
    Emigrant Industrial Savings Bank, Plaintiff, v. Thomas Regan, Respondent, and Jennie A. Regan, Appellant, Impleaded with Others.
    
      Inchoate dower—-one-third of surplus money on mortgage foreclosure, subject thereto, not paid over to a divorced husband on his giving security.
    
    The sole persons interested in a surplus arising on a mortgage foreclosure sale-being the owner of the equity of redemption and his wife, who had an inchoate right of dower in the mortgaged premises, two-thirds of the money were paid to the husband, and the remaining one third was deposited in court to secure the inchoate dower interest of the wife, who had obtained a judgment of separation from her husband, and was dependent upon alimony awarded her thereby.
    
      Held, that, under the circumstances, the court should not direct the payment of the money, so deposited, to the husband, upon the execution of a bond with two sureties, conditioned upon the payment to the wife, in case she survived the husband, of the income of the money during her life.
    
      Semble, that in a proper case the court, in its discretion, might make such an order.
    
      Appeal by the defendant, Jennie A. Regan, from, an order of the Supreme Court, made at the New York' Special Term and entered in the office of the clerk of the county of New York on the 11th day of April, 1899, directing the chamberlain of the city of New York to pay certain moneys deposited with him to the defendant Thomas Regan, upon the latter’s furnishing a bond conditioned as required by the terms of the order.
    
      S. B. Livingston, for the appellant.
    
      John Mott Stearns, for the respondent.
   Patterson, J.:

By the order appealed from Thomas Regan was authorized to withdraw from the city chamberlain a certain sum on deposit, being surplus moneys arising from the sale of mortgaged premises. Regan was the owner of the equity of redemption. Upon a sale of the mortgaged premises a large surplus resulted, and upon a proceeding instituted respecting such surplus only two persons claimed it, namely, Thomas Regan and Jennie A. Regan, his wife, the claim •of the latter being based upon her inchoate right of dower. A referee was appointed in the proceeding and he reported that Jennie A. Regan, as the wife of Thomas Regan, was entitled to an inchoate right of dower in one-third of the surplus; that the then present value of that contingent right of dower was a certain sum; that the surplus moneys should be distributed by paying to Mrs. Regan either that present value or by setting apart a portion of such surplus for her dower in case of her surviving her husband, and that the balance of the surplus should be paid over to Mr. Regan. Mrs. Regan objected to the report and declined to accept a gross sum; and upon an application to confirm the report of the referee the court sustained the objection' of Mrs. Regan and directed that two-thirds of the surplus moneys be paid to Mr. Regan, and that the remaining one-third be invested by the chamberlain to secure the inchoate dower interest, but without prejudice to the right of Mr. Regan to apply to the court for a further order directing the city chamberlain to pay to Mr. Regan the one-third thus retained, upon his giving to the chamberlain or to Mrs. Regan such sufficient security as the court might deem proper and sufficient for the protection of the rights of Mrs. Regan in the surplus moneys. . That, order was made in February, 1899. On the 8th of March, 1899, Mr. Regan made a motion for an order directing the payment of the one-third of the surplus moneys to him upon his giving security, and the court made the order now appealed from, which provides that the chamberlain pay the one-third now remaining of the surplus to Mr. Regan upon the presentation to him (the chamberlain) of a bond with two sufficient sureties who are to justify on two days’' notice to be given to Mrs. Regan’s attorney, the bond to be approved by a justice of the Supreme Court and to be conditioned for the ■ payment to Mrs. Regan, after the death of Mr. Regan, if she shall survive him, of the annual interest or income of the one-third of the surplus moneys during the term of her natural life.

It is objected by the appellant that the court had no jurisdiction to make this order. In Jackson v. Edwards (7 Paige, 386) the chancellor stated that the dower right of a wife might be effectually protected in the proceeds of sale of real estate in a partition suit by allowing such proceeds to be paid over to the husband upon his giving security to the register or clerk that the interest or income of one-third of the proceeds shall be paid to her after his death, during-her natural life, should she survive him. In Denton v. Nanny (8 Barb. 618) it was said that the reasoning of the chancellor in the case of Jackson v. Edwards would apply with equal force to moneys, arising on surplus proceedings in foreclosure suits.

Although the power may exist, it is one which rests in the judicial-discretion of the court to be exercised in each particular case, as justice may require, regard being had to the situation of the parties. Here, it is shown that Mr. and Mrs. Regan have been separated by a judgment of the court in favor of the latter, and that she is dependent upon alimony awarded her by the judgment of separation. The inchoate right of dower which she had in this real property of her husband, although not an estate, is, nevertheless, an interest which the court will protect, and is bound to protect. As was declared in Simar v. Canady (53 N. Y. 304), it is the" settled law of this State that as between a wife and any other than the State or its delegates or agents exercising the right of eminent domain, an inchoate right of dower is a subsisting and valuable interest which will be protected and preserved to her, and that she has a right of ■action to that end. That right has been recognized and enforced to such an extent as to entitle her to maintain a suit in equity to cancel of record, so far as she was concerned, a deed of her husband’s property puporting to have been executed by her, such action being-brought on the ground that the deed purporting to be signed by her never was so signed. (Clifford v. Kampfe, 147 N. Y. 383.) We are of opinion in this case, considering the situation of the parties, that as to this inchoate right of dower of the wife, those parties should stand to each other, as near as may be, in the same attitude as if the husband -were still seized of the land. It is no greater hardship to him that a third of the surplus money should remain on •deposit, he drawing interest upon it, than if the land had remained ■unsold, he receiving the rents and protits. We see no reason why the risk should be thrown upon Mrs. Regan of sureties (who may be perfectly solvent on the day they justify) subsequently becoming insolvent, or why she should be subjected to the possible contingency •of being obliged in the future to sue the obligors or their representatives upon personal bonds.

We think the order was, therefore, improperly made, in view of .all the circumstances of this case, and that it must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

O’Brien, Ingraham and McLaughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  