
    Jackson, ex dem. Clark, against O’Donaghy.
    
      NEW-YORK,
    
    
      Nov. 1810.
    
    The privilege of the widow <e to tarry in tlie chief house of* her husband 40 days, or until her dower be assignedto her/5 (Xftívs, sess. 10. c.4.)willnotpro~ tect her against an action of o jeetment, bro’t after the forty days have elapsed, by the heir or any person deriving title from the husband.
    If the widow’s. dower be not assigned during her quarantine, she may bring her action and recover damages from the day of her husband’s death, but she cannot enter for her dower, until it is unsigned to her j and after the forty days, the heii* may cxpr-l her, and put her tp her v.nt,
    THIS was an action of ejectment, to recover possession of lot No. 8. in Falius, in the county of Onondaga. The cause was tried before Mr. Justice Thompson, at the Onondaga circuit, the 21st June, 1809.
    
      Patrick O'Donaghy was in possession of the premises in 1804, and continued in possession until the time of his death, in the autumn of 1806. A judgment was recovered in the Onondaga common pleas, in October term, 1806, against William Dougherty and Patrick O'Donaghy, before the death of the latter, for 12/ dollars and 30 cents, at the suit of Russel Clark, on which z fieri facias 
      was issued, by virtue of which the premises in question were sold on the 27th March, 1807, to the lessor of the plaintiff, and conveyed to him by the sheriff. The defendant is the widow of Patrick O’Donaghy, and since his death, has remained in possession of the premises.
    A verdict was taken for the plaintiff, subject to the opinion of the court, on a case containing the facts' above stated.
    
      Forman, for the plaintiff.
    ■ Cady, contra.
   Van Ness, J.

delivered the opinion of the court.The privilege of the widow to “ tarry in the chief house of her husband for forty days, or until her dower be assigned her,” does not protect her from an action of ejectment by the heir, or any person deriving title from him, after the forty days have elapsed. There is some difference between the words of our statute, (1 Rev. Laws of N. Y. 51.) and magna charta, (c. 7.) from which the. statute was taken; but it is a difference, I apprehend,, in the words only. In the former the expression is, that the widow “ shall tarry forty days, &c. or until her dower be assigned,” &c. and in the latter, she “ shall tarry forty days, &c. within which time her dower,” &c.

It is supposed, that under our statute the widow has-a right to her quarantine until her dower be assigned her. If this had been the intention of the legislature, then the limitation of it to forty days would be useless. The construction, therefore, of our statute and magna charta must be the same ; and that of the latter appears to be well settled.

If the widow’s dower is not assigned her during her quarantine, she has her right of action, and she shall have her damages from the day of her husband’s death, when he dies seised. A widow cannot enter for her dower until it is assigned her, “ because it doth not appear, before assignment, what part of the lands or tene~nents she shall have for her' dower." (Litt. 43. Co. Litt. 37. b.) She is not a tenant in common with the heir. Her right rests in action only; and after the expiration of the forty days, the heir can expel her, and put her to her suit. (C'o. Litt. 34. b.) In a case reported in Jenk. £ent. (184. case 16.) it was ruled by all ~he judges, that the widow may live in the chief house of he~ husband for forty days, and no longer. It must pave been to remedy this hardship upon the widow, that dower ad ostium ecclesi~e, and ex assensu patris was introduced, so that she might enter immediately upon the death of her husband, and not be driven to her nction. The true construction of our statute and of this part of nzagna charta appears to be, that the widow shall enjoy her quarantine for forty days, unless ~ithiu that time her dower be assigned her.

The only instance which has fallen under my obser~ vation, in which this construction of magiza charta has been questioned, is a dictum of Gould, J. in the case of Goodtitle v. Newman, (3 Wil,s'. 519.) where he said, "that the court would. not turn the widow out until her dower was assigned to her;" but he was undoubtedly ~nistaken.

Judgment for the p1aintiff~  