Robert C. Hutchings, Surrogate.
The wife of the heir at law of the decedent, applies to be made a party to the proceedings or for leave to intervene by her own separate counsel, to oppose the probate in question. Her petition is dated the twenty-second of November, and states that over a year ago, her husband, a son of the decedent, for reasons unknown to herself, left her and went to California, where, so far as she knew and believed, he had remained, and still was; hearing from him very rarely, although she had, since his departure, given birth to a child to him, that lived only eight months, and whom the father had not ever seen; and the petition refers to the existence of disagreement and ill feeling between herself and husband before he went away; but denies that they were of such nature as to give him cause for separation or desertion.
On such grounds, with the further allegation that her husband had not personally attended for the purpose of contesting this probate, and that 'she is advised and believes that there are good grounds of contest; she asks permission in her her own behalf, separately to oppose the admission of the will, in order to protect her inchoate right of dower. It is [110] not claimed by the petitioner’s counsel that she is a necessary party to the proceedings; and it is only the discretionary power of the court that is invoked.
The statutes give no express right to any others to appear and contest the probate of a will, than the heirs and next of Mm, and widow, if one survives ; for the reason that no others can be interested in defeating the probate, and they as being entitled to the estate, in case of intestacy. Yet persons, claiming as legatees under a will of earlier or later date, may intervene to contest; but it is because the statutes provide, that any executor, devisee or legatee named in a will, or any person interested in the estate may have such will proved, and the inquiry is which of the two instruments is the last will ? The court, in that case, directs the proper application to be made, or other forms of proceedings, in order that there may be an effectual determination, as between the conflicting papers presented as the last will.
But the persons interested in the estate as proponents, other than devisees or legatees, should have a direct interest, such as creditors and the like. I think no case can be found, at least I have found none reported, in which a wife’s inchoate right of dower was determined as the sole ground of her right to apply for probate of a will, under which her husband was a devisee, or as the sole ground for permitting a contest of a will by her alone, in order to establish intestacy in case of no opposition to probate from her husband.
Yet, if the application under consideration be granted, it appears to me that it would be a precedent that would require the. allowance of that sort of contest and which would certainly appear at first, anomalous to every legal mind, if not evidently inadmissible. If the relief sought foils not sustainable, or demanded by a wise judicial discretion in that extreme case where the husband and all other heirs at law make default, and if the wife’s petition so to contest is not a legal right, which is not claimed, how much less would such permission be required or justified where other, heirs at [111] law of the same degree of relationship» to the testator as her husband, do contest by able and experienced counsel, and there is therefore no evidence that the contest is not already in safe hands, and no proof that any assistance of facts or other means, at petitioners command, tending to invalidate the testamentary will not or may not, be as available through the other contestants as if presented by her own counsel ?
But in this case it now, on the hearing of this application, appears that the husband of petitioner has returned from California, and 'is now in personal attendance, and is also represented by counsel who contest on his behalf, as well as for the other sons of the decedent; and there is no evidence to satisfy me that the husband will not, in co-operation with the other sons, do all that is practicable, or that the alleged inchoate interest of petitioner in the 2-ight of her husband, will not be faithfully and prope2-ly protected.
Even, however, if the husband of petitioner had not appeared pe2*so2ially and by counsel to contest the prebate, I should feel constrained to deny the leave asked as not required by a sound discretion under the circumstances of this case ; and I a2n not able, at present, to convince myself of the propriety of such intervention in any case, even where there is a separation of husband and wife, but without the sanction of a divorce or of some judicial act decreeing or allowing it, or the pending of legal proceedings for that purpose.
The mere fact that a woman is living apart from her husband does not entitle her in an action to answer separately (Gray agt. Whittington, 5 Beavan, 270: Barry agt. Woodham, 1 Y. & Col., 538).
And even in cases where the wife is a necessary party in equity proceedings to foreclose a mortgage, it was held in Lathrop agt. Heacock (4 Lansing R., p. 1,1871), that in such a proceeding, affecting the husband’s real property only, he was authorized and repaired to have an appearance entered for his wife upon service on him alone and without authority from her.
