Gibbs v. Esty

Bockes, J.: The only question in this case is whether Sarah L. Gibbs became and was so seized of the one undivided seventh part of the lands set off .and assigned to Mrs. Nancy Gibbs, as and for her dower, as to entitle Elias T. Gibbs, fhe husband of the former, to claim and hold, after his wife’s decease, as tenant by curtesy. The court at Special Term held against the defendant on this question. It was there decided, and we think correctly decided, that Sarah L. Gibbs had not, at any time during her life, such an actual seizin in fact and in deed, of the premises in controversy, as entitled her husband, on her docease, to hold the same as tenant by the curtesy. It is well found that Nancy Gibbs had the actual, sole, and exclusive [269] possession of the sixty-six acres, and the entire benefits thereof, continuously, from and after her husband’s decease until her death, which occurred after the decease of Sarah L., and that she held and •occupied the sixty-six acres from and after the time they were-set off to her in April, 1860, as and for her rightful dower. During all the time after the death of Garrett G. Gibbs until the decease of his widow, neither Sarah nor- her grantor, Webster, had more than a seizure in law. The setting, off of dower to Nancy, with the consent and by the agreement of all parties interested in the matter, and her actual occupation under and pursuant thereto, until her decease, was legal and valid as an assignment of dower. Such is the effect of the decision in Fowler v. Griffin (3 Sandf., 385). It was there held that an assignment of dower other than by a proceeding under the statute, became valid and obligatory upon the lieirs, by the widow’s entiy upon the lands assigned, and by the .adoption and ratification on their part of the assignment. So, too, it was held in Rutherford v. Graham (4 Hun, 796), that the right of dower was given by law, and that assignment of it might be made voluntarily by the heirs and widow; that this was but a mode of fixing the location and extent. (See also Conant v. Little, 1 Pick., 189; and Shuttuck v. Gragg, 23 Id., 88.) A parol partition by tenants in common will be valid and obligatory upon the parties, where followed by exclusive possession and acts of ownership by each tenant respectively. (Wood v. Fleet, 36 N. Y., 499; Otis v. Cusack, 43 Barb., 546.) The widow was in actual possession of the whole from the decease of her husband until her dower was assigned; and after that time, of the premises in controversy .as her' rightful dower. After the assignment, the seizin of the lieirs and of those claiming under them was defeated db ioiitio ; and "the dowress was in of the seizin of her husband, as of the time when that seizin was first acquired. (Lawrence v. Miller, 2 N. Y., 245; Graham v. Luddington, 19 Hun, 246; Lawrence v. Brown, 5 N. Y., 394.) In this last case it was held that the dowress, after .assignment of dower to her, was in possession as of the seizin of her husband ; and that her title related back to the time when her husband became seized. It follows, therefore, that Sarah L. Gibbs was never seized in fact [270] of the premises in controversy; consequently her husband had no-right by curtesy. (See also Ferguson v. Tweedy, 56 Barb., 168; affi’d in Court of Appeals, 43 N. Y., 543.) Ye find nothing in the cases cited by the appellant’s counsel against this, conclusion. The case of Adair v. Lott (3 Hill, 182), differs from this in hand on the facts, hence is not in point. The judgment must be affirmed, with costs. Learned, P. J., and Follett, J., concurred. Judgment affirmed, with costs.