Bear v. Snyder — 11 N.Y. 592

Majority

p. 593

*Bear vs. Snyder.

Headnote

A widow is entitled to dower in lands, whereof her husband died seised, notwithstanding that dower hath before been assigned in the same lands to the widow of the husband’s father ; the only effect of the previous assignment of dower is to reduce the extent of the recovery, as thus : if the estate originally consisted of nine acres, the widow of the father is endowed of three acres, and the widow of the son of two acres ; and on the death of the widow of the father, the widow of the son becomes entitled to one third of the three acre's originally assigned to the widow of the father.

It is no objection to a recovery in ejectment that the title, as proved on the trial, varies from that set up in the declaration; as where, in ejectment for dower, the title is shown tobe subject to s previous estate in dower assigned in the premises, and the declaration alleged generally that the plaintiff was possessed of an undivided third part of the premises, without noticing the previous dower assigned.

A verdict may be for a part of the premises claimed, and this rule applies as well to the quantity of interest as to the extent of the premises in question ; a verdict for the whole of the premises claimed, when the plaintiff is entitled to only a part thereof, will not be set aside, but will be amended according to the right of the case.

A description of the premises claimed, setting them forth as the one undivided third part of all that part of a certain lot, in a certain township, of which the defendant is in possession under a purchase at sheriff’s sale on executions against A. B., is sufficiently certain ; and a further specification of the premises, by reference to a record of partition in a public office, does not hurt the declaration.

This was an action of ejectment of dower, tried at the Seneca circuit in December, 1831, before the Hon. Daniel Moseley', one of the circuit judges.

The plaintiff in her declaration stated, that on, &c. she was possessed of the one undivided third part of all that part of lot number four of the township of Romulus, now in the town of Fayette, of which the defendant was then in possession, under a purchase at sheriff’s sale on executions against Launcelot S. Bear, being that part of the estate of Samuel Bear, deceased, apportioned and set apart to the said Launcelot on a partition of the said estate, as set forth in 9 record of partition on file in the office of the register in chancery in the city of Albany, including the grist mill and water privileges in the record mentioned, then also in the possession of the defendant—*as her reasonable dower as the widow of the said Launcelot S. Bear, deceased, her

p. 594

late husband; and being so possessed thereof, the defendant afterwards, to wit, on, &c. entered into the said undivided third part and ejected her, &c. The defendant pleaded the general issue. On the trial, the plaintiff showed title in Samuel Bear to 100 acres of land in lot number four, Romulus, and proved that he died in 1807, leaving four children, of whom Launcelot S. Bear was one ; that one of the children named Sophia, died in 1809, unmarried and without issue, and that Launcelot married the plaintiff in 1819, and died in 1830, The plaintiff also produced an exemplification of a record in partition in chancery among the heirs of Samuel Bear, allotting to Launcelot certain premises, including a grist mill, with certain water previleges, subject however to Mary Hall’s claim of dower, to the amount of one ninth part of the profits of the mill. The defendant was shown to be in possession of those premises, and that he denied the right of the plaintiff to dower, on a demand being made by her attorney : who stated, on his examination, that he was employed by the plaintiff to demand her dower, but had no written power of attorney. The defendant moved for a nonsuit, on the grounds, 1. That the plaintiff had not sufficiently proved the seisin of her husband; 2. That the premises were not sufficiently described in the declaration; and 3. That one ninth part of the profits of the grist mill had already been assigned as dower to Mary Hall, the widow of Samuel Bear. The motion for a nonsuit was denied. "The defendant proved that in 1811, in a proceeding duly had for the ad-measurement of dower, one ninth part of the grist mill, and all the privileges thereunto appertaining, had been set off to Mary Hall, late the widow of Samuel Bear, giving her the right to take a ninth part of the profits of the mill. Whereupon the jury, by the consent of the parties, found a special verdict thus : “ The jury find for the plaintiff her right of dower, 1. That Launcelot S. Bear, in his lifetime, was seised of the premises described in the declaration ; 2. That he married the plaintiff in 1819 ; 3. That he died in 1830; 4. That the defendant was in possession of the premises at the time *of the bringing of this suit, but that no damand of dower was made.”

J. Clark, for plaintiff.

J. Knox, for defendant.

By the Court,

As this case comes up upon a special verdict, it would be sufficient to draw the legal consequences from the facts established ; and then the seisin of the husband, the marriage of the plaintiff with him, the death of the husband, and the possession of the defendant, being found, the plaintiff is clearly entitled to her dower in the premises, and to have one third set off to her. I will however give what seems to me an answer to all the objections which have been raised by the defendant.

1. The premises are sufficiently described ; the defendant was fully apprised by the the declaration of the extent of the plaintiff’s claim. By the statute, the plaintiff’s declaration must state that she was possessed of the one undivided third part of the premises, as her reasonable dower as widow of her husband. 2 R. S. 304, § 10.

2. If the verdict is informal or defective, that may be amended. There is no objection to the declaration, or the verdict, except that no notice is taken in either, of the right of dower in the premises of Mary Hall, the widow of S. Bear. But a verdict may be for a part of the premises claimed, and in such case it should specify such part. 2 R. S. 307, § 30, sub. 5. This provision probably had relation more to the extent of the premises, than to the quantity of interest, but it is as applicable to the one as the other. The verdict therefore should be for the plaintiff for eight ninths of the premises described in the declaration.

3. But it is objected, thirdly, that this suit seeks to recover dower upon

p. 596

dower. That cannot be done ; a widow is not dowable of lands assigned to another woman in dower. Cruise, tit. Dower, ch. 3, § 20; but this proves only that the plaintiff in this case is not entitled to dower in the one ninth assigned *to Mary Hall during her life. But she is entitled now to be endowed of the remaining eight ninths; and if she survives Mary Hall, she will be entitled to one third of the ninth part which Mary Hall now has. The rule on this subject is plainly illustrated in Reeve’s Dom. Re-lat. 58, and quoted and adopted by Ch. Kent, 4 Kent’s Comm. 64.

“ If A. sells to B., and B. to C., and C. to D., and D. to E., and the husbands all die, leaving their respective wives living, the widow of A. is entitled to be endowed of one third of the estate ; the widow of B. is entitled to be endowed of one third of what remains, after deducting the dower of the first wife ; the widow of C. of one third of what remains after deducting the dower of the wives of A. and B.; so on to the wife of D.—and if we suppose the estate to consist of nine acres, the wife of A. would be endowed of three acres, the wife of B. of two acres, the wife of C. of one acre and a third, and the wife of D. of one third of the remaining two acres and two thirds. In this case Samuel Bear owned the whole estate of 100 acres ; that was divided into three parts; the widow of Samuel Bear was entitled to one third of the whole, but it seems that one ninth only of the premises in question was assigned to her. As to that ninth, there can be no dower out of it during the continuance of Mary Hall’s estate in it; but as to the remaining eight ninths, it is subject to the plaintiff’s claim, and she is entitled to one third thereof.

The verdict must be amended accordingly, and then judgment for plaintiff.