Opinion
Argued April 29, 1872
Decided November 12, 1872
E.P. Wheeler and F.J. Fithian for the appellants.
D.P. Barnard for the respondent.
The statute declaratory of the common law enacts that a widow shall be endowed of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage. (1 R.S., 740, § 1.)
It is not necessary that the husband should have been seized of a fee simple absolute, to enable the wife to have dower. If he was seized of an estate in tail male, or of the heirs of his body, she shall have dower. (Lit, § 53, 40, a; Com. Dig., title Dower, A. 6.)
"Thus, generally, in every case where the issue which the husband may have by his wife by possibility may inherit, his wife shall be endowed" (Com. Dig., title Dower, A. 6; Park on Dow., 79; Perk., § 301; Lit., § 52.)
So, where the husband is seized of a base or conditional fee, or of a fee with a determinable quality attached to it, she has dower.
The dower will attach subject only, when the determinable quality arises from defect of title, to be defeated by the avoidance of the estate of the husband. (Park on Dow., 49; id., 37.)
So, if the husband have a defeasible estate in fee tail, his wife shall be endowed till his estate be defeated. (Com. Dig. Dower, A. 6, and cases cited.)
So, her dower terminates, if the conditional or base fee be ended, and the grantor enter for condition broken. ( Beardslee v. Beardslee, 5 Barb., 324.)
"The seizin must be of an estate of inheritance, conferring the right to the immediate freehold, as the result of one entire limitation, or several consolidated limitations." (Park, 7.)
Seizin of a vested remainder is not sufficient to give dower. So plain a point is decided in this court. ( Durando v. Durando, 23 N.Y., 331.)
I see no objection to the merger of this life estate of John Jackson, the father, in the vested remainder of his son, the husband of Mary L. Jackson, under the decision of Moore v. Littel. ( 41 N.Y., 66.) This is a part of the same estate there adjudged. If the son should die in the lifetime of the father, I think the better opinion is that the estates divide again, and the widow is then not entitled to dower.
Moore v. Littel holds the estate of the son, prior to the death of the father, to be a vested remainder; the son was also seized in fact and in law of his father's life estate, and then became seized of the inheritance, subject to being defeated by his own death, prior to the decease of his father. In such case I think the wife has dower, subject to being defeated by the same means. The plaintiff claims that the sale of the son's life estate upon execution cut off his title.
It is a settled rule of the common law, laid down in the elementary books, that after dower has once attached, it cannot be extinguished or suspended by any act of the husband alone, in the nature of alienage or charge. (Park, 191).
The rule is adopted in much broader language in our statute. (1 R.S., 742, § 16.)
At common law there might have been an intermediate estate for years and yet the wife had dower — as estates for years were not highly regarded at common law. But cessit executio during the term. (Com. Dig. Dower, A. 6; Perk., § 336.)
So, if there be a mesne remainder for life, who surrenders his estate to the tenant for life (Id.), though the surrender be upon condition, for the estate is gone until the condition be broken. (Id.)
In this case there is no intervening estate. The husband is seized of the life estate in fact and in law, and he is also seized of a vested remainder as adjudged, subject to be defeated of the remainder by his death prior to that of his father.
This is such a seizin as prevents the alienation of the estate or its encumbrance, to the prejudice of the wife's dower. In other words, dower attaches to such an estate, subject to be defeated as above stated, and as the husband survived the father, her dower becomes absolute. The decree must be modified according to these views, with costs to her — no costs to either of the others, and the cause remitted for further proceedings.
All concur.
Judgment modified in accordance with opinion, and affirmed as modified.