Harrison v. Peck

By the Court,

Brady, J.

It is not necessary to add to the opinion of the referee in this case, which embraces and properly disposes of the questions involved herein; but a few suggestions may not be objectionable. It is said that dower is highly favored in equity; and it was said by the master of the rolls, (Sir Thomas Trevor,) on one occasion, “ the right that a doweress has to her dower is not only a legal right, and so adjudged in the law, but it is also a moral right, to be provided for and have a maintenance and sustenance out of her husband’s estate, to live upon. She is therefore in the care of the law, and a favorite of the law; and upon this moral law is the law of England founded as to the right of dower. (Denton v. Nanny, 8 Barb. 620. 1 Story’s Nq. § 629, and note 1.) By reference to the Revised Statutes of this State we find the dower right thus declared : “ A widow shall be endowed of the third part of all the lands whereof her husband was seised of an estate of inheritance at any time during the marriage.” There is no qualification or condition in this section, and the sections of the statute relating to it and the admeasurement of dower indicate a clear intention of 'the legislature that, as between the widow and the heir or devisee, this provision shall be enforced unburthened, (1 R. S. 770, §§ 1, 4; 2 id. 491, § 18,) if that may be, except from the time an assignment of the dower has been made. The direction to the executor to proceed with diligence to pay the debts of the deceased, and in the order expressed, contained in the Revised Statutes (2 R. S. 87, § 27) is in legal effect an appropriation of the personal estate for that purpose, and it must be employed therefor. (Seabury v. Bowen, 3 Brad. 207.) And this result having been attained, the legatee has no right against the widow’s dower, founded upon such appropriation. It must be assumed, in the absence of an express provision to the contrary, that the assignment of dower was predicated of this provision of the law which was in view of the contracting parties. The instrument of the 15th of November, 1861, contains no such provision. It imposes upon the widow the obligation to pay her fair and equitable proportion of unpaid taxes and assessments to which the premises described therein were subject at the time of her marriage with John Harrison, the decedent, and in legal contemplation there is no proportion for her to assume. The conclusion of the referee, therefore, that the taxes assessed and unpaid before the assignment of dower was made, cannot be charged upon the estate assigned, where there is personal estate sufficient to pay them, is correct. The burdens assumed with the enjoyment of the life estate relate to the future only.

[New York General Term, April 4, 1870.

The judgment should be affirmed.

Ingraham, Geo. G. Barnard and Brady, Justices.]