In re the Controversy between Dunn & Huether — 45 N.Y. St. Rep. 830

Majority

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In the Matter of the Controversy between William Dunn and George H. Huether.

(Supreme Court, General Term, First Department,

Filed April 14, 1892.)

Headnote

Vendor and purchaser—Title—Release of lunatic’s dower.

A release of a lunatic’s inchoate right of dower is not expressly or impliedly authorized by law, and hence the act of her committee in joining with her husband in a conveyance of land belonging to the husband will not extinguish her dower right, and such deed will not convey a good title free from dower to the grantee.

Submission of controversy without action.

B. J. Douras, for William Dunn; Qoldjogle & Cohen, for Geo. H Huether.

By title 6 of article IY. of chap. 17 of the Code, §§ 2320 to 2340 inclusive, this court is given the custody of the person and the care of the property of a person incompetent to manage himself or his affairs in consequence of lunacy, idiocy or habitual drunkenness, and in this city the court of common "pleas has concurrent jurisdiction with this court as to the custody of the person and the care of the property of such persons.

The power of the court, however, is limited by the provisions of this title, and there is no express authority given for the court or the committee appointed by the court to dispose of the property of the lunatic.

Section 2339 provides that the committee either of the person or the property is subject to the direction and control of the court by which he was appointed, with respect to the execution of his duties; but this direction and control cannot be construed to authorize the court to direct an extinguishment by the committee of the inchoate right of dower of the lunatic.

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There is no express provision as to the powers of the committee when appointed, but by § 2321 the court must preserve the hmat'ic’s property from waste and destruction and out of the proceeds must provide for the payment of his debts and for the safe keeping and maintenance and the education when required of an incompetent person and his family, and § 2339 provides that the committee of the property cannot alien, mortgage or otherwise dispose of real property except to lease it for a term not exceeding five years, without the special direction of the court obtained upon proceedings taken for that purpose as prescribed in title 7 of the chapter.

I do not think that the court is by this title given any power to - divest a lunatic of her inchoate right of dower in her husband's property; none certainly is expressly given and I do not think it is given by implication.

Section 2348 provides for the application to sell the real property of the lunatic, and authority is there given to the court to order the sale, conveyance, mortgage or lease of the real property or a term estate or other interest in real property belonging to the incompetent person.

It has been held in the case of Witthaus v. Schack, 105 N. Y., 336 ; 7 St. Rep., 345 , that an inchoate right of dower is not an interest in land at all, but is a contingent claim arising, not out of contracts but as an institution of law constituting a mere chose in action, incapablejof transfer by grant or conveyance, but susceptible only during its inchoate state of extinguishment, and such extinguishment can only be effected by the act of the wife in joining with her husband in the execution of a deed of land by force of the statute.

By § 16. chapter 1, title 3, part 2 of the Revised Statutes, it is provided that “no act, deed or conveyance executed or performed by the husband without the assent of his wife evidenced by her acknowledgment thereof in the manner required by law to pass the estates of married women * * * shall prejudice the right

of his wife to her dower or jointure or preclude her from the recovery thereof if otherwise entitled thereto.”

I think, therefore, that as this court or the committee appointed by the court is not directly authorized by statute to execute an instrument by which this inchoate right of dower shall be extinguished, and as the provision of the Code authorizing the sale of the lunatic’s property does not include an inchoate right of dower, and as the provisions of the Revised Statutes before cited provide that no deed of the husband without the assent of the wife shall prej udice the right of the wife to her dower, or preclude her from the enforcement thereof, that the act of the committee in joining with the husband in executing a deed of the property in which the wife has such an inchoate right of dower would not extinguish such right, and that in consequence thereof the deed tendered by the vendor would not pass a title in the grantee free from the wife’s dower.

Iluether is therefore entitled to judgment for the recovery of $500, with interest from October 17, 1891, together with the sum

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of $130, the amount agreed upon as the expenses for examining the title, and judgment should be ordered accordingly.

Van Brunt, P. J.—The papers submitted do not conform to the provision of the statute in that no statement of facts is agreed to, and the submission is not in the form of an action, but as the questions have been examined, and we concur in the foregoing opinion, we have concluded so to decide the question.

O’Brien, J., concurs.