
    MATTER OF LENAHAN.
    
      New York Supreme Court, George F. Langbein, Referee;
    
    July, 1888.
    
      Accounting of general guardian.] One of the general guardians of minor children,—a widow and grandmother of the children— supported herself and the children out of the income of the real estate which had descended to the children on their fathers death,, he having inherited it from his father, husband of the widow, general guardian. The widow having died, the surviving general guardian filed an account showing an allowance to the credit of the widow, as her dower, of a sum which she had spent out of the-income. No assignment of dower had ever been made—Held? ■ that the item should be allowed.
    
      Bower; admeasurement.] It is not essential that a widow’s dower should bé admeasured, or assigned to her, in order to entitle her to be allowed for it on the settlement of the estate.
    Accounting of a general guardian before a referee.
    The facts appear sufficiently in the opinion.
   George F. Langbein, Referee.

The only question presented on this accounting is one of some novelty and difficulty.

Michael O’Brien died March 13, 1884, seized and possessed of real property in this city, and leaving him surviving his widow, Margaret O’Brien, and his son, William O’Brien. William O’Brien died October 16, 1885, seized and possessed of real estate, and leaving him surviving his mother, the said Margaret O’Brien, and the infant children above named, all of whom are still under the age of fourteen years.

On Xovember 21, 1885, Margaret O’Brien and Michael Lenahan were appointed the general guardians of the said children. Mr. Lenahan allowed Mrs. O’Brien chiefly to manage the estate ; she lived in one of the houses and used the the rents, issues and profits of the estate in the support of herself and her said grandchildren, until she died on December 16, 1886, eighty years of age.

The surviving guardian having petitioned the court to file his account, an .order of reference was made February 1,. 1887, to take and state it, and report to this court. No inventory of the estate was ever filed until the reference had progressed to February 26, 1887, when an inventory and account was filed with the referee. In this account, on the-contra side, the guardian has the following item : “ Less-dower of Margaret O’Brien, $610.75,” and the contention-has been whether this item should be allowed or not.

There is no proof that Margaret O’Brien ever expressed herself that she took this exact amount, or any amount, or the rents, issues and profits to herself, as, or for her dower. There is no proof of any assignment of dower, or an agreement of any kind expressed, to use the rents for her dower. Being the widow and mother, she simply, as a matter of course, continued to live in the house, took the charge and care of it, and applied the rents in keeping the houses of the estate in repair, and in the support, maintenance and’ education of the children, and the support of herself until she died.

In taking up the active charge of the estate, and care of the children’s interest, Mr. Lenahan, it would seem, finds the estate short in the sum of $610.75, and proof ha» been introduced claiming that the widow spent some such sum out of the rents for her support since her husband’s death, March 13, 1884.

Upon this proof it is contended that in equity such sum should be allowed to her, and deducted out of the estate-on account of her dower to which she was entitled, no assignment of which, however, had ever been made.

No reported cases have been found in our State in aid of this proposition.

In the case of McLaughlin v. McLaughlin, 20 N. J. Eq. 190, no formal -word or act, was held to be necessary,. where the guardian was also the doweress and took the •equivalent of dower. Her acceptance of what she took was presumed to be accéptance of dower.

Then there are some old English cases (Hamilton v. Mohun, 1 Peere Wms. 118, citing Osburn v. Chapman, 2 Ch. Cas. 157, and Graham v. Graham, 1 Vesey, Sr., 262) holding that the want of a formal assignment of dower in' ■equity is nothing, for still the right in conscience is the •same, and thp,t it is most just in an accounting, that a court •of equity should, in the account, allow a third of the profits for the right of dower.

In Harper v. Archer, 28 Miss. 212, a western case, it was held, though the widow died before the right to dower ■be established, equity will decree an account of the rents and profits in favor of her representatives.

In Steiger’s Adm’r v. Hillen, 5 Gill, & J. (Md.) 121, the representative of the widow was- also allowed to recover her .■share of the rents, as dower, after her .death.

In Paul’s Ex’r v. Paul, 36 Pa. St. 270, it was decided: In equity the personal representatives of a widow entitled to dower in the deceased husband’s lands, may have an .account of the rents and profits thereof, although dower was not assigned in her lifetime, and no proceedings were instituted for that purpose.”

The special guardian appointed by this court to protect the interests of the infants on this accounting has zealously •.and faithfully performed his duty.

He insists that dower was not assigned in fact or constructively, and therefore cannot be allowed on this accounting. This is true in some respects. Dower was not assigned .and will not be assigned on this accounting. That is not the question. It is not a question of cold, strict law, but a •question of equity, justice and' conscience, to wit: the widow and deceased general guardian having supported herself out of the rents' of the estate, in which she was ■entitled to dower, and the dower never having been .admeasured or assigned to her in her lifetime, and her surviving general guardian now accounting for those rents,, part of which she so used, should such sum in equity be allowed to him on account of her necessary expenditures, or the dower which was never assigned or admeasured £ This is the question stated fully and at large.

It is not necessary in law that a widow’s dower should, be admeasured or assigned to her, it exists in her and in the-estate just the same. Otherwise, simply because a widow does not get her dower admeasured or assigned to her, it ceases and she loses it.

The case of Aikman v. Harsell, 98 N. Y. 186, and at page 192, is not applicable to the question here. It holds-that acceptance of rent, without any agreement as to the same, will not bar the widow from her statutory action to-recover dower, and that to constitute an assignment or ad-measurement of dower, by virtue of an agreement or any specifie act of the party, it should be clearly manifest that, such was the intention.

There is no doubt that between the day of the death of" her husband and her own death, a period of over two years and nine months, she spent a sum of money out of the rentsfcr her support, larger than the sum put into the surviving-guardian’s account for her dower, and I think in equity and good conscience it should be allowed in the account, and. that the surviving accounting guardian should not pay it out of 1ns individual funds, which he would be compelled to do,, if such item were now disallowed.

There is no question but that the widow was entitled to-do wer, and that she expended necessarily some such sum of money for her support out of the rents of the estate, in which, in law, she had dower by the death of her husband..

This sum of money the surviving guardian cannot otherwise account for than that she so necessarily spent it, and the mere fact that he put it in the account as dower should not in right and justice be to his prejudice, much less_ to strikeout the item as a charge in his favor.

The sum of money which Margaret O’Brien was entitled to take or expend in view of her acquired right to dower on her husband’s death,- was largely in excess of the sum charged to her name in the account, and therefore the item or sum expended, as a matter of fair dealing, good conscience and equity, should be allowed.  