
    Lawrence v. Brown.
    
      Dower. — Estoppel.
    After assignment of dower, the widow is in of the seisin of her husband;her title relates hack to the time of the marriage, or to the time when he became seised, and is not divested by a sale for the payment of debts ; she cannot be made a party to such proceeding, by the service of an order to show cause.
    To establish an estoppel en pais, it must appear that the party asserting it, has been induced by the acts or declarations of the party sought to bo es-topped, to believe the existence of the facts' to which the alleged estoppel relates, and has acted, in good faith, on such belief.
    There can be no presumption of the surrender of an estate, in the absence of anything indicating an intention to do so.
    * Appeal from the general term of the Superior Court of the city of New York’ where a judgment entered upon a verdict in favor of the plaintiff had been affirmed.
    This was an action brought by the widow of Isaac Lawrence, deceased, against the defendant, Brown, for" the use and occupation of the premises Nos. 65 and 651-Canal street, in the city of New York, for the quarter preceding the 1st May 1847.
    The plaintiff was the widow of Isaac Lawrence, who died seised of the premises in question, on the 12th July 1841, having purchased the same in May 1825. In April 1842, the plaintiff filed her bill in chancery for the assignment of her dower, making the heirs-at-law of her late husband parties defendant. On the 23d January 1843, the premises in question, with other real estate, were assigned as her dower in the lands of her deceased husband, by decree of the court of chancery. Brown, the defendant, entered as the tenant of the widow, and continued to pay rent to ber, up to the 1st February 1847.
    On the trial, the defendant offered to prove, that the premises in question were sold on the 2d February 1847, under a surrogate’s decree, for the payment of the debts of Isaac Lawrence; that Joseph Harrison became the purchaser, for $7600 (which sum was the full value of the premises discharged from all claim of dower); that administrator of *Isaac Lawrence executed a deed to the purchaser, and that the defendant
    attorned to said purchaser, and paid him the quarter’s rent sought to be recovered in this suit.'. The defendant also offered to prove, that Isaac Lawrence died insolvent; that such insolvency was known to the plaintiff; that the latter, with the fraudulent design of incumbering certain specific portions of the real estate, with her claim of dower, and to embarrass the title, filed her bill in chancery for the assignment of her dower; that the heirs-at-law did not appear and contest the proceedings, but suffered her to procure to be assigned to herself, more than her one-third part in value of the real estate; and that the plaintiff filed her bill for the assignment of her dower, with full knowledge that the administrator of Isaac Lawrence intended to take legal proceedings for the sale of all the real estate of said Lawrence, for the payment of his debts. That the administrator, on the 11th July 1843, presented his petition to the surrogate for that purpose; that the order to show cause was personally served on the plaintiff, as the widow of Isaac Lawrence; that no cause was shown against the application for the sale; and that on the 2d September 1843, the surrogate made the order for the sale of all the real estate of which Isaac Lawrence died seised, including the parts assigned to the plaintiff for her dower, without noticing in the order any title thereto in the plaintiff; that the administrator sold all the real estate, except the parcels assigned to the plaintiff.
    
