
    Sidway v. Sidway.
    
      (Supreme Court, General Term, Fifth Department.
    
    March, 1889.)
    Dower—Remedies—Value, How Estimated.
    The dower ol a widow in land which she has joined the heir in mortgaging to procure money used entirely in its improvement will, after the death of the heir and the descent of the land to the widow and another in coparcenary, be calculated upon the value of the land as it was when it descended to the first heir.
    Appeal from judgment on report of referee.
    Action by Eliza Sidway against Isabel Sidway for the admeasurement of dower. From a judgment confirming the report of a referee fixing a gross sum in lieu thereof, defendant appeals.
    
      G. T. Quimby, for appellant. IV. L. Marcy, for respondent.
   Dwight, J.

A very simple statement of the problem presented by this appeal seems to us to demonstrate its correct solution by the referee. By the death of John J. Sidway in October, 1882, intestate, William J. Sidway, his sole heir at law, became the owner in fee of the premises in question, subject only to the right of dower of the plaintiff, his mother. The property was then worth the sum of $26,500. In January, 1883, the plaintiff and William J. Sidway united in the execution of a mortgage on the premises for the sum of $20,000, and obtained thereon a loan of that sum of money, all of which was expended in improvements on the same premises, completed before the commencement of this action, and which were then and are now of the full value of the money expended therein. By the death of William J. Sid way in June, 1885, and the subsequent .birth and death of his posthumous child, the defendant, his widow and the mother of such child, became the owner in fee of the premises, subject to the dower of the plaintiff.

The latter having commenced this action for the admeasurement of her dower, and having consented to receive a gross sum in lieu thereof, the question is, upon what value shall such gross sum be computed? The answer is: Upon the value of the property at the date of alienation, viz., in this case, at the date of succession by the first heir. Such is the general rule, which is not questioned here, (Walker v. Schuyler, 10 Wend. 480; Marble v. Lewis, 53 Barb. 432;) and there is nothing, as we conceive, in this case to take it out of the rule. There is a case in which a rule more onerous to the heir has been declared, viz., where the heir has improved the land after descent, and before assignment of dower. In such case it has been held, in this state and in Massachusetts, that the widow shall have dower in the improvements also. Humphrey v. Phinney, 2 Johns. 484; Catlin v. Ware, 9 Mass. 217. Of course, if the dowress has joined in the conveyance of a portion of the land, or in the creation of a charge upon it, or in any other act which detracts from the value of the inheritance, she must submit to a corresponding depreciation of her dower. But this case is in neither of the categories supposed. The charge created upon this land was by the joint deed of the dowress and the owner of the fee; and it was for the improvement of the land itself, and resulted in the appreciation of its value to precisely the extent of the charge created upon it. ’ The value of the inheritance was unchanged, and there was therefore nothing in the transaction to affect in any measure the interest of the dowress, or, as we have said, to take the case out of the rule that dower is to be computed upon the value of the property as it was at the date of succession by the heir. Such was the conclusion of the referee in this case, and the judgment entered accordingly must be affirmed, with costs. All concur.  