
    Hale against James.
    Where land is aliened by the husband, the widow’s dower is to be taken according to the value of the land, at the time of alienation.
    If the husband mortgage the land, but continue in possession, and afterwards release the equity of redemption to the mortgagee, the time of the release of the equity of redemption, is to be deemed the period of alienation, at which the value is to be taken, and which is to be estimated without regard to the subsequent improvements made by the purchaser.
    Where it is agreed between the widow and the tenant, that he shall allow her a yearly sum, instead of having the dower assigned to her,according to law, the interest of one third of the value of the premises, at the time of alienation, is the proper measure of the annuity. But where the house and buildings, on the land, constituted the principal value of the premises, a deduction of one per cent, was allowed, as a compensation to the tenant, on account of necessary repairs, and the risk of loss by fire.
    On a bill for dower, costs are not allowed to the dowress, if there has been no vexation, or undue hindrance, on the part of the defendant, to her claim.
    
      DANIEL HALE, being seised of a house and lot in Albany, on the 8th of July, .1814, mortgaged the same to the defendant; but the plaintiff (then the wife of D. JET.) did not join in the mortgage. On the 24th of March, 1817, D. H. being largely indebted, released and conveyed the premises to the defendant, in fee, for the consideration, expressed in the deed, of 12,500 dollars. The defendant took possession of the premises in May, 1819; and D. H. died September 3, 1821, leaving the plaintiff his widow. On the 6th of December, 1821, the plaintiff filed her bill against the defendant, praying that her dower in the premises might be assigned to her according to law, or that the defendant be decreed to pay her an adequate yearly sum, at such periods, and to be secured in such manner, as the Court might direct; and the defendant to pay the plaintiff her costs.
    The defendant, in his answer, filed February 1, 1822, admitted the facts above stated, and accepted the offer of the plaintiff, to be allowed a yearly sum, in lieu of dower; but he submitted, that such sum should be estimated according to the value of the premises at the time of the death of the husband.
    Witnesses were examined, as to the value of the premises, on the 8th of July, 1814, the 24th of March, 1817, and September 3, 1821; and the average of their several estimates of the value, exclusive of subsequent improvements, was, for the first period, 9,600 dollars; for the second, 7,333 dollars; and, for the third, 6,166 dollars; and the average of their estimates of the yearly rent, was 275 dollars.
    
      F. J. Munro, for the plaintiff*.
    25. Wilkes, for the defendant.
   The Chancellor.

The main point in the case is, at what time the value of the premises is to be computed. The plaintiff contends, that the value is to be estimated at the time of the alienation of the premises by her husband to the defendant, by way of mortgage, on the 8th of July, 1814; and if not at that time, then at the time of the release of the equity of redemption, on the 24th of March, 1817. The defendant insists, that the value of the premises depreciated between the last period and the death of the husband, on the 3d of September, 1821, and that the value ought to be taken as existing at his death.

It was declared by the Supreme Court, in Humphrey v. Phinney, (2 Johns. Rep. 484.) to be the rule of law, that the widow was not entitled to dower, according to the improved value of the land, in case of alienation by the husband, but must take her dower according to the value at the time of the alienation. This was the old doctrine of the common law, and the case in 17 H. III, is cited in Fitz. Ab. tit. Dower, s. 192. for the rule, that the wife shall have her dower, without the improvements made by the purchaser from the husband. So, in Perkins, tit. Dower, s. 328. referring to the same place in Fitzherbert, it is stated, that if the husband enfeoff a stranger, who improves and makes the land more valuable by the year, the wife shall not have her dower, but according to the value it was at in the time of the husband.” Again, the rule is stated by Sir Matthew Hale to be, that the heir is not bound to warrant, except according to the value, as it was “ at the time:of the feoffmentand the wife cannot recover against the feoffee more than he could recover in value against the heir. (MSS. of Sir Matthew Hale, cited by Mr. Hargrave, note 193. to Co. Litt. 32 a.)

Where thehnsband alienes land, the widow’s dower is taken according to the value at the time of alienation.

These old authorities refer to the time of the alienation by the husband, for the true period at which to estimate the value. There can be no doubt of the meaning of these cases; and if the land has, subsequently, by improvements, increased in value, the wife cannot recover against the feoffee more than the value at the time of the feoffment, or at the time of the husband, because the feoffee cannot recover on his warranty more by way of indemnity against the heir. The rule is founded in sound policy, and does not discourage the purchaser from making improvements.