In that case the wife, after her widowhood, sued to redeem [112] premises from sale under judgment of foreclosure, and the court held that she was barred; that the appearance in the foreclosure was regular, though she never authorized it; that the action did not concern her separate estate; that all the interest she then had was an inchoate right of dower ; that it was the husband’s right and his cbuiy to employ an attorney to appear for her, and she was bownd by it; that in law it was an appearance by her authority, to all intents and purposes, that the act of the husband in employing an attorney to appear for her in such a case, was her act; and so it had always been held (2 John. Ch., 139 ; 11 How. Pr. R., 42); that the service of the process upon the husband alone was in law a good service upon her ; that they were one person in law, except as to her separate estate; that had_ the action concerned her separate estate, it would have been different, and that in such a case the husband had no right to appear for the wife. The reasoning of that case may be usefully applied to such a probate proceeding as this, on the question of a separate appearance.
Besides, it is obvious that the precedent, should the leave asked for be granted, would be a dangerous one, as tending to encourage contentious cases of probate; also to increase delays and expense, and might aggravate and bring uselessly before the probate tribunals, domestic discords and conflict, if husband and wife were thus represented by different counsel.
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Robert C. Hutchings, Surrogate.
The wife of the heir at law of the decedent, applies to be made a party to the proceedings or for leave to intervene by her own separate counsel, to oppose the probate in question. Her petition is dated the twenty-second of November, and states that over a year ago, her husband, a son of the decedent, for reasons unknown to herself, left her and went to California, where, so far as she knew and believed, he had remained, and still was; hearing from him very rarely, although she had, since his departure, given birth to a child to him, that lived only eight months, and whom the father had not ever seen; and the petition refers to the existence of disagreement and ill feeling between herself and husband before he went away; but denies that they were of such nature as to give him cause for separation or desertion.
On such grounds, with the further allegation that her husband had not personally attended for the purpose of contesting this probate, and that 'she is advised and believes that there are good grounds of contest; she asks permission in her her own behalf, separately to oppose the admission of the will, in order to protect her inchoate right of dower. It is [110] not claimed by the petitioner’s counsel that she is a necessary party to the proceedings; and it is only the discretionary power of the court that is invoked.
The statutes give no express right to any others to appear and contest the probate of a will, than the heirs and next of Mm, and widow, if one survives ; for the reason that no others can be interested in defeating the probate, and they as being entitled to the estate, in case of intestacy. Yet persons, claiming as legatees under a will of earlier or later date, may intervene to contest; but it is because the statutes provide, that any executor, devisee or legatee named in a will, or any person interested in the estate may have such will proved, and the inquiry is which of the two instruments is the last will ? The court, in that case, directs the proper application to be made, or other forms of proceedings, in order that there may be an effectual determination, as between the conflicting papers presented as the last will.
But the persons interested in the estate as proponents, other than devisees or legatees, should have a direct interest, such as creditors and the like. I think no case can be found, at least I have found none reported, in which a wife’s inchoate right of dower was determined as the sole ground of her right to apply for probate of a will, under which her husband was a devisee, or as the sole ground for permitting a contest of a will by her alone, in order to establish intestacy in case of no opposition to probate from her husband.
Yet, if the application under consideration be granted, it appears to me that it would be a precedent that would require the. allowance of that sort of contest and which would certainly appear at first, anomalous to every legal mind, if not evidently inadmissible. If the relief sought foils not sustainable, or demanded by a wise judicial discretion in that extreme case where the husband and all other heirs at law make default, and if the wife’s petition so to contest is not a legal right, which is not claimed, how much less would such permission be required or justified where other, heirs at [111] law of the same degree of relationship» to the testator as her husband, do contest by able and experienced counsel, and there is therefore no evidence that the contest is not already in safe hands, and no proof that any assistance of facts or other means, at petitioners command, tending to invalidate the testamentary will not or may not, be as available through the other contestants as if presented by her own counsel ?
But in this case it now, on the hearing of this application, appears that the husband of petitioner has returned from California, and 'is now in personal attendance, and is also represented by counsel who contest on his behalf, as well as for the other sons of the decedent; and there is no evidence to satisfy me that the husband will not, in co-operation with the other sons, do all that is practicable, or that the alleged inchoate interest of petitioner in the 2-ight of her husband, will not be faithfully and prope2-ly protected.
