Lewis v. . Smith , 9 N.Y. 502 ( 1854 )

The mortgage executed by George Lewis, the late husband of the plaintiff, was of all his right, title and interest, of, in and to the premises in which she now claims her right of dower. The plaintiff did not join in the execution of the mortgage, and, of course, her dower right, as such, could not be cut off by the decree of foreclosure. But it is contended that at the time of the foreclosure and sale of the mortgaged premises, the right of dower of the plaintiff was barred by a devise to her contained in the last will and testament of her husband; not by any express provision to that effect, but by implication. In the case ofAdsit v. Adsit (2 John. Ch. R., 448), Chancellor KENT, after an elaborate review of all the authorities, lays down the rule, that in order to warrant the implication, from the provisions of the will, that the testator intended a devise or legacy to be in lieu of dower, the claim of dower must be inconsistent with the will, and repugnant to its dispositions, or some of them. In the case of Sanford v. Jackson (10 Paige, 266), Chancellor WALWORTH says, that to bar the wife of her dower by implication, the provisions of the will or some of them must be absolutely inconsistent with her claim of dower, so that the intention of the testator will be defeated as to some part of the property devised or bequeathed to others, if she takes dower as well as the provision made for her in the will. The rule, as laid down in these two cases, though somewhat differently expressed, is the same in substance in each, and is unquestionably sustained by the authorities. If, then, we apply this rule to the present case, the question arises, how is the claim of dower of the plaintiff inconsistent with any of the provisions contained in the will of the testator? If she takes a life estate in one-third of the real estate of which the testator died siezed, by way of dower, and in the other two-thirds by way of devise, she will have the whole of the real estate for life, as much as if she took the whole as devisee. The intention of the testator as to the estate which she should have will be fully carried out, and it will not be defeated as to any other disposition which he has made of his property. The will gives the real estate, and the proceeds thereof, in case of sale, to the wife during her life, and, after her death, to her two nephews and the brother-in-law of the testator. It will not be pretended that this last provision will be defeated by sustaining the plaintiff's claim. In the case ofSandford v. Jackson (supra), the testator devised and bequeathed all his property, real and personal, to his wife and to two other persons, to be kept for her use and support as long as she should continue his widow, and until his youngest child should become of age, and then directed that all his property should be equally divided amongst his children. The wife survived the testator, and afterwards married again; and the question arose whether her acceptance of the devise was a bar to her claim of dower in the testator's real estate after his youngest child arrived at the age of twenty-one years. Upon this state of facts the chancellor sustained the wife's claim, and in giving his opinion said, that no question of conflicting claims could arise until the children became of age, and that, until then, it was wholly immaterial whether the wife took the whole real estate under the will, discharged of dower, or took two-thirds under the devise, and the residue under her common law right of dower. But, in the case before us, no question of conflicting claims can arise at any time, no matter whether the wife claims the whole as devisee, or a part by way of devise and a part by way of dower. Neither is there anything in the provision authorizing the executors to sell the real estate which is inconsistent with the plaintiff's claim. It simply gives a power to the executors, to be exercised, if necessary, for the purpose of enabling them to carry out more effectually the intention of the testator, that the plaintiff should have the benefit of the real estate during her life; and this she would have equally whether the executors should have the power to sell the whole of the real estate, including her dower right, for her benefit, or whether they should only have the power to sell the real estate subject to her right of dower, and she should have the power to sell her dower interest.

The next question which arises is, whether the decree in the foreclosure suit is such an adjudication, as to the plaintiff's right of dower, as to bar her from claiming it in this suit. It will be observed that the bill of complaint in the foreclosure suit made no allusion to the claim of dower. It stated the substance of the will of the mortgagor, and then alleged generally that the plaintiff and the other devisees in the will had, or claimed to have, some interest in the mortgaged premises as subsequent purchasers or incumbrancers, or otherwise. In the case of The Eagle Fire Co. v. Lent (6 Paige, 635), it is said that the mortgagee has no right to make one who claims adversely to the title of the mortgagor and prior to his mortgage, a party defendant in a foreclosure suit, for the purpose of trying the validity of his adverse claim of title. And the person who filed the bill in the suit brought for the foreclosure of the mortgage executed by the testator, acting in the spirit of this rule, whether intentionally or not, has omitted to allege that any claim of dower was set up by the present plaintiff, or that any such claim had been barred by her non-election of dower. The plaintiff, however, was made a party to that suit for all the purposes for which she could be, and that was to cut off her claim to the equity of redemption as one of the devisees of the testator, and to that extent she is barred. But it is said that even if she was not made a party to the foreclosure suit in such a way as to cut off her claim of dower by virtue of the general allegation that she and the other devisees claimed as subsequent purchasers or incumbrancers, yet she was made such party, by virtue of the allegation that she claimed in those capacities or otherwise. This is an allegation which was made under one of the existing rules of the court of chancery, and applied, as the rule intended that it should, to persons who had some claim which arose subsequent to the execution of the mortgage, and to no others. The wordotherwise, according to the rule of construction adopted in all analogous cases, means in some other like capacity, and does not embrace a claim like that which is set up in this case. The conclusion then to which I have arrived is, that the question of the plaintiff's right of dower was neither raised nor decided, nor was it the proper subject of adjudication in the foreclosure suit; and that the provision of the statute which declares that the master's deed shall be a bar to all parties to the suit in which the decree of foreclosure and sale is made (2 R.S., 192, § 158), does not cut off a right in reference to which a person neither is nor can be properly made a party to the suit, although he may have been properly made such party, and may be barred, in reference to some other interest.

I think that the judgment should be affirmed.

The whole court concurring,

Judgment affirmed.