
    Mary Ann Robinson, Pl'ff, v. Robert Govers, Ex'r, et al., Resp'ts.
    
    
      (Court of Appeals,
    
    
      Filed June 6, 1893.)
    
    
      t. Abatement and bevivob—Code Civ. Pbo. , § 763.
    Section 763 of the Code, providing for the entry of judgment where a party dies after verdict, does not apply to a case where the cause of action abates by the death of the plaintiff.
    3. Same —Doweb— Confibmation of bepobt.
    Plaintiff brought action to recover dower and filed a consent to accept a gross sum. A verdict was rendered in her favor, and on motion for confirmation and for admeasurement defendants asked leave to pay a gross sum, to ascertain the amount of which a reference was ordered. The referee reported and the court handed down a decision in writing confirming the same and disposing of the question of costs, but the order thereon was not entered until two hours after plaintiff died. Held, that the proceedings had reached such a stage before plaintiff’s death as to vest in her a right to the money representing the value of her estate in the land, and this right passed to her executor.
    (Andrews, Oh. J., dissents.)
    Appeal from order of the supreme court, general term, first department, reversing order granting leave to plaintiff’s executor, Henry Mottet, to continue the action, and amending and denying defendant’s motion to vacate a prior order in the same matter.
    
      Austen G. Fox, for app'lt; Gratz Nathan, for resp't.
    
      
       Reversing 48 St. Rep., 861; 51 id, 802.
    
   O'Brien, J.

The court, at special term, in this cáse, after the death of the plaintiff, in an action to recover dower, made an order directing that the action be continued in the name of the executor, and that the money which she was to receive in lieu of dower be paid to him. The general term has reversed the order, holding virtually that the action has abated by the plaintiff’s death. We agree with the learned general term that § 763 of the Code has no application to the question. That applies to cases in which the cause of action survives, and unless the order appealed from can be questioned upon some other ground it should stand. The widow’s estate in dower in the lands of her husband terminates at her death, and in an incomplete proceeding for admeasurement there would be nothing for the court to act upon after the plaintiff’s decease. The real question here, however, is whether the plaintiff, at the time of her death, was vested with the right to a sum of money in lieu of dower which passed to her executor and could be claimed by him. In determining that question the various steps taken by both sides in the progress of the action up to the time of the death of the plaintiff become important. The husband and wife had lived separate for some time before his death, and she was in receipt of a stipulated allowance in money from his property, which was paid to her up to the time of her death. Under the husband’s will his collateral relatives took the real estate subject to the widow’s dower. She brought this action to recover it and filed her consent to accept a gross sum under- the provisions of the Code. § 1617.

The defendants were the executor and trustee and the devisees under the will, and they having answered, the issue was tried before the court and a jury, October 22, 1891, and a verdict rendered that the plaintiff was entitled to dower. The plaintiff moved for an interlocutory judgment upon the verdict and an inquiry whether there ought to be admeasurement or a sale. At the same time the defendants moved, under § 1618 of the Code, for leave to pay the gross sum in lieu of dower. The court ordered a reference to ascertain the sum to which the plaintiff would be entitled as the equivalent of her estate in the lands, and the referee made and filed his report that the plaintiff was entitled to a sum of money therein specified as the value of her dower interest. A motion to confirm this report was argued and submitted to the court on the 30th day of January, 1892. On the 15th day of February, 1892, the court decided to confirm the report, and its decision was expressed in the form of an opinion in writing. This decision gave to the plaintiff a specified sum of money as the value of her dower, and disposed of the question of costs between the parties. The formal order embodying this decision was not prepared Bind signed by the judge presiding, and who made the decision, until February 18, 1892, at thirty minutes past two o’clock in the afternoon of that day, when it was immediately entered. The plaintiff died on the same day, at ten minutes past twelve, two hours and twenty minutes before the order was signed and entered. Had the order been entered at any time before the moment of the plaintiff’s death, it is not suggested that there would then be any question as to the right of her next of kin or executor to demand and receive the money. By the plaintiff’s consent filed, and the motion to the court by defendants for permission to pay a gross sum, all parties virtually assented that the plaintiff’s interest in the lands of her husband should be satisfied and discharged by the payment to her of a sum of money. " The plaintiff had consented to receive it. The defendants, by their motion to the court, had expressed their willingness to pay it, and nothing remained to be done except to ascertain the amount or the exact sum which would represent the value of the plaintiff's interest. This involved an inquiry as to little more than two facts, namely, the plaintiff’s age and the value of the whole property. The referee’s report fixed the sum to which the plaintiff was entitled. True, it was not operative or final until confirmed. But it was confirmed. The necessary judicial action to accomplish that result was had. The decision was expressed in writing, and it had all the certainty of a formal judgment. The formal order entered is but the evidence of the decision or judgment, and not the decision itself, which must always precede the entry of the order. The entry of a formal order may have been necessary for the enforcement of the right, but the right itself, that is to say, the plaintiff’s right to demand and receive a certain sum of money in lieu of dower from the defendants, or from the land, was established and declared when the court delivered its decision of the questions before it in writing. The claim or right thus acquired was capable of transmission or transfer when judicially ascertained and determined, and the fact that the formal order, which is required by rules of practice to be signed and entered as evidence of the action of the court, was not so signed and entered till after the moment of her death, did not defeat the right which resulted from such judicial action. When the court had decided to confirm the report of the referee the plaintiff was vested with the right to the sum of money therein specified, and the delay in entering upon the records the formal expression and evidence of that decision did not affect the right, though it might affect the remedy for its enforcement. The material fact is, that before the death of the plaintiff the court had acted upon the case and adjudged what her rights were. What remained was mere formality, and not matter of substance. If the clerk of the court, or her attorneys, failed to place upon the records of the court, before her death, the formal evidence of its action which conferred the right, that may in equity be regarded as done at the time the decision was made. For the purpose of computing the time to appeal, or making an appeal, the decision of the court must be made to assume the form of a judgment or order in the technical sense of these' terms, Knapp v. Roche, 82 N. Y., 366; but when the right to money in lieu of dower depends upon the confirmation of the report of a referee, as in this case, that may be regarded as done at the time the decision was actually made, as then the party acquired the right to have the order entered. The proceedings had reached such a stage before the plaintiff’s death as to vest in her a right to the money representing the value of her estate in the land, and this right passed to her executor. Fulton v. Fulton, 8 Abb. N. C., 210; McLaughlin v. McLaughlin, 22 N. J. Eq., 505-512; Mulford v. Hiers, 2 Beas. Ch. (N. J.), 13-15; Livermore v. Bainbridge, 49 N. Y., 128, 129; Mackay v. Rhinelander, 4 Johns. Cas., 410.

It follows that the order of the general term should be reversed and that of the special term affirmed, with costs.

All concur, except Andrews, Ch. J., dissenting.  