
    Jenette Nelson, Resp’t, v. Roswell E. Brown, Impleaded, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 9, 1892.)
    
    Will—Provision ra lieu op doweb.
    One N. died leaving a will, the second clause of which read, “ I here1 y devise and bequeath unto my wife J. the use, income and profits of all my
    
      real estate during her natural life, to be enjoyed, accepted and received by her in lieu of dower, and in addition to what interest she would have as doweress if this devise was not made to her.” Held, that there was no intention to abrogate the force of the express provision; that the subsequent words at most were intended only as descriptive of what had already been given, and, therefore, that J., having accepted the provision and devise made for her by will, could not recover dower in certain of the property sold at foreclosure sale.
    Appeal from a judgment entered in Herkimer county on April 4, 1892, with notice of intention to bring up for review the interlocutory judgment, entered in' said county on 12th October, 1891, upon the decision of the court at Herkimer special term September, 1891.
    The action is brought by the plaintiff as the widow of John Nelson to recover dower in 273 acres of laud in Herkimer county of which John Nelson died seized. The defgnse is that Nelson left a will in which he made a provision for his wife in lieu of dower, which she has accepted. It was decided at special term that the plaintiff was entitled to recover, and commissioners for admeasurement were appointed. Upon their report final judgment was entered.
    
      S. W. Petrie, for app’lt; C. J. Palmer, for resp’t.
   Merwin, J.

John Nelson died on the 22d March, 1889, leaving a will which is dated December 16, 1875, and three codicils thereto attached, which are dated February 1, 1881, May 28, 1881, October 31, 1881. The will and codicils were duly proved on July 1, 1889. By the first clause of the will, the testator appointed his wife and his son George his executors, and directed them to pay all his debts. The second clause was as follows : “ I hereby devise and bequeath unto my beloved wife, Jenette Nelson, the use, income, profits, rents and profits of all my real estate during her natural life, to be enjoyed, accepted and received by her in lieu of dower, and in addition to what interest she would have as doweress if this devise was not so made to her.”

By the third clause his son George was given the fee of a farm of 326 acres “ to be taken, held and received by him after the death of his mother, and the termination of her life estate therein as before given and devised.” By the fourth clause the testator devised a farm of about 275 acres, called the Churchill farm, to a trustee in trust for his son Walter and his children, the trustee to have possession at the death of the testator’s wife. He then gave pecuniary legacies to the amount of $10,000 to be paid from the personal property, if sufficient, and any deficiency to be a charge upon the lands given in fee to George Nelson, and if the personal was more than enough to pay the debts and legacies, the balance the testator gave to his wife. By the last clause he gave to his wife a life estate in the house and lot owned by him in Little Falls, and at her death devised the same to his grandchildren. By the first codicil, he devised to his son George the half of the Devendorf farm, he had that day purchased, charging it with the payment of certain sums for the benefit of his grandchildren. The second codicil related to the stock on the Churchill farm. By the third codicil he made provision for the payment from his personal property of the balance of the purchase money of the half of the Devendorf farm.

On the 5th January, 1884, John Nelson executed and delivered to Jacob A. Churchill a mortgage on the Churchill farm in the sum of $10,000 payable within five years. The plaintiff did not sign this mortgage. It was recorded on January 11, 1884, and on the 23d February-, 1889, was duly assigned to Letitia Howard, who in March, 1890, commenced in the supreme court an action for its foreclosure. The parties defendant in that action were Churchill, who had guaranteed the mortgage, the present plaintiff and the trustee and those interested in the trust under the will of John Nelson.

In the complaint no reference was made to the rights of Mrs. Nelson except the general allegation that the defendants other than Churchill “ have, or claim to have, some interest in or lien upon the said mortgaged, premises, or some part thereof, which interest or lien, if any, has accrued subsequently to the lien of the said mortgage.” Judgment was demanded in the usual form in foreclosure. Mrs. Nelson was served with the summons and complaint, but did not appear or answer. The other defendants except Churchill appeared and answered, denying the execution of the mortgage, and alleging that John Nelson was at the time of unsound mind, and that there was no consideration for the mortgage. The issues so joined were brought to trial at special term December, 1890, and were decided in favor of the plaintiff therein, and the usual judgment of foreclosure was ordered. One of the findings of fact in the decision was “ that under and by virtue of the last will and testament of said John Nelson, deceased, the defendant, Jenette Nelson, is entitled to a life estate in the mortgaged premises, in addition to her dower therein as widow of said John Nelson, deceased.” One of the conclusions of law was that “ the plaintiff is entitled to the usual decree of foreclosure and sale against all the defendants, subject to the dower of the defendant Jenette Nelson.” The judgment that was entered provided that the premises be sold subject to the dower therein of the defendant Jenette Nelson.” Upon this judgment a sale was made on the 7th March, 1891, by the referee named therein, and the premises were bid off by Letitia Howard for $10,350. In his report of sale the referee states that be sold the mortgaged premises, but nothing is stated as to whether or not he sold subject to the dower of Mrs. Nelson, nor is there anything stated on that subject in the deed given by the referee to the purchaser. In terms the deed conveys “ all the right, title and interest of John Nelson as the same vested in him on the 11th day of January, 1884.” The report of sale was duly confirmed on 14th March, 1891. On the 20th April, 1891, Letitia Howard by quit claim deed conveyed the premises and all her right, title and interest therein to the appellant Roswell E. Brown. In this deed no reference is made to the foreclosure deed or to the dower right of Mrs. Nelson.