Even, however, if the husband of petitioner had not appeared pe2*so2ially and by counsel to contest the prebate, I should feel constrained to deny the leave asked as not required by a sound discretion under the circumstances of this case ; and I a2n not able, at present, to convince myself of the propriety of such intervention in any case, even where there is a separation of husband and wife, but without the sanction of a divorce or of some judicial act decreeing or allowing it, or the pending of legal proceedings for that purpose.
The mere fact that a woman is living apart from her husband does not entitle her in an action to answer separately (Gray agt. Whittington, 5 Beavan, 270: Barry agt. Woodham, 1 Y. & Col., 538).
And even in cases where the wife is a necessary party in equity proceedings to foreclose a mortgage, it was held in Lathrop agt. Heacock (4 Lansing R., p. 1,1871), that in such a proceeding, affecting the husband’s real property only, he was authorized and repaired to have an appearance entered for his wife upon service on him alone and without authority from her.
In that case the wife, after her widowhood, sued to redeem [112] premises from sale under judgment of foreclosure, and the court held that she was barred; that the appearance in the foreclosure was regular, though she never authorized it; that the action did not concern her separate estate; that all the interest she then had was an inchoate right of dower ; that it was the husband’s right and his cbuiy to employ an attorney to appear for her, and she was bownd by it; that in law it was an appearance by her authority, to all intents and purposes, that the act of the husband in employing an attorney to appear for her in such a case, was her act; and so it had always been held (2 John. Ch., 139 ; 11 How. Pr. R., 42); that the service of the process upon the husband alone was in law a good service upon her ; that they were one person in law, except as to her separate estate; that had_ the action concerned her separate estate, it would have been different, and that in such a case the husband had no right to appear for the wife. The reasoning of that case may be usefully applied to such a probate proceeding as this, on the question of a separate appearance.
Besides, it is obvious that the precedent, should the leave asked for be granted, would be a dangerous one, as tending to encourage contentious cases of probate; also to increase delays and expense, and might aggravate and bring uselessly before the probate tribunals, domestic discords and conflict, if husband and wife were thus represented by different counsel.
If the inchoate right of dower of a wife in her husband’s real estate were a vested or separate estate in the land, the case would, of course, be essentially different, but her right in her husband’s lifetime, as to his real estate, is too uncertain to be treated in any such important sense separate, as to be distinguishable from his interest as an heir at law, when he is duly cited to appear upon probate. The right of dower before the death of the husband, says a distinguished, jurist, “ is not only an inchoate right not transmissible to her heirs, nor during the life of her husband, can she give it any form of property to her advantage. So long as the husband shall live, it is only a'right in legal contemplation, depending upon [113] the good conduct of the wife and the death of the husband, and, like all rights which are contingent, may never become vested (McLean, justice, Johnston agt. Van Dyke, 6 McLean Reports, 422). Similar language is employed by the court in the case of Moore agt. City of New York (4 Selden, 110; 4 Sandford Superior Court R., 456). It is there said that the inchoate interest of the wife is a right to a claim for dower, contingent upon her surviving her husband. Such a possibility may be released, but it is not, in any sense, an interest in real estate. It is not, of itself, property the value of which may be estimated, but an inchoate right, which, on the happening of certain events, may be consummated so as to entitle the widow to demand and receive a freehold estate in the lands.
From the uncertain and contingent character, therefore, of an inchoate right of dower, taken in connection with the facts referred to as showing that the interests of the petition are not in jeopardy, I deem it my duty to decline to exercise the discretion of permitting her to intervene as a contestant separately from her husband, especially in the absence of statutory provisions on the subject.
In England there is an express statutory enactment (see 61 of the Court of Probate Act, 1857) that, when proceedings are taken for proving a will in solemn form, revoking the probate of a will on account of its invalidity as to real estate, the heirs at law, devisees or other persons having or pretending to have an interest in the realty shall be cited or summoned in Wee manner as the next of kin, or other having or pretending to have an interest in the personalty, and may be permitted to become parties, or to intervene, for their respective interests in such real estate, subject to the rules and orders under said act, and to the discretion of the court.
The question is a novel and interesting one; and, even if I have the power in my discretion to allow such a contest by the wife of an heir at law, separately from himself, in any case, the facts do not, in my judgment, warrant it in this; and the petition for leave so to appear, &c., is denied.