      That tbe plaintiff, for the purpose of defrauding the purchasers of the lands assigned to her for her dower, contrived, through a relative, who was a creditor of Isaac Lawrence, to coerce the administrator to sell such lands, under the surrogate’s order; that an order to that effect was obtained, and the administrator advertised such lands for sale; that, thereupon, the plaintiff published a notice, that the said lands had been assigned to her for her dower, and that the sale to be made would be subject to her estate for life therein; to enable herself and ^family to acquire a title thereto, pursuant to such fraudulent design, or to defraud the purchaser at such sale; that, thereupon, the administrator declined to proceed with the sale; that the plaintiff then, through the claim of a creditor of the estate, in which she was interested, caused another application to be made to the surrogate for an order requiring the administrator to sell the lands assigned to her; that a large majority in amount of the creditors opposed the application, and that, thereupon, the surrogate decided that the sale of the said lands, under his order, and the conveyance of the administrator, would convey to the purchasers all the estate of said Isaac Lawrence, free and discharged from all claims of dower, and all estate in dower of the plaintiff, and that the surrogate would set apart one-third of the purchase-money to satisfy the claim of dower of the plaintiff.
    That after such decision, the plaintiff, with full knowledge thereof, and with desire to cheat and defraud the purchasers, urged the sale of the said lands so assigned to her for her dower, and caused copies of the opinion of the surrogate to be circulated, to deceive the purchasers; that the administrator, in pursuance of the order of sale, and under the coercion of the plaintiff, on the 2d February. 1847, sold the lands so assigned to the plaintiff for her dower; that the premises in question in this suit were purchased at such sale by Joseph Harrison, for $7600, the full value thereof, discharged from any claim or estate in dower of the plaintiff therein; that the surrogate confirmed the sale; that the administrator represented at the sale, that a perfect title would be given to the purchasers at said sale, free from all dower and claim of dower of the plaintiff therein, and that the full value of the premises was paid therefor, by the purchaser, under that expectation and belief.
    That after the sale, the plaintiff, in pursuance of her fraudulent design to cheat the creditors and purchasers, represented to the creditors, that the surrogate would invest one-third part of the purchase-money to satisfy her dower, referring them to his decision, *and offering that, if the creditors would deduct the value of her life-estate, she would pay them the residue of the sum they would be entitled to .receive, for an assignment of their demands; that the creditors accepted this proposition, and assigned to the plaintiff and to her agents, their said demands.
    That after the plaintiff had obtained the control of the said demands, in further execution of her said fraudulent design, and to obtain the value of her dower in money, she caused an application to be made to the surrogate, in the name of one of her agents, for all the purchase-money arising from the sale of said premises, and wrote a letter to the surrogate, stating that she claimed an estate in dower for her life, in the premises which had been assigned to her, and waived all right to have one-third part of the purchase-money set apart to satisfy such claim; that the purchasers of the said premises opposed the application, and prayed that the surrogate would invest the purchase-moneys according to law, or require the plaintiff to release her alleged dower in the lands. That the surrogate thereupon decided, that the purchasers had acquired a perfect title to the lands, and that the plaintiff had no dower, or right to dower therein; and that, therefore, the purchasers had no claim to have said moneys invested, and he, thereupon, paid over the whole of the purchase-money to the plaintiff, through her agents; and that the plaintiff had fraudulently induced the persons under whom the defendant claimed, to purchase the premises in question, and by means of said fraud, had secured to herself upwards of $200,000.
    . On the objection of the plaintiff’s counsel, the whole of this offer was ruled out, except the defendant’s attornment to Harrison; and the defendant excepted.
    There was a verdict for the plaintiff, under the direction of the court, for $249.06; and a motion for a new trial having been denied, at general term, and judgment perfected on the verdict, the defendant took this appeal.
    
      '•'Hill, for the appellant.
    Beardsley, for the respondent.
   Paige, J.

The principal question presented on this appeal is, whether by the surrogate’s order directing the sale of the real estate of Isaac Lawrence for the payment of his debts, and the subsequent proceedings had before the surrogate, and the acts of the respondent, the respondent is estopped or concluded from setting up her estate for life in the premises in question, assigned to her for her dower, as against the purchaser at the sale under the surrogate’s order, under whom the defendant claims.

It is insisted by the appellant, that the evidence rejected by the superior court would have authorized the jury to find, that Harrison, the purchaser at the admiri-istrator’s sale, was induced to purchase by the representations of the respondent, that she was to look to the proceeds of the sale for her dower, and not.to the land ; and that the respondent had, since the sale, obtained out of the purchase-money, a full equivalent for her dower; and that her acts were done with intent to defraud the purchasers, and to obtain dower twice out of the estate, at their expense. It is also insisted, that, as the surrogate’s order to sell the whole real estate, did not except the respondent’s interest therein, she is concluded from setting up that interest, upon the principle of rea judicata; and that the proceedings before the surrogate and the acts of the respondent, create an estoppel in pais, and conclude the respondent from alleging that hei interest was an estate in dower, instead of a mere claim of dower. It is also insisted by the appellant, that the respondent affirmed the sale of the premises in question, including her estate therein, by taking the whole of the proceeds of the sale; and that the acts of the respondent amount to a surrender of her estate by operation of law.

