Sidway v. Sidway — 23 N.Y. St. Rep. 305

Majority

p. 305

Eliza Sidway, Resp’t, v. Isabel Sidway, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed April 12, 1889.)

Headnote

1. Dower—From what time computed.

Dower is to be computed upon the value of property as it was at the-date of succession by the heir.

3. Same—When doweress creates charge upon inheritance.

If the doweress has joined in the conveyance of a portion of the land, or in the creation of a charge upon it, or in any other act which detracts from the value of the inheritance, she must submit to a corresponding depreciation of her dower.

Appeal from a judgment entered on the report of a referee, in an action for the admeasurement of dower.

G. T. Quimby, for app’lt; W. L. Marcy, for resp’t.

A very simple statement of the problem presented by this appeal seems to us to demonstrate its correct solution by the referee.

By the death of John J. Sidway, in October, 1882, intestate, William J. Sidway, his sole heir-at-law, became the owner in fee of the premises in question, subject only to the right of dower of the plaintiff—his mother. The property

p. 306

was then worth the sum of $26,500. In January, 1883, the plaintiff and William J, Sidway united in the execution of a mortgage on the premises for the sum of $20,000, and , obtained thereon a loan of that sum of money, all of which was expended in improvements on the same premises, completed before the commencement of this action, and which were then and are now of the full value of the money expended therein.

By the death of William J. Sidway in June, 1885, and the subsequent birth and death of his posthumous child, the defendant, his widow, and the mother of such child, became the owner in fee of the premises subject to the dower of the plaintiff.

The latter having commenced this action for the admeasurment of her dower, and having consented to receive a gross sum in lieu thereof, the question is, upon what value shall such gross sum be computed? The answer is, upon the value of the property at the date of alienation, viz.: In this case, at the date of succession by the first heir. Such is the general rule which is not questioned here. Walker v. Schuyler, 10 Wend., 480 ; Marble v. Lewis, 53 Barb., 432 , and there is nothing, as we can conceive, in this case to take it out of the rule. There is a case in which a rule more onerous to the heir has been declared, viz.; where the heir has improved the land after descent, and before assignment of dower. In such case it has been held, in this state, and in Massachusetts, that the widow shall have dower in the improvements also. Humphrey v. Phinney, 2 John. R., 484; Catlin v. Ware, 9 Mass., 218 . Of course if the doweress has joined in the conveyance of a portion of the land, or in the creation of a charge upon it, or in any other act which detracts from the value of the inheritance, she must submit to a corresponding depreciation of her dower. But this case is in neither of the categories supposed. The charge created upon this land was by the joint deed of the doweress, and the owner of the fee; and it was for the improvement of the land itself, and resulted in the appreciation of its value to precisely the extent of the charge created upon it. The value of the inheritance was unchanged, and there was therefore nothing in the transaction to affect, in any measure, the interest of the doweress, or, as we have said, to take the case out of the rule that dower is to be computed upon the value of the property as it was at the date of succession by the heir.

Such was the conclusion of the referee in this case, and the judgment entered accordingly, must be affirmed.

Judgment affirmed, with costs.

All concur.