Aikman v. . Harsell

Miller, J. The extent of the right of the plaintiff to dower in the real estate owned by her husband at the time of his decease depends upon the fact whether dower had been set apart and admeasured to Letitía A. Blackwell as the widow of William Drayton Blackwell, deceased, the father of Joseph Blackwell, plaintiff’s husband. Hpon the death of William Drayton Blackwell, Joseph and his sister, Mrs. Poillon, became entitled to an undivided one-half each of his estate, subject to the right of dower of their mother. At the death of Joseph, in 1859, his mother, if dower had not been assigned to and accepted by her, was entitled to a life estate, subject to the dower of plaintiff, his'widow, in his undivided one-half of the real estate, and his sister to the reversion, and the question now presented is, whether the mother at this time had, by admeasurement or otherwise, become entitled to a distinct portion of her husband’s estate as dower, which precluded her from taking by descent, under the statute of this State, an entire undivided interest for life in the real *190 estate left by her son Joseph Blackwell. It is claimed by the appellant’s counsel that Letitia A. Blackwell received and accepted one-third of the net rents and income of the premises described in the complaint from the death of her husband- in 1849, until her own death in 1878, as her dower in said premises, and that this was in effect an assignment of dower. It appears from the evidence that in 1855, Letitia A. Blackwell joined in a lease with her son Joseph and her daughter Mi’s. Poillon, of the property above named for a term of live' years, the precise terms of which lease are not stated, but that Joseph collected the rent under' the same until his death, and his wife after that time. Thereafter Mrs. Poillon assumed full charge of the whole property and executed leases thereof in her own name as lessor until her death in 1866. When she died she left a last will and testament appointing trustees to whom she devised her estate, and such trustees with Mrs. Letitia A. Blackwell and the plaintiff, as lessors, at the expiration of the term of the leases given by Mrs. Poillon, executed new leases for terms not exceeding two years at a time, and by the terms of two of these leases rent was made payable as follows: three-ninths to the said trustees, five-ninths to Mrs. Letitia A. Blackwell, and one-ninth to the plaintiff; the other leases did not state what portion of the rents each was to receivei It was stated by Mr. Poillon, one of the trustees at the time, that the object of drawing the leases in this form was to protect himself so that he would not be called on, as trustee for Mrs. Poillon’s estate, to account for the whole rent. It will be observed that the first lease did not fix the amount to be paid to either of the lessors; that all the other leases were for very short terms, and only two of them stated in what manner the rents were to be divided. Hone of them amounted to an assignment or admeasurement of the dower of Mrs. Letitia A. Blackwell. The precise purpose for which she joined in the first lease is not apparent, and it is not shown that she ever received any of the rents arising from the same. The leases executed by Mrs. Poillon did not show that Mrs. Blackwell or the plaintiff had any interest whatever in the *191 premises leased. These instruments, whether taken separately or together, did not constitute an assignment of the dower of Mrs. Blackwell in her husband’s estate. The leases executed after Mrs. Poillon’s death, being only for a brief period, could not well be regarded as an assignment of dower or an agreement in regard to the same which established Mrs. Blackwell’s interest in the premises. The law does not recognize any such agreement as a valid assignment of the right of dower. The right of a widow to dower, until it is assigned, is a mere chose in action which is not the subject of a sale upon execution at law, and before assignment or admeasurement is only a claim. (Lawrence v. Miller, 2 N. Y. 245; Moore v. Mayor, etc., 8 id. 110,113.) It is laid down in Coke on Littleton (Vol. 1, p. 612) that “ to bar dower the grant must be in fee tail or for the term of her life ; an estate for one hundred or one thousand years, if she so long live, is no bar of dower, albeit they be expressly made in lieu of dower.” In Ellicott v. Mosier (7 N. Y. 201) it is held that the receipt of rent by the widow for several years after the death of her husband in lieu of dower, of one-third of the rent of lands leased by him, will not bar her action for dower. (See, also, 2 Scribner on Dower [2d ed.], 83, 85, 253; and 1 Wash, on Real Prop. [4th ed.] 274.) The fact that the two year’s leases together continued for several years prior to and at the death of Mrs. Blackwell does not avoid the effect of the authorities cited. They were only a temporary arrangement and did not purport, upon their face or otherwise, to assign any right of dower absolutely during the lives of the persons entitled thereto. Only two of them provided for a division of the rents, the others being indefinite and uncertain in this respect. They only provided for a term for years, which is a chattel interest and not for a term for life, which, is a freehold. That this division was not intended to be an admeasurement for life is apparent from the fact that the leases executed after the two which provided for a division $f the rents contained no such clause, and hence made an entirely different agreement as to the rents. It may be added that all the prem *192 ises were not embraced in the leases and some portions were unoccupied at the time of Mrs. Blackwell’s death, and that as to these there was no agreement whatever to pay Mrs. Blackwell any part of the rents up to the time of her death. The learned counsel for the appellants cites several authorities to sustain his position to the effect that where the property is not divisible, the person entitled to dower may take a portion of the avails or the use of the same for a proportionate period. These cases have no application where it does not appear that an agreement was made for this purpose, or the dower duly assigned according to law. To constitute an assign-' ment or admeasurement of dower by virtue of any agreement or any specific act of the party, it should be clearly manifest that such was the intention. It cannot be established by evidence of leases executed for brief periods, some of which do not specify the precise rights of the parties, and which the evidence shows were not executed with the view of admeasuring any right of dower. In view of the facts presented it is quite obvious that the dower right of Mrs. Blackwell, or of the plaintiff, was never admeasured according to law, and that no act was done or instrument executed by either of them which precluded them from enforcing their rights in this respect. It follows from the consideration which we have given to the question discussed, that at the time of Joseph Blackwell’s death Mrs. Blackwell, his mother, became entitled to a life estate in the one undivided one-lialf of the premises of which he died seized subject to the dower right of the plaintiff. Whether the dower right of Mrs. Blackwell, in the undivided real estate of her son, became merged in the life estate of which she became seized upon his death, or was extinguished by the inheritance of his interest is not important, for in either contingency the plaintiff, having done no act which precluded her from maintaining her rights, was entitled to her right of dower in the same. The principle of estoppel has no application to the facts presented in this case. *193 We have examined the other points made by the appellants’ counsel, and we do not find in any of them any ground of error in the rulings of the trial court. The judgment should be affirmed. All concur. Judgment affirmed.