Jackson ex dem. Clarke v. Randall

5 Cow. 168

• Court: New York Supreme Court
• Decided: October 15, 1825
• Status: Published

Opinion

Curia, per Sutherland, J.

The Judge erred in holding these proceedings conclusive evidence of the title and seisin of the husband. In the Matter of Martha Watkins, widow, "(9 John. 246,) the Court say, the proceedings of the surrogate, under the act, are founded on the assumption that the widow is entitled to her dower out of the estate in question ; and that it is only to be designated and set off. There is no provision for trying, before the surrogate, the title to dower; and the admeasurement to be made, in pursuance of his order, cannot affect, or prejudice the right to dower, or the legal or equitable bar to it. Those rights, if litigated, remain open for investigation in the ordinary course of j ustice. The admeasurers are not to do execution as the sheriff does, .on a writ of habere facias possessionem. If the right to dower be denied, the party may protect his possession notwithstanding the admeasurement, and drive her to her action at law,

Until the admeasurement is reversed on appeal, it is conclusive in an action, of ejectment, as to the part belonging to the widow, if she is entitled to dower at all. But it was admitted by the plaintiff’s counsel in Jackson v. Hixon, (17 John. 125,) that the proceedings before the surrogate were no evidence of title. The seisin of the husband was proved in that case ; and the proof was admitted to he necessary. This is like any other ejectment suit. The plaintiff must make out his title ; and the defendant is at liberty to impeach it. (10 John. 368.). A new trial must he granted, with costs to abide the event of the suit.

New trial granted.