If the husband dies seised, the heir may assign the dower when he pleases; and if he neglects it, and improves the land by cultivation or buildings, before the assignment, it is his own voluntary act, with knowledge of his rights ; and the widow takes the value, in that case, as it is at the time of the assignment. The rule is fixed and steady; and whether the land be improved in value, or whether it be impaired in value, in the time of the heir, the endowment is still to be according to the value at the time of the assignment. (Co. Litt. 32 a.) And why should not the rule be equally fixed in the present case ? The purchaser ought not to be exclusively entitled to his election, to take the time from the alienation, or from the husband’s death, as may best suit his interest. It would be very unreasonable, to give that election to the purchaser, and deny any choice to the widow. The rule, to be equal and just, must he mutual. If the purchaser is entitled to take the period of the husband’s death, when the land has depreciated since his purchase, the widow ought to be entitled to take the same period, if the land had risen in value. It is not to be supposed, that the period can be ambulatory, at the choice of the purchaser, and that, the widow shall have no choice in the case. But there is no colour in the books for the suggestion, that the time is unsettled, and depending on the volition of either party. It may suit the interest of the defendant, to take the period of the husband’s death, in this particular case ; and, perhaps, in the very next case that arises, it might equally suit his interest to take the period of the alienation, for the estimate of the value. The rules of law are, however, not subject to such alternation; and it is settled, from time immemorial, and on principles of justice and sound policy, that the value of the dower, in case of alienation by the husband, is to be taken at the time of the alienation, and not subsequently, and the rule is not to be disturbed to suit the views of one party.

If the husband dies seised, the widow takes her dower, at the value at the time it is assigned to her by the heir.

It might, possibly, be made a question, whether the widow is entitled to the advantage of any increase in the value of the land by extrinsic causes, and not from actual improvements, or whether she was still to have one third of the rents, or one third of the land, or whether the quantity of each was to be reduced to the value at the time of alienation. Suppose a valuable mine of coal or ore, or a valuable spring of mineral or salt water, should be discovered on the land, subsequent to the alienation ; or suppose some revolution in commerce, or some great internal improvement, as the line of a canal for instance, should suddenly increase the land in the hands of the purchaser a hundred fold, would the widow take her dower at this increased value ? I state these points, without giving any opinion upon them, for they do not arise in this case; and a very little reflection on the subject would teach us, that thejrule, as it stands, is the most favourable to the purchaser. Take one case with another, the land is more likely to increase than to diminish in value, because, land is almost every where, in this country, in a state of rapid improvement; and the widow would be the gainer, in most cases, over the purchaser, if we had it in our power to dislocate the rule of computation, and transfer it from the time of alienation to the time of the husband’s death.

Whether the widow is entitled to the advantage of an increase of value arising from extrinsic causes, as the discovery of a mine, &c.

The next question is, whether we are to take the date of the mortgage, or of the release of the equity of redemption, as the period of alienation, within the meaning of the rule.

If the husband mortgages the land, afterwards,releases the equity of redemption, the time of the release is the time of alienation, when the value, as to dower, is to be taken.

The husband, in this case, retained the possession until after the release of the equity ; and a mortgagor in possession is regarded by this Court as the owner of the estate, anc^ as dying seized, in respect to the dower of his wife, in case he dies before entry or foreclosure by the mortgagee. I have no difficulty, therefore, in taking the time.ofthe re-Iease as the period of alienation, from which the value of ¿|)e dower is to be computed.

Taking, then, the 24th of March, 1817, as the true period, the average value of the premises, on that day, may be estimated at 7,333 dollars, exclusive of the subsequent improvements. The interest of one third of that sum is 171 dollars 10 cents; and that would appear to be the proper assessment, if the defendant is to pay (as he assents to pay) an annuity, instead of submitting to an assignment of one third of the realty by metes and bounds. Why should not the interest upon the one third of the actual value of the premises at the time of alienation, be the measure of the annuity ? I do not know that there can be a more just and certain rule by which we can ascertain the amount of the annuity. When an estate is sold under a power in a will, or by order of this Court, and the widow consents to join in the sale, and take the value of her dower out of the purchase money, she takes either a gross sum . liquidated by the value of her life, according to the tables of life annuities, or she has the interest of one third of the purchase money secured to her for life.

