
    Lucy M. Rice, Resp’t, v. Henry Thompson, Impl’d, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1891.)
    
    Dower—Admeasurement—Stay.
    An action to admeasure dower will not be stayed, where the right of the plaintiff to dower is not disputed, to enable a person who has come in and bought from one of the heirs to have the dower admeasured in a partition suit subsequently brought.
    Appeal from interlocutory judgment adjudging the plaintiff’s dower in certain premises to be admeasured by a referee thereby appointed.
    
      M R. Robinson, for app’lt; F. H. Man, for resp’t.
   Van Brunt, P. J.

This action was brought for the admeasurement of dower by the plaintiff as the widow of one John S. Bice, who died intestate, seized of these premises, against his three children to whom the property had descended, and certain tenants and the appellant Henry Thompson, who had contracted to buy from one of the children his undivided share in the property.

The complaint alleged the marriage of the plaintiff to said Rice, the death of Rice intestate, seized and possessed of the real estate in question; that the defendants, the children of Rice, were the owners in fee of the lands and premises as tenants in common, subject to the dower right of the plaintiff in the premises, and that one of the defendants Rice had contracted to sell to the defendant Thompson all his right, title and interest in the premises. The complaint then alleges the names of the occupants of the premises ; that no portion of said premises had ever been admeasured to the plaintiff for her dower therein and that her dower was never assigned to her.

The complaint further alleged that it was not practicable to ad-measure and lay off a distinct parcel of the real property to constitute the one third part of which the plaintiff’s dower was to be admeasured without great injury to the interests of all the parties concerned, and prayed judgment that her dower in the premises might be admeasured and that the share to which the plaintiff was entitled in the rental value of the premises might be ascertained and paid to the plaintiff annually during her life.

The defendant Thompson’s answer admitted the marriage of the plaintiff, the seisin of her husband of the premises in question; that the defendants Rice had the interest in the premises mentioned in the complaint which was subject to the dower right of the plaintiff, and that no admeasurement of dower had been made; and then set up the further and separate defense that the building then upon the premises was insufficient for the proper development and improvement of the land, and that all the leases of the building terminated on the following February, and the consequent impossibility of ascertaining with any certainty the share of the rental value of the said premises to be paid to the plaintiff daring her life, and the fact that a charge upon the real estate for the estimated amount of such share of said rental value would be detrimental to the interests of the defendant Thompson and the other tenants in common. It further alleges the acquisition by Thompson, by means of a contract, of an equitable title to an undivided third of said estate at a time prior to the commencement of this action; and the fulfilment of said contract and the acquisition of a legal title to said undivided third subsequent to the commencement of this action. It then alleges the subsequent commencement of an action for the partition and sale of the premises, the complaint in which action prays for the adjustment of the plaintiff's dower right. Andón these facts the defendant insists on his right to have ascertained and finally settled by means of a sale in the action for partition the dower right of the plaintiff in the premises in question.

Upon these pleadings a motion was made for judgment as prayed for in the complaint. In answer to this motion the defendant submitted affidavits from two real estate agents who were familiar with the property in question, by which he claims facts were stated showing the impossibility of reaching any accurate estimate of the amount of the rental value paid to the plaintiff, and also that a charge on said real estate would be uncertain, inaccurate and detrimental to the interests of the tenants in common, by preventing a sale of the premises and seriously injuring future improvements by preventing the borrowing of money for such improvements.

The court granted the application for judgment and from the judgment thereupon entered this appeal is taken.

It is urged that the plaintiff is not entitled to the interlocutory judgment which was directed, and that,

“The answer of the defendant Thompson in this action, while admitting that the estates of the owners are subject to the ‘dower right’ o£ the plaintiff, does most distinctively dispute the right of the plaintiff to the admeasurement which she asks for, upon the ground that such admeasurement in the present condition of the premises would be destructive of the rights and equities of the tenants in common, and also, upon the ground of the preference which equity ought to give his partition suit to the plaintiff’s action, because only in such partition suit the question whether the plaintiff’s-dower right should be excluded from or included in the sale of the premises can be decided, and it cannot be decided in the plaintiff’s action.”

And it is urged that the provisions of § 1607 of the Code should not be interpreted in the limited manner in. which they were done by the court below, and that it was not the intention of the legislature to compel the court under all circumstances to go on with the admeasurement when, although the dower right is admitted, the answer shows that such admeasurement is unnecessary and inequitable; and attention is called to the provisions of the Code which provide that where an actual partition of the real estate is not possible and where the interests of the tenants in common so require, a sale may be had in the partition action of every estate and interest in the land free from all claims whatever and to substitute in the place of the land its proceeds for the benefit of the persons interested therein ; and that § 1538 requires that “every person having a right of dower in the property or any part thereof ‘which has not been admeasured must be made a party to an action for partition,” and that therefore it was the intention of the legislature that the widow’s dower should be ad-measured in the partition suit where such suit was instituted prior to the bringing to trial of the dower action, rather than in the dower action itself.

We think this position is not tenable. The language of the Code is unqualified, § 1607 provides that “ if a defendant makes default in appearing or pleading, or if the right of the plaintiff to dower is not disputed by the answer, * * * an interlocutory judgment must be rendered,” etc.

In the case at bar the plaintiff’s right to dower was not disputed in the answer. On the contrary it was expressly admitted, and only equitable considerations were set up tending to show the court that it should not be admeasured.

Whether the court in its discretion would have the right to postpone the admeasurement of dower for any reason whatever in order that the rights of the parties might be fixed in a partition suit it is not necessary to determine here.

But it is not ordinarily the rule that the action of the most diligent party shall be suspended until the trial of some other action, subsequently brought by some other party, in which perhaps the same question might be determined. Dower is a favored estate ; the widow’s title is superior to that of the tenants in common ; and in the ease at bar she had commenced her proceedings for the purpose of having it admeasured, and there seems to be no reason why her suit should be stayed while the person who had come in and bought from the heirs of the intestate should have an opportunity to have her dower admeasured in a partition suit.

It does not appear that any of the heirs complain, and if the appellant did not desire to run the risk of having the dower ad-measured in the proper action brought by the widow, he need not have made his contract to purchase.

We see no reason why this appellant, who has voluntarily thrust himself in as a tenant in common of the premises in question subject to this dower right, should be able to postpone the action of the widow to have her dower admeasured until he can sell the real estate in partition.

The judgment should be affirmed, with costs.

Barrett and Andrews, JJ., concur.  