Clark v. Richardson

Day, Ch. J.

The only question presented by the record which it is essential for us to consider is, whether the dower of the widow was, in this ease, the proper subject of partition. If it was not, the court erred in ordering it to be sold and the proceeds thereof invested for her during her life.

It is conceded that, at the time of the death of Lyman. Richardson, the dower interest was a life estate. It is claimed by appellee that, under the provisions of section 3630 of the Revision, this life estate was a mere mcwrnbrcmce upon the property, subject to partition, and that hence the order of the court was proper.

Said section is as follows: “ If an estate for life or years be found to exist as an incumbrance upon any part of said property, and if the parties cannot agree upon the sum in gross which they will consider an equivalent for such estate, the court shall direct the avails of the incumbered property to be invested, and the proceeds to be paid to the incumbrancer during the life-time of the incumbrance.”

Now L,the fallacy of appellee’s position is, that it assumes the very point in dispute, namely, that dower assigned for life is the subject of partition. Eor the section clearly has reference to property which may be partitioned, and provides the mode of adjustment of an incumbrance by way of estate for life or years existing thereon. Now, if it be found that dower, when assigned, is not properly the subject of partition, it must be apparent that section 3630 can have no reference or application to it. The object of the action of partition is to eíiect a division of real property among several joint owners, so that each may hold his respective share in severalty. Rev., § 3606.

It is to be observed in this case that the widow’s dowei had been assigned before the institution of the partition proceedings. Whatever was the nature of the widow’s tenancy before admeasurement of dower, from that time she did not hold any part of the premises as joint tenant *402 or tenant in common with the other heirs. By the assignment of dower she became seized in severalty of the part assigned, and entitled to its possession. Whence then is derived the authority to cast the portion thus severed again into a common tenure, and, against the will of the widow, to compel her, in lieu of the possession of the lands assigned, to accept the interest upon the avails of their sale ? Is it competent for the heirs to select their own time, it may be a season of great commercial embarrassment, for a partition and judicial sale of the premises, and to become themselves the purchasers of the widow’s dower, under circumstances the most unfavorable for its sale % If such be the law, it must rest upon controlling reasons of necessity and policy, which have never suggested themselves to our minds, and to which our attention has not been directed in the argument of appellee. The provisions, with reference to the admeasurement of dower, would possess little utility if each heir can, at his own election, and in his own appointed time, undo that which has been formally done.

The hardships and inconveniences which would dow from such a construction of the law are too numerous to be mentioned, but they will readily suggest themselves to the legal mind.

In New York it has been held that the widow is not included in the description of joint tenant, tenant in common or coparcener, and that, even before assignment of dower, she cannot be affected by partition proceedings. Bradshaw v. Callaghan, 8 Johns. 558 ; Coles v. Coles, 15 id. 319. It is not necessary that we should go to that extent in this case.

It is clear to us that if any tenancy in common exists before assignment, it does not exist after assignment. And, as a consequence of the destruction of the common tenure, it follows that the lands assigned as dower cannot be partitioned among the heirs, even upon their paying the widow the interest upon its value.

*403 She has a right to the enjoyment of the specific property assigned her, and cannot be compelled, against her will, to exchange it for other.

Reversed.