
    Henry C. Howell, Adm’r, App’lt, v. Allen G. Newman, Ex’r, et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 13, 1891.)
    
    Dower—Unless a doweress assert her right in some form during HER LIFE IT DOES NOT SURVIVE HER.
    Where a widow assigned her dower and right of dower and died without taking any proceedings in any form to recover dower, Held, that neither her assignee, nor the personal representatives of such assignee, could maintain an action either to enforce a lien therefor or to admeasure the same or to recover a sum in gross in lieu thereof.
    Appeal from order dismissing complaint on the pleadings anc directing exceptions to be heard in the first instance at genera term.
    
      James M. Lyddy, for app’lt; John J. Davenport and A. B. Tap pan, for resp’ts.
   O’Brien, J.

This is an action for the recovery of dower righ brought against the estate of and beneficiaries under the will o the late Thomas Gardiner, by the plaintiff, as the personal repre sentative of the assignee of such dower right.

The widow and doweress by deed dated the 18th of Octobei 1888, assigned her dower and right of dower to Sallie A. Howel plaintiff’s intestate, who subsequently died August 7, 1889, an< this action was commenced after her death, October 5, 1889. H action for admeasurement in any shape was brought in the life time of Emma Gardiner.

The sole ground upon which the complaint was dismissed wa that an action for dower commenced after the widow’s death wi not lie. If this ground is well laid it- is unnecessary to discuss th other questions raised upon this appeal as to whether or not th will creates a trust estate incompatible with dower and therefoi compelled an election by the doweress.

A consideration of the character of the action itself will dete: mine whether, or not, after the death of the widow, it can 1 maintained.

The judgment upon the allegations of the complaint asked f< is “ that the plaintiff have dower of all the testator’s lands, an that the same be set off and admeasured,” and in the alternate “ that a gross sum be decreed.”

It will thus be seen that the present action is not a proceedir under the Code by the widow for dower assigned or for damages f< withholding dower, but is an action to admeasure dower. T1 judgment to be entered in such an action is that provided l § 1613 of the Code, which authorizes judgment awarding tl widow during her natural life actual possession of a certain portic of the property, or that she be paid a certain sum annually du ing her life, and that damages may be awarded her for withhol ing dower.

Whatever doubt may have existed at common law as to ti right to assign, it has been settled in this state that a widow dower right, although not admeasured, is an absolute right which is assignable. Pope v. Mead, 99 N. Y., 201; Payne v. Becke 87 id., 153. While, therefore, the assignment made by Emma Gardiner to Sallie Howell of her dower right, if any existed, was valid, it still remains to be determined what effect the death of Mrs. Gardiner had upon such right prior to its being admeasured.

Authorities can be cited for the maintenance of an action to admeasure dower, brought by the assignee. But in all the cases it will be found that such right was recognized and enforced only during the lifetime of the widow.

In Kyle v. Kyle, 67 N. Y., 407, it is said by the Revised Laws, 1 Rev. Laws, 60, § 1, she might prosecute at any time in her life.”

The dicta to be found throughout the opinion in this case will show that the court was of opinion that such an action could Dnly be maintained during the lifetime of the doweress. In the case of McKeen v. Fish, 33 Hun, 30, affirmed in 98 N. Y., 645, is i direct authority against the appellant’s contention. In that case he appellant’s testatrix commenced an action to have her rights )f dower determined. A reference was ordered, and before any nterlocutory judgment was entered the widow served a consent n writing agreeing to receive a gross sum in lieu of dower.

Subsequently, and while the action was still pending and prior 0 the determination thereof, she died. The trial proceeded, and ubsequently the referee found and reported a state of facts that rould have entitled the widow, had she been living, to some right f dower. Davis, J., in the course of the opinion, says: “Weare f opinion that at the time of the death of the plaintiff’s testatrix, er action, notwithstanding the filing of the consent, had not iached a state or condition in which she was entitled to claim a ested right to a gross sum of money, equal to the value of her ower in the property or any part thereof. A different state of lings might exist if her right of dower had been determined and íe proceeds in the action had reached a stage in which the court ad adjudged that a sale of the premises be made. * * * Un1 it has been determined whether a parcel or parcels will be set $ the widow or a sale ordered and the value of her life inter-it invested and paid to her, after she is adjudged to be entitled dower, her right; beyond mesne profits, remains a mere naked id inchoate life estate and terminates on her death.” This is a rect authority which in no way conflicts with the cases cited by e appellant as authorizing an action by an assignee for allotment dower, for upon examination the latter will all be found to be ses where actions were brought during the lifetime of the dow.

Emma Gardiner, the widow in this case, having died before the mmencement of this action, the period during which a distinct reel of the property could be laid by, or a sum in lieu thereof, d expired, and in the absence of statutory provision authorizing s action it must be deemed to have abated on her death. It is ar, therefore, from the authorities that the claim to dower as re asserted is not a lien upon the testator’s land, and the widow ping died without action, neither her personal representatives nor the. personal representatives of her assignee can assert any such claim or maintain an action either to enforce a lien or admeasure or recover a sum in gross in lieu thereof.

The right of the doweress, therefore, not having been asserted in some form during her lifetime, does not survive her. The exceptions taken by the appellant upon the trial must, therefore, be overruled and judgment, ordered in accordance with the direction of the trial judge, in favor of the defendants, dismissing the complaint, with costs and disbursements to each of the respondents.

"Van Brunt, P. J., and Daniels, J., concur.  