In re Hughes

3 Redf. 18

• Court: New York Surrogate's Court
• Decided: February 15, 1877
• Status: Published

Opinion

The Surrogate.

In the Matter of Sipperly, (44 Barb., 370,) the objection raised by counsel for the guardians in this matter seems to be substantially settled. There Hogeboom, J. explains the distinction between the claim of doweress before and after admeasurement. In that case, the court at Special Term had refused to appoint commissioners to admeasure dower, upon the ground that the partition suit, to which the doweress was a party, had been previously commenced for partition of the same premises, in which it was admitted that the petitioner was entitled to the dower, and this order of refusal was reversed by the General Term. The same case holds that the estate of the widow as dowress is favored in the law, and that proceedings to enforce such estate should be encouraged rather than defeated.

In the matter under consideration, it does not appear that any decree has been reached in the partition suit, and it is quite likely that this proceeding, which is taken for the purpose of establishing a superior title, may bé consummated before the decree shall be reached in the partition suit.

I see nothing in the facts stated to be included in her answer in that suit, to preclude her from the enforcement of her rights, by way of admeasurement of her dower.

I am therefore of opinion that the order applied for should be granted.

Order accordingly.