Clark v. Battorf

Mullin, P. J. It seems to have been held from the earliest times} at the common law, that the widow was entitled to crops growing on the land assigned to her for dower. 2 Coke’s Inst. 80; 1 Greenl. Cruise, 194, § 29. In 4 Kent’s Com. 66, it is said as the title to dower is communicated by the husband’s death, she is in from the husband’s death, and like any other tenant of the freehold, she takes upon a recovery whatever is there annexed to the freehold, whether it be so by folly, mistake, or otherwise. The supreme court of Massachusetts, in Parker v. Parker, 17 Pick. 236, held the widow entitled to improvements made by the heir on the land assigned to her for her dower, after the death of her husband. Kain v. Fisher, 6 N. Y. 597; 1 Will, on Ex. 633-635. Including the growing crop as part of the assets of the estate of the intestate does not make them such as against the widow who, in law, was entitled to them. Growing crops are declared assets by the [60] statute, but the declaration does not affect the right of persons who may be lawfully entitled to them, as against creditors, and next of kin. The growing grain was in the inventory, doubtless, under the belief that it was assets, and the widow probably died in that belief. But that does not impair the right of her representatives to demand the avails of it. She had neither sold or released her right to the crops, and unless she had done so her title was perfect, and her representatives are entitled now to demand .the avails from the appellants. The widow has neither said nor done any thing which estopped her in her life-time, or her representatives since her death, from demanding the avails of the crop. It would be grossly unjust to compel the appellants to account to the next of kin of Robert Clark for the crop, and leave them liable to be compelled to. pay for it a second time to the representatives of Mrs. Clark. That part of the decree of the surrogate appealed from must be reversed with costs to the appellants, to be paid out of the estate, and if enough is not left in appellants’ hands to pay the same, then the appellants’ costs to be paid by the respondents in this appeal. So ordered.