Ash v. Cook

New York Supreme Court

Ash v. Cook

3 Abb. Pr. 389

DecidedNovember 15, 1856

StatusPublished

This text of 3 Abb. Pr. 389 (Ash v. Cook) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ash v. Cook, 3 Abb. Pr. 389 (N.Y. Super. Ct. 1856).

Pincite

Opinion

Birdseye, J.,

The objection cannot be sustained. The right of dower, though highly favored in law, is not of the nature supposed. It is, before assignment, a right resting in action merely. Till the assignment of her dower, the widow has no estate in the land out of which such dower arises. (Green v. Putnam, 1 Barb. S. C. R., 500; Lawrence v. Miller, 2 Comst., 245; Stewart v. McMartin, 5 Barb., 438.) The reason for this was given long ago.—“ Because it doth not appear before assignment, what part of the lands or tenements she shall have for her dower." (Go. Litt., § 43, 37 a.) Though she may tarry in her husband’s chief house for forty days after his death, yet upon the expiration of her quarantine, the heir may put her out of possession, and drive her to her suit for her dower. (Co. Litt., 34 b.; Siglar v. Van Riper, 10 Wend., 419, 420.)

"Were the court now to require the widow to be joined as a party plaintiff, the defendant might, perhaps, with entire truth, allege and prove that she had no estate or interest in these lands; that her husband left other lands, a part of which had been assigned her as her dower in all the lands of her husband ;—and might take judgment against her for the costs of a suit, in which he had insisted she should be joined as plaintiff'.

The leave to file a supplemental, complaint and continue the action, is granted. The motion to amend cannot be made, at the present stage of the action; and is denied without prejudice.

Free access — add to your briefcase to read the full text and ask questions with AI

Birdseye, J.,

The objection cannot be sustained. The right of dower, though highly favored in law, is not of the nature supposed. It is, before assignment, a right resting in action merely. Till the assignment of her dower, the widow has no estate in the land out of which such dower arises. (Green v. Putnam, 1 Barb. S. C. R., 500; Lawrence v. Miller, 2 Comst., 245; Stewart v. McMartin, 5 Barb., 438.) The reason for this was given long ago.—“ Because it doth not appear before assignment, what part of the lands or tenements she shall have for her dower." (Go. Litt., § 43, 37 a.) Though she may tarry in her husband’s chief house for forty days after his death, yet upon the expiration of her quarantine, the heir may put her out of possession, and drive her to her suit for her dower. (Co. Litt., 34 b.; Siglar v. Van Riper, 10 Wend., 419, 420.)

"Were the court now to require the widow to be joined as a party plaintiff, the defendant might, perhaps, with entire truth, allege and prove that she had no estate or interest in these lands; that her husband left other lands, a part of which had been assigned her as her dower in all the lands of her husband ;—and might take judgment against her for the costs of a suit, in which he had insisted she should be joined as plaintiff'.

The leave to file a supplemental, complaint and continue the action, is granted. The motion to amend cannot be made, at the present stage of the action; and is denied without prejudice.

Cite This Page — Counsel Stack

Bluebook (online)

3 Abb. Pr. 389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ash-v-cook-nysupct-1856.

Opinion

Related

Cite This Page — Counsel Stack