid, and to take an account of the rents, issues, and profits of said premises which have accrued since the defendants have been in possession, and to hear and determine the amount said plaintiff is entitled to receive from said rents, issues, and profits, and also to take proofs as to the facts and circumstances alleged in the pleadings herein, and with a direction that he report to the court with all convenient speed. The referee appointed by this interlocutor)’ judgment has made his report, in which he sets off to the plaintiff a portion of said premises, which is fully described in his report, containing 40.63 acres, no part of which is covered by the lease hereinafter mentioned. He also reports that there are no rents, issues, and profits of said premises which have accrued since the defendants entered into possession of the premises up to and including the 15th day of June, 1894, in which the plaintiff is entitled to share. After the entry of the interlocutory judgment, and while the matter was pending before the referee, an action was brought against the parties to this action under one of the Van Rensselaer perpetual leases, covering a considerable proportion of the premises in question, for the recovery of the

I think the referee’s ruling was right, and that he could not properly, under the pleadings and the interlocutory judgment, receive or consider the evidence objected to. The complaint alleges that the testator was at the time of his death the owner in fee of certain real estate, which is fully described therein. The answer does not deny this. The premises described in the complaint includes the portion subject to the perpetual lease, and from which the parties have been ejected in the action brought for re-entry thereunder. The interlocutory judgment, which was entered by consent of all parties, and under which the referee was appointed, adjudges that the°plaintiff is entitled to recover one-third of the entire premises therein described, and the description includes the portion subject to the lease. This judgment, so long as it stands, binds all the parties and the referee. He therefore properly sustained the objection to the evidence in question.

I think, however, as the case now stands, it is a proper case for an application to the court for an amendment of the answer and of the subsequent proceedings, including the interlocutory judgment, and for the granting of that relief upon such terms as may be just, to the end that the lease and the judgment and execution thereunder may be set up in the ,answer, and be given such weight as they are ■entitled to in determining the question of the share the plaintiff is entitled to in her husband’s real estate under the provisions for her benefit in his will. Neither the testator nor any of the parties to this action had any right to enjoy and possess the premises covered by the lease except so long as the rent reserved thereby was paid. The right of re-entry for nonpayment of rent was a right superior to any right of the testator or of any party to the action in relation to the premises in question. Since this action was begun, the defendants and the plaintiff have been ejected, under a iudgment on this lease, from a large portion of the premises, which, at the time this action was begun, was claimed by the plaintiff and admitted by the defendants to be owned by the testator in fee at the time of his death. Manifestly it would be inequitable to prohibit the defendants from having an opportunity to put the case in such shape as to have these

As the case now stands, no errors appearing in the proceedings, before the referee, his report should be confirmed, but this should be without prejudice to an application to the court to have the case-reopened; and to have the answer, interlocutory judgment, and all proceedings amended as herein suggested, and the case sent back to-the referee, not only to consider the lease and the ejectment thereunder, but to bring the account of the rents down to the present time. A stay of entry of judgment of 20 days will be granted to the defendants to enable such motion to bé made.

I think the costs in the case are in the discretion of the court. While it is an action to recover an interest in real property, it is not an action triable by a jury to recover such interest, and therefore-plaintiff is not entitled to costs of course. Code Civ. Proc. § 3228, subd. 1; Id. § 968. Under the circumstances of this case, the question of costs will be reserved for a later application.

Ordered accordingly.