Jones v. Fleming , 44 N.Y. Sup. Ct. 227 ( 1885 )

Folleto, J.:

This is an appeal by part of the heirs of James Jones from an-interlocutory judgment awarding the plaintiff dower in lands of which Jones died seized.

But two defenses were interposed in this action: (1.) That the legal relation of husband and wife never existed between the plaintiff and James Jones, because at the time of their marriage the-plaintiff’s first husband was living. (2.) That, January 28, 1880^ Mrs. Jones was paid $3,400 by the committee of her husband’s •estate, in consideration of which she released and conveyed to the ■committee and to the children of her husband by a former wife all cf her interest in the estate of Jones, including her inchoate right of dower and covenanted to thereafter execute such further conveyances as might be necessary to bar her dower. James Jones died •October 28, 1880, leaving as his sole heirs-at-law three daughters, who are named in the agreement, and in the quit-claim deed.

The referee finds that when the plaintiff and Jones, in ter married, the plaintiff’s first husband had absented himself for five successive years without being known to the plaintiff to be living, and that she believed him to be dead. The evidence is sufficient to sustain this finding of fact and it cannot be set aside. The marriage between the parties was never adjudged invalid. Whether a woman is entitled to dower in the lands of her deceased husband under a marriage so contracted is not an open question in this court. (Jones v. Zoller, 29 Hun, 551; S. C., 32 id., 280; Price v. Price, 33 id., 76; Scrib. Dow. [2d ed.], chap. 7, pp. 1-15.)

The only remaining question is whether a quit-claim deed of a married woman, executed in consideration of money received from the husband or his estate and running to the committee and the children of the husband, by which her inchoate right of dower is assumed to be released and conveyed, and in which deed she covenants to thereafter execute such further conveyances as may be necessary to bar her dower, is a bar to her right to recover dower in case she survives her husband. A release by a wife to her husband of her inchoate right of dower does not bar her claim. (Crain v. Cavana, 36 Barb., 410; S. C., 62 id., 109; Townsend v. Townsend, 2 Sandf., 711.) This is so notwithstanding the release is contained in a valid deed of separation made with a trustee in behalf of the wife and upon a pecuniary consideration, (Carson v. Murray, 3 Paige, 483, 502, 503; Guidet v. Brown, 54 How., 409; S. C., 3 Abb. N. C., 205; 1 Wash. R. P. [4th ed.], 252, p. 18.) Such an instrument does not operate as an effectual release, conveyance or as an estoppel. (Graham v. Van Wyck, 14 Barb., 531; 2 Scrib. Dow. [2d ed.], 309.)

A release, conveyance or covenant with the committee of the husband is not valid, unless it would have been valid if executed to and with the husband. The fact, that the instrument runs to the-children of the husband, does not effect a conveyance. or release of her right to dower. An inchoate right to dower is not an estate,, nor is it an interest in real estate, and it is not the subject of grant or assignment. (Moore v. The Mayor, 8 N. Y., 110; Marvin v. Smith, 46 N. Y., 571, 574; 1 Wash. R. P. [4th ed.], 301, p. 1.). “ During coverture, the wife’s inchoate right of dower is incapable-of being transferred or released, except to one who has already had, or by the same instrument acquires an independent interest in the-estate.” (Elmendorf v. Lockwood, 57 N. Y., 322, 325; Marvin v. Smith, supra) An inchoate right to dower not being the subject of a grant, the granting words in the conveyance do not carry the-inchoate right to the persons described as grantees. A release is-the only mode by which a wife can bar her inchoate right to dower. A naked release to one not in possession of or having a vested interest in the premises is void. (3 Wash. R. P. [4th ed.], 380, p. 21; 4 Greenl. Cruise, 110, 115, pp. 21 to 40; Elmendorf v. Lockwood, supra.) It is recited in the instrument that the childr-en are the-prospective heirs of the husband, and it is urged that their interest as apparent heirs was sufficient to make the instrument to them oper-ative as a release. An heir apparent is one whose right of inheritance is indefeasible, provided he outlives the ancestor, as the eldest son, who must, by the common law in England, become the-heir of his father on his death. An heir presumptive is one who, if the ancestor should die immediately, would succeed to the estate,, but .whose right of inheritance may be defeated by the birth of a nearer heir. (2 Black. Com., 208; 3 Pres. Abs., title 5.) Neither definition describes the interest of persons whose right to inherit, may be defeated by conveyance or devise. Neither heirs apparent nor heirs presumptive have a legal estate or interest, though they •may, in equity, bind this possibility by way of estoppel as against themselves. (3 Pres. Abs., title 6.) The children of the husband had no vested interest or estate in or possession of the land, and the instruments did not operate as a release of the plaintiff’s right to dower. Neither do the instruments, and the transactions out of which they arose and of which they form a part, create an estoppel in favor of the children and against the plaintiff. The consideration was paid by the committee of the estate of the husband. The children paid nothing, nor did they surrender anything, nor were their legal rights in anywise affected. At the date of this deed a married woman was authorized to sell and transfer her real a.nd personal estate and enter into contracts and covenants in respect thereto; but an inchoate right to dower is not a part of her separate estate. It cannot be sold or taken by creditors. It is a mere right arising out of the marital relation which may or may not ripen into an estate.' Chapter 381, Laws 1884, was passed after the execution of the deed. The statutes existing at the date of this deed were not broad enough to authorize a married woman to contract in respect to this right, except in the manner pointed out by the Revised Statutes. (Bertles v. Nunan, 92 N. Y., 152, 160.) Before the statute of 1848 and subsequent statutes enlarging the rights and powers of married women, they could not estop themselves by covenants. (Jackson v. Vanderheyden, 17 Johns., 167; Big. Est., 276.) But since these statutes, they may by such covenants as they are authorized to enter into. This not being a subject which the statutes authorize them to contract in respect to, the plaintiff is not estopped by the deed and contract from recovering her dower. To bring the ease within section 12 of title 3, chapter 1 of the second part of the Revised Statutes (1 R. S., 741), the provision in lieu of dower, must take effect on the death of the husband. (McCartee v. Teller, 2 Paige, 511; affirmed, 8 Wend., 267; Crain v. Cavana, supra; Guidet v. Brown, supra.)

The judgment is affirmed, with costs.

HaediN, P. J., and YaNN, J., concurred.

Judgment is affirmed, with costs.