Where the tenant,instead of assigning do"'er’ c0“" sents to pay an annuity, the interest of one third of the time of ahenation, is the proper measome^deductl0l\ 18 to, be there are pairs^ and'risk against loss by

_ But it is suggested, that there ought to be an abatement in the amount of the annuity, on account of necessary repairs, and the risk by the defendant of destruction, or the expense of the premium of insurance of the dwelling house. Some deduction from the annual amount of the annuity would seem to be reasonable; for suppose that, instead of the commutation assented to in this case, the plaintiff had chosen to have part of the dwelling-house and yard assigned her, would she not have run the risk of loss of her enjoyment of the buildings by fire, and would she not have been responsible for permissive waste, and so far bound to contribute to reasonable reparations ? The difficulty consists in ascertaining what rateable deduction ought to be made. There is no certain ratio to be prescribed. If one per cent, be deducted from the annuity, I should suppose it to be a reasonable and sufficient deduction. Instead of seven per cent, on the one third of the value, take six per cent., and that will reduce the annuity to 146 dollars 66 cents. This leaves a yearly allowance of 24 dollars and 44 cents, for reparations and risk.

The remaining question is, as to costs. When the heir, or purchaser, throws no impediment in the way of the widow’s claim, costs are not given to her. If the defendant sets up any unfounded pretence, so as to create a vexatious resistance, the rule is to give the dowress costs, but not otherwise. The rule was so declared in Lucas v. Calcroft, (1 Bro. 134. Note to 1 Ves. & Bea. 20. S. C.) In Curtis v. Curtis, (2 Bro. 620.) the Master of the Rolls observed, that the dowress has no costs where the heir has thrown no difficulties or impediment in the way; and if he admits the widow’s case, he is safe. In Morgan v. Ryder, (1 Ves. & Bea. 20.) the Master of the Rolls gave costs, because the widow had, without any just pretence, been vexatiously kept out of her dower by the heir. The same principle as to costs on a bill for the assignment of dower, was adopted by this Court, in Hazen v. Thurber; (4 Johns. Ch. Rep. 604.) and again, in Genet v. Genet, decided on the 7th of Feh-uaryl^ast; and in both of these cases, costs were denied, because no vexation or undue hindrance of the claim, was shown,or proved.

low’d on^biii f°r d°wer> if tnerc tuts been no undue bincUdm,e on the fondant*6 de"

The answer of the defendant admits the plaintiff’s right to dower, and denies that he ever refused to assign to the plaintiff her dower according to law; and he accepts the offer of the plaintiff made in the bill to pay annually, and to give sufficient security for the annual payment of an adequate sum in lieu of dower. But in a negotiation between the defendant and the son and agent of the plaintiff, respecting the amount of such annuity in lieu of dower, the parties differed. The plaintiff insisted, that the annuity should be computed according to the value of the premises at the time of the alienation, and the defendant contended that the sum should be estimated according to the depreciated value of the premises, at the death of the husband ; and under that difference of opinion, the suit was instituted. The defendant was clearly in an error as to the data upon which the annuity was to be computed; but the commutation in lieu of dower was, altogether, a matter of agreement and consent between the parties, and there is no evidence, that the defendant has thrown any impediment in the way of the plaintiff’s title and right of dower, if she had chosen to have her dower duly assigned to her accord-lag to law. On the contrary, he admits her right, and denies he ever. refused to assign dower, in case it had been duly demanded. All that he did, was to insist upon certain terms, which were inadmissible, when the parties treated with each other on the ground of compromise, and endeavoured to settle the principles of the commutation. If the plaintiff had then demanded her dower to be assigned, and he had made resistance, and compelled her to resort to this Court, the case would have had a just foundation for costs. As il is, I do not think the plaintiff has brought her claim for costs, within the doctrine of the cases on the subject.

The plaintiff, by her bill, offers to accept “ of an adequate sum yearly, in lieu and bar of her dowerand the defendant accepts the offer “ to pay annually, and to give Sufficient security for such annual paymentand I cannot require, as has been suggested on the part of the plaintiff, that the payments should be quarter yearly.

I shall, accordingly, declare, that the value of the dower is to be computed from the time of the alienation, on the 27th day of March, 1817, and that the defendant pay, annually, from the 3d day of September, 1821, to the plaintiff, during her life, 146 dollars and 66 cents, and give, adequate security for the payment, to be approved of by a master, and that no costs be charged by either party against the other.

Decree accordingly.  