Nelson at his death was the owner of the real estate referred to in the will and the first codicil, and there was no incumbrance on any of the lands except the mortgage above referred to. At his death the plaintiff took possession of all the property left her by the will, and has since then had the use of all the real estate except that upon the 20th April, 1891, the defendant Brown took possession of the Churchill farm under the deed to him from Letitia Howard. The present action to recover dower in that farm was commenced on 22d June, 1891.

The questions upon this appeal are (1) whether the defendant, Brown, is estopped by the provision in the foreclosure judgment from denying the right of the plaintiff to recover dower, and if not, then (2) whether the provision in the will is in lieu of dower.

1. In the foreclosure action the widow did not appear. There-was no issue upon the subject of her dower. A judgment against her in such a case would not bar her paramount right if she had one. Ocumpaugh v. Wing, 12 Week. Dig., 566 ; Lewis v. Smith, 5 Seld., 502; Merchants' Bank v. Thomson, 55 N. Y., 7; Payn v. Grant, 23 Hun, 134. In the Merchants’ Bank case it is said r A person claiming dower by title paramount to the mortgage cannot be brought into court in such a suit to contest the validity of dower. The position is the same as if she had not been made a party to the foreclosure action.”

If the judgment, had it been against the plaintiff, would not have barred her right, she cannot claim it to be a bar in her favor. The operation of estoppels must be mutual. Freeman on Judgments, § 159; 1 Gr. Ev., § 524; Brower v. Bowers, 1 Abb. Ct. App. Dec., 219; Van Camp v. Fowler, 41 St. Rep., 80,83, affirmed 133 N. Y, 600 ; 44 St. Rep., 930.

How the finding on the subject came to be made in the foreclosure action does not appear. Aside from the provision in the findings and judgment, there is nothing in the case that estops the appellant from denying plaintiff’s claim. The will is set out by plaintiff in her complaint. The foreclosure proceedings are also-therein referred to as indicating the position of the defendant, Brown, but there is no allegation or claim of any estoppel. As the case stands, we think that, none is shown to exist available to the plaintiff in this action.

2. Did the testator intend to give his wife the use for life of all his real estate in lieu of dower, or in addition to dower? This is to be determined from the- will itself and such surrounding circumstances as may be properly taken into account. He was apparently then the owner of two farms and a house and lot. He was 70 years old, and was married to plaintiff in 1829. By the clause in question, there isa very definite devise in lieu of dower, but the expression is added, “ and in addition to what interest she would have as doweress if this devise was not so made to her.” Does this destroy the effect of the absolute expression just preceding ? The last expression carries the idea that as the devise is made in the form it is, the widow gets nothing as doweress, but that she will in fact get a greater interest than her dower would be. In this view the latter expression may be deemed a statement of the nature or extent of the gift, and in that way a meaning be given to it not inconsistent with the words, “ in lieu of dower.”

The contention of the plaintiff would require us to disregard entirely the expression “ to be enjoyed, accepted and received by her in lieu of dower.” This should not be done unless the intent of the testator very clearly appears to that effect. An express and positive devise cannot be controlled by subsequent ambiguous words. 2 Wms. Exrs., 6 Am. ed.,_1168, note m.,rule'12. A devise of a life estate in the whole in addition to dower is unusual in its character, and there is nothing in the present case to indicate that the testator had-any reason to make a devise in that form, or that would make such a devise probable.

In the cases apparently relied on by the plaintiff, there were no express words stating the devise to be in lieu of dower.

In this case it seems to me that it cannot be said that there is any intention to abrogate the force of the express provision, and that the subsequent words at most were intended only as descriptive of what had already been given.

It follows that the plaintiff cannot recover dower, as it is conceded that she accepted the provision and devise made for her by the will.

Judgments reversed, and a new trial ordered, costs to abide the event.

Martin, J., concurs; Hardin, P. J., not acting.  