Phelps v. Phelps — 59 N.Y. St. Rep. 608

Majority

p. 608

Susan A. Phelps, Resp’t, v. John W. Phelps et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed Feb’y 12, 1894.)

Headnote

.Dower—Action to determine.

An action may "be maintained to determine inchoate right of dower in property purchased by the husband, the title to which was taken in the name of a third person" for the purpose of depriving her of dower.

Appeal from an interlocutory judgment overruling separate 'demurrers.

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 the defendant, I think, under the law in this state, the demurrer was 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 of which clearly holds 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 express

p. 609

ions 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 below8 as being the most equitable view of matters.

Affirmed, with costa.

All concur.