
    FULTON v. FULTON.
    
      N. Y. Supreme Court, Third Department, Fourth District; Special Term,
    
      October, 1879.
    Again, Third District, January, 1880.
    Doweb.—Abatement by Death afteb Obal Decision.
    The death of the widow, after the oral announcement of the decision of the court in her favor, in her action to recover a gross sum in lieu of dower, will not abate the action nor alter the rights of the parties; and the court will order findings to be signed and judgment entered nunc pro tunc.
      
    
    This was an action brought in April, 1879, by Susan Fulton, the widow of Alexander Fulton, deceased, against Melvin Fulton and others, to recover the value of her dower interest in the lands of her deceased husband, under chapter 717, Laws of 1870, she electing to take a gross sum in lieu of dower, and instead of the benefits contained in the will of her husband.
    At the beginning of the action she filed her consent, which was duly acknowledged and recorded, to accept such gross sum in satisfaction of her -dower interest. Th§ action was brought against all of the heirs at law and devisees and legatees under the will. Default was made by all, except the executor, who, by his answer, contested the necessity of a sale, and asked affirmatively a construction of the will, to determine the extent of her rights, and how far her election barred all the benefits of the will.
    At the October special term, held in St. Lawrence county, 1879, Justice Potter presiding, the formal proof in such cases was made as to the defaulting defendants, and the proper proof in relation to a sale; and at the close of the argument, the court directed judgment for the plaintiff upon all of the issues, providing that a sale of the premises should be had, and the costs of the parties and a sum in gross for the plaintiff’s dower interest, to be computed upon the principles of life annuities at her then age, be paid out of the proceeds of the sale, and the remainder paid over to the executor, who had a power of sale in trust, for the purposes of his trust. No findings were drawn at the time, the decision being purely oral, the delay in the drawing and signing of the findings being occasioned by the engagements of the counsel on both sides. Within a few days of the trial' the plaintiff suddenly died, and the executor’s counsel declined to assent to the findings being signed, claiming that the action had abated. Thereupon plaintiff’s counsel moved at the Saratoga special term in January, 1880, before the same justice, for an order directing decision and judgment to be signed and entered nunc pro tunc.
    
    
      Leslie W. Russell, for the plaintiff.
    The case having been tried and all questions determined by the court, the written decision was simply formal, and merely evidence of what had been passed upon and determined. The oral decision is the thing of substance, and it is the policy of the law to preserve the rights acquired by such decisions, even though but for it the cause of action would abate. If, upon announcement by a jury for the plaintiff, in an action for assault and battery, the plaintiff should suddenly be stricken down by heart disease before entry or verdict, it could not be said that the manual recording, a mere formal act, was essential to the retention of that verdict (Code Civ. Pro. §§ 731, 722, 723, 724, 763, 764; Harrison v. Simons, 3 Edw. Ch. 394; 2 Brown Ch. Pr. 694; 1 Newland Pr. 666; 1 Hoffm. Pr. 390, 391; 2 Equity Cases Abr. 279; Finch, 169; West, 675, 676; Ryghtmyre v. Dunham, 12 Wend. 245; Spaulding v. Congdon, 18 Id. 543). After decision, plaintiff’s death works no change in the eye of the law (Springstead v. Jayne, 4 Cow. 423; Scranton v. Baxter, 3 Sandf. 660). Judgment may be entered nunc pro tunc where the parties are hung up by the death of a party (Diefendorf v. House, 9 How. Pr. 243; Lake Ontario Co. v. Marvine, 18 N. Y. 587). And an appeal may be taken in the name of a dead man (Wood v. Phillips, 11 Abb. Pr. N. S. 1). The argument of counsel for defendant, that dower ceases and therefore action abates, applies equally to death after judgment, and confounds the old action of dower for use of lands with the proceeding for the payment of a gross sum in lieu of such use, which the widow becomes entitled to by her recorded consent accepted by the court, in ordering a sale and satisfaction (L. 1870, c. 717). Her personal representatives become entitled to the fund allowed her (Paul v. Paul, 36 Penn. Bt. 270; Unangst v. Kraner, 8 Watts & S. 391). The record of the court being therefore incomplete, and the right to a gross sum, once determined, having not abated, we ask that the court put on the record what it did do, as of the time it did it.
    
      A. X. Parker, for defendant.
    The widow having died, her dower interest ceased, because it was dependent upon her life. Her interest was not preserved to her representatives, because until sale the amount of it could not be ascertained, and it is then determinable upon the amount of the net proceeds and her then age. The preservation of actions after decision, where before the cause of action would abate, applies only to recorded decisions and judgments. No reported case allows the value of anything for dower interest until the actual assignment of dower.
    
      
       There is some diversity of opinion in the courts of other States, on the question whether the annuity tables by which the value of life estates are computed are conclusive, or whether the court may take extrinsic evidence as to the character and condition of the life in question, and consider any unusual probability of longevity or otherwise. To take an extreme case for illustration, let it be supposed that a widow suing for dower, whose probability of life according to the tables is ten years, has long been, in point of fact, of feeble and precarious health, and at the time of the hearing is, in the opinion of competent physicians, lying at the point of death. Should the court in such a case, or any cases where the facts show a substantially less or greater apparent probability of life than the average presented in the tables, act upon this evidence and adjust the valuation accordingly. See the cases collected in Abb. Trial Ed. 734, note.
    
    
      
       See Code Oiv. Pro. §§ 1619-1634, superseding the act of 1870.
    
   The Court,

after advisement, held that it was the proper course to place upon the record its decision as made at the trial; that the interest which the plaintiff previously had in the lands of Alexander Fulton, deceased, became terminated as a right to the use of the land by her recorded consent to accept a gross sum in lieu of dower, and the decision of the court allowing the same to her and directing satisfaction thereof out of a sale ; that thereafter her right to the funds was not dependent upon her life or death; and therefore directed the signing of the findings and entry of judgment, in accordance with the oral decision at the trial.

No appeal was taken from the order or judgment.  