Leach v. Leach

28 N.Y. Sup. Ct. 381

• Court: New York Supreme Court
• Decided: June 15, 1880
• Status: Published

Opinion

IÍARDiN, J.:

I think we ought to hold that James S. Leach, upon the death' of his wife intestate, was entitled to and took an estate in her lands as a tenant by curtesy, and became entitled to enjoy the use of such land during his life free from' any disturbance of his possession by her heirs or the widow of either of them. The right to the tenancy by curtesy was not taken away by the Laws of 1848 and 1849, as to property of married women, or the amendments thereof. There lias been considerable conflict in the decisions upon this question, but we think the weight of authority is now clearly in favor of the views just expressed. (Hatfield v. Sneden, 54 N. Y., 280 ; Matter of Winne, 2 Lans., 21; Burke v. Valentine, 52 Barb., 412 ; affirmed by the Court of Appeals in 1872, 6 Alb. L. J., 167; Barnes v. Underwood, 47 N. Y., 351.) Undoubtedly a married woman may convey or devise her real estate, as though she was a feme sole. (Cashman v. Henry, 75 N. Y., 103 ; Meeker v. Wright, 76 Id., 262.)

Nor does the fact that James S. Leach was the sole heir at law of the husband of the petitioner, give her the right to have,dower admeasured in the premises. The death of her husband before the termination of the life estate, before an estate or interest vested in possession, defeats her right to claim dower in the premises of which his mother died seized. (Durando v. Durando, 23 N. Y., 331; Safford v. Safford, 7 Paige, 259 ; Green v. Putnam, 1 Barb. 506.) Her husband was not “seized of an estate of inheritance at any time during tbe marriage.” (1 R. S., p. 740, tit. 3, 5th ed., p. 31, § 1.) •r$ W CO rH <zco

The order of the Special Term must be affirmed.

Talcott, P. J., and SMITH, J., concurred.

Order