Findley v. Lawless ( 1860 )

By the Court.

Lyon, J.,

delivering the opinion.

The only question in this case is this: Whether, upon the application of a widow for dower, she having given notice of such intention to the administrator of her deceased husband, a third person, on his own motion, can come into Court, cause himself to be made a party to the proceeding, and resist her right to have dower assigned to her? The Court below decided that he could not, and we concur in that opinion.

By the Act óf 7th of December, 1824,. Cobb’s Dig., 228, any person interested in the lands upon which the widow claimed dower, could traverse and deny the right of the applicant. When an issue was formed and tried by a special jury, under the provisions of that Act, the widow was required to give notice of her intended application' to all persons interested in the land. This made them proper parties to that proceeding, and entitled them to be heard; and the judgment of the Court making the assignment, concluded all parties affected with notice. The Act of 21st February, 1856, Cobb, 231, very materially changed the law in relation to the assignment of dower. By that Act, it is only necessary for the applicant to give notice to the representative of the estate of the deceased person in whose land the dower is claimed, instead of to all parties interested, as heretofore. No provision is made for bringing in third persons, and adjudicating their rights in respect to the land, nor does that seem to have been contemplated. The intention of the Legislature evidently was, to provide a more simple and summary remedy, for the assignment of dower to the widow, than that previously afforded by law. And if the Court allowed her application to be thwarted and delayed by litigation with adverse claimants, or others, the object of the law would be defeated. The right of such third persons cannot be affected by the judgment to which they are no parties, unless they claim as heirs at law, or from the administrator, and in that case, they must litigate through the administrator and through him only.

Judgment affirmed.