Oothout v. Ledings

By the Court, Savage, Ch. J. It has been decided that the 'widow is not a tenant in common with the person in possession of the land, 10 Wendell, 419, 528. As to the variance: The statute requires that in cases of this kind, the declaration shall state that the plaintiff was possessed of the one undivided third part of the premises, as the reasonable dower of the widow. 2 R. S. 304. § 10. Here the plaintiff claimed the one third of the half of a farm said to contain 118 acres, and the proof was that her husband was reputed to own one half of a farm which he occupied, being the north half. This presents no difficulty. The plaintiff is not bound to prove her claim precisely as laid. The statute provides, “ if the verdict be for an undivided share or interest in the premises claimed, it shall specify such share or interest ; and if for an undivided share in a part of the premises claimed, it shall specify such share, and shall describe such part of the premises.” 2 R. S. 307, § 30, sub. 6. This shows that the plaintiff may recover an interest different from her claim, and that the verdict will show the extent of the recovery. To avoid all possible difficulty, however, the plaintiff may amend so as to make the declaration to correspond with the verdict. 9 Wendell, 307. New trial denied.