In Lawrence v. Miller (2 N. Y. 245), it was held by this court, that the provisions of the revised statutes in rela-^°n **° sa^e rea^ es^e ^eceased persons, under a surrogate’s order for the payment of his debts, do not authorize the sale of the widow’s estate in dower, after dower has been assigned to her. Before assignment, the widow’s interest is a mere claim of dower, which a sale under a surrogate’s order will extinguish.; but after assignment, the widow has a freehold estate in possession, and she is in possession of the seisin of her husband, as of the time when that seisin was first acquired ; her title relates back to the time of the marriage, if her husband was then seised, and if he was not then seised, it relates back to the time when he was first seised. (2 N. Y. 255; Greenl. Cruise, tit. Bower, c. 2, § 34; c. 3, § 24.) By the assignment of dower, the seisin of the heir is defeated, ab initio, and the heir is not considered as having ever been seised. (2 N. Y. 255; Greenl. Cruise, Dower, c. 3, §24.)

It is upon this principle, that Judge Gardiner held, in Lawrence v. Miller, that the widow, after the assignment of her dower, was not entitled to notice of the surrogate’s order to show cause why the real estate of her husband should not be sold for the payment of his debts, and had no right to appear and contest the authority of the surrogate to make an order for such sale. The revised statutes* only authorize the heirs and devisees, and persons claiming under them, to appear and litigate. (2 Rev. St. 101, § 10.) As the widow, after the assignment of her dowser, does not claim under the heirs or devisees, she cannot litigate. If she cannot litigate, and is not even entitled to notice, it necessarily follows, that she cannot be bound by the decree of the surrogate directing a sale of the land assigned to her for her dower. (2 N. Y. 257; 2 Rev. St. 101, § 10.) And this was the conclusion at which Judge Gardiner arrived in Lawrence v. Miller.

If, then, as offered to be proved, the surrogate did, by his order, direct the sale of the whole of the real estate of Isaac Lawrence, including the respondent’s estate for life, assigned to her for her dower in the premises in question, the order or decree, so far as it related to her estate, was *void, and did not bind or conclude her. Although notice of the order to show cause may have been served on the respondent, as she had no right to appear and resist the order for a sale, she cannot be regarded as a party to the proceeding, nor be concluded by the decree of the surrogate. The proposition, therefore, of the appellant, that the respondent is concluded upon the principle of res judicata, cannot be ■ sustained.

Do the proceedings before the surrogate, and the acts of the respondent, create an estoppel in pais, and conclude her from setting up her estate in dower, assigned to her, as against Harrison, the purchaser of the premises in question, under the surrogate’s order ? Did she, by her declarations or conduct, induce Harrison to purchase the premises, and pay the full value thereof, under the belief that he would acquire * perfect title to the same, discharged from all claim for dower, and all estate in dower, of the respondent therein ? To constitute an estoppel in pcis, not only must the respondent have, by her words or conduct, caused Harrison to believe that, by a purchase at the sale, he would acquire a title discharged from her estate in dower, but he must have also acted upon such belief in making such purchase, and in his payment of the purchase-money. (3 Hill 221-2, 219; 5 Denio 157; 6 Ad. & E. 469.) I cannot find in the evidence offered, sufficient to authorize a jury to find that the respondent, by her words or conduct, caused Harrison to believe that he would, by a purchase, acquire a title discharged from her estate in dower, and that he acted on such belief in making the purchase.

It was not offered to be proved, that the respondent, either in person or by her authorized agents, represented at the sale, or to Harrison, or any other person, at any time previously to the sale, that a perfect title to the premises, free from her dower, would he given to the purchasers at the sale. The offer was, that the administrator at the sale represented that, under the authority of the surrogate and of the judgment *pronounced by him, such a title wTould be given. There was no offer to prove that the respondent made any such representation herself, or that she authorized the administrator to make it; or that she was present at the sale and heard it made, without expressing her dissent. There was even no offer to prove that Harrison neard the representation of the administrator, or was informed of it previously to his purchase. It appears, by the offer, that the respondent, instead of declaring that the purchaser would acquire a title discharged from her estate in dower, published a notice, under the administrator’s notice of sale, informing^ the public that the lands advertised for sale had been assigned to her for her dower, and that the sale would be subject to her estate for life therein.

It does not appear, by the offer, that the respondent had any agency in the decision of the surrogate, that the purchaser would obtain a title discharged from her dower, and that her claim of dower must be satisfied out of the proceeds of the sale. She applied for an order requiring the administrator to sell the reversion in the lands assigned to her for her dower, belonging to the heirs, which she, as a creditor of the estate of her husband, had a right to do, and could do, without prejudicing her estate in dower. If she caused copies of the opinion and decision of the surrogate to be printed and circulated, with intent to defraud the purchasers at the sale, there was no offer to prove that one of these copies came to the hands of Harrison, or that he was either deceived thereby, or induced by the same to become a purchaser.

The transactions, after the sale, between the respondent and the creditors, cannot estop the respondent, from setting up her life-estate, as against the appellant. No relation existed between the respondent and the creditors, which disqualified her from purchasing their claims against the estate. If the purchase of such claims was fraudulent and void as regards the creditors, the fraudulent, character of such purchase cannot *aid the appellant nor affect the respondent’s life-estate. The only remedy of the purchaser was an application to the surrogate, to set aside the sale, or a direct proceeding to be relieved from the sale, on the ground of mistake and fraud. The fraud of the respondent was against the creditors; the whole of the purchase-money belonged to them. The respondent, in the purchase of their claims, according to-the offer, induced them to deduct the value of her life-estate, on the representation that the surrogate would invest one-third of the purchase-money to satisfy her dower in the lands. Having effected a purchase, on payment of the balance of the purchase-money, after deducting the value of her life-estate, he claimed her estate in dower for her life, and waived all right to have one-third of the purchase-money set apart to satisfy her claim for dower, ana received from the surrogate, as assignee of the creditors, the whole of the purchase-money. She received the money, however, not in satisfaction of her dower, but in her character of creditor of the estate.

Harrison, undoubtedly, when he made his purchase, relying on the decision of the surrogate, believed that he would acquire a perfect title, discharged from dower; but he, very clearly, was not influenced to make such purchase by any belief that he would acquire such a title, free from dower, caused by the declaration or conduct of the respondent. He has suffered from the error of the surrogate, but not from the misconduct or fraud of Mrs. Lawrence.

The taking by the respondent of the whole of the purchase-money, cannot be regarded as an affirmance of the sale of her estate for life, in the lots in question, to Harrison. • She did not receive the money as an equivalent for, nor in satisfaction of her estate in dower, but expressly in her character of creditor of the estate of her husband. Before she received the money, she notified the surrogate that she claimed an estate in dower for her life, in the premises in question, under the assignment of the same to her, in accordance with *the decree in chancery. The reception by the respondent of the purchase-money, under such circumstances, cannot be considered as an act of affirmance, nor as concluding her from denying that her estate in dower passed, under the sale-and conveyance, to Harrison.

The acts of the respondent under the proceedings of the surrogate, did not amount to a surrender of her estate in dower, by operation of law. The presumption of a surrender arises from the acts of the parties, which are supposed to indicate an intention to that effect; where no such intention appears, or can be inferred oi implied, the presumption cannot be supported. (Van Rensselaer v. Penniman, 8 Wend. 579, per Savage, C. J.; Roberts on Frauds 258.) Here, the evidence offered to be introduced, showed no act of the respondent, indicating an intention to surrender her estate in dower. A surrender of an estate for life or years, to the1 owner of the next immediate estate in reversion or remainder, is implied in law, where an estate, incompatible with the existing estate, is accepted by the lessee, as where the lessee takes a new lease of the same lands, from the reversioner or remainder-man. (4 Kent Com. 103-4; 16 Johns. 28; 6 Wend. 578; Roberts on Frauds 254, 258.) And, it seems, that strictly, a surrender by act or operation of law, exists only where the new estate accepted by the lessee is created in writing; such new estate being created in writing, it is regarded as of equal notoriety as a surrender in writing. (Roberts on Frauds 253-4; 2 Rev. St. 135, § 6.)

The doctrine of surrender of an estate for years, by operation of law, has been applied to cases of a mere restoration, by the tenant, of his possession, to the landlord ; and where the landlord, with the consent of the tenant, grants an estate in the premises to a third person. In such cases, however, there can be no surrender implied in law, without an actual change of the possession. (Nickells v. Atherstone, 10 Ad. & E. (N. S.) 944; Dodd v. Acklom, 6 Man. & Gr. 673, 679.) Here, it does not appear by the evidence offered to be introduced, that the respondent *accepted an estate incompatible with her estate for life, or consented that an estate be granted to Harrison inconsistent with such estate; and the proof shows, that there has been no change of the possession from the respondent to Harrison. The attornment by the appellant to Harrison was absolutely void. (1 Rev. St. 744, § 3.)

I can discover no error in the judgment of the superior court, and am of opinion, that it should be affirmed In this opinion, a majority of the members of this court concur.

Judgment affirmed.

Foot and McCouN, JJ., dissented.  