
    Margaret R. Green, Ex’rx, Resp’t, v. Emma S. Reynolds, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 20, 1893.)
    
    1. Dower—Failure oe conditions in deed.
    Plaintiff’s testatrix, wlio was the grandmother of defendant’s husband,, conveyed to the latter certain premises on condition that he should support, maintain and clothe her during her life, pay her funeral expenses, keep the building insured and pay taxes and assessments, which conditions were the sole consideration for the conveyance. The husband accepted the deed, but wholly failed and neglected to perform the conditions, and at her request reconvoyed the premises to her, defendant refusing to join in the reconveyance. She left the premises a few days later, leaving testatrix in possession. Held, that defendant’s right of dower being a mere incident of the title of her husband, depended on the performance by her husband of the conditions mentioned; and the plaintiff’s testatrix having entered for a breach of the condition on which the estate was held, it fell with the estate of the husband.
    3. Same—Costs.
    As the defendant, by her refusal to join in the conveyance, put plaintiff to the necessity of bringing the action to divest her apparent dower interest, it is not an abuse of discretion to give costs against the defendant.
    Appeal from a judgment of the supreme court entered in. Cayuga county upon the report of a referee.
    
      F. D. Wright and Frank C. Cushing, for app’lt; John D. Teller, for resp’t.
   Lewis, J.

This action was brought to obtain a judgment, declaring the defendant’s inchoate right of dower in certain premises in the city of Auburn, county of Cayuga, conveyed to her husband, Fred A- Eeynolds, by his grandmother, Phoebe Abbey, forfeited and terminated.

The referee to whom the action was referred, upon evidence sustaining bis findings, found as facts that Phoebe Abbey, a resident of the city of Auburn, was the owner in fee of the premises-described in the complaint, and on November 5,1890, she entered into an agreement with her grandson, Fred A. Eeynolds, to convey to him the premises described in the complaint, on condition that he assume and fulfill the covenants and conditions set forth in the deed as the consideration for the grant, and that relying upon sai$ agreement she executed and delivered to him a conveyance of said premises upon the conditions stated therein, to-the effect that the grantee should support, maintain and clothe the grantor during the term of her natural life, pay her funeral expenses, keep the buildings upon the premises insured and in-good repair, and pay the taxes and assessments thereon, and that upon failure to perform any of said covenants and conditions the grant should be void and of no effect. These conditions were the sole consideration for the conveyance. Reynolds accepted the deed, assented to the covenants and conditions, went into possession of the premises, but he wholly failed and neglected to perform on his part and conceded his inability so to do, and on the 31st day of January, 1891, at the request of the grantor, he executed and delivered to her a quit-claim deed reconveying the premises. The sole and only consideration for said re-conveyance was his failure to keep and perform his agreements and covenants-contained in the deed to him. Mrs. Abbey on the same day presented the deed to the defendant and requested her to join in the execution thereof which she refused to do and thereupon this action was-commenced. Mrs. Abbey died after the commencement of the action, leaving a last will which was duly admitted to probate, and letters testamentary were granted to the plaintiff, who was the executrix named therein. The plaintiff was the sole devisee of the real estate described in the complaint and was by the will authorized to sell and convey the same as executrix. The referee found as conclusions of law that the estate acquired by Fred A. Reynolds under the deed from Phoebe Abbey was forfeited on account' of the breach of the conditions upon which the same was held, and that the estate of the defendant in said premises was at the same time terminated by the forfeiture of the principal estate, and that she had no interest as doweress or otherwise in the premises described in the complaint, and directed judgment accordingly.

The defendant was at the time of the conveyances mentioned, and still is, the wife of the grantee, Fred A". Reynolds. The re conveyance to Mrs. Abbey by her husband was without her knowledge or consent.

The defendant’s dower interest in the land was a mere incident to the title held by her husband. The instrument by which he took the title provided that if he failed to pay for the property by performing the conditions contained in the deed the grant should be void and of no effect. . The sole and only consideration for the conveyance of the property was the grantee’s agreement to perform the conditions upon which he was to have the property. Plaintiff’s right to dower in the premises depended upon the performance by her husband of the conditions mentioned. The husband voluntarily re-conveyed the property to his grantor, being unable or unwilling to perform his part of the agreement. Had he refused to re-convey and a joint action against himself and wife had been 'brought upon the evidence presented by this record, plaintiff would have been entitled to a judgment declaring the conveyance void as against both defendants. The defendant moved away from the premises a few days after her husband re-conveyed them, so that Mrs. Abbey was fully restored to her former possession. It was the case of a re-entry into the possession of an estate for a breach of a condition upon which the estate was held, and the dower interest of the wife being a mere incident to the title of her husband, fell with the estate of the husband, Beardslee v. Beardslee, 5 Barb., 324, upon the same principle that in case of a deed and a mortgage executed simultaneously for the purchase money, the right of dower of the wife of the grantee is liable to be defeated by the foreclosure of the mortgage for the non-payment of the purchase money.

Mrs. Abbey in fact continued to reside upon the premises from a time prior to the conveyance to her grandson, and up till the time of her death. The doctrine that the breach of a •condition subsequent does not defeat an estate until entry by the grantor has no application in this case, for hers was a reentry for conditions broken. The plaintiff having shown a state of facts which would have entitled her to a judgment declaring the conveyance to the defendant’s husband void, there would •not seem to be any good reason why her action to foreclose and divest the defendant’s apparent dower interest should fail because of the voluntary surrender by her husband of his rights and interest in the property to his grantor.

The referee gave the plaintiff costs against the defendant; the defendant claims this was an error. The defendant by refusing to join with her husband in the conveyance put the plaintiff to the necessity of commencing and prosecuting the action.

It was within the discretion of the referee to allow costs, and we see no reason for disturbing the judgment because he exercised that discretion in favor of the plaintiff.

.The judgment appealed from should be affirmed, with costs against the defendant.

Dwight, P. J., Haight and Bradley, JJ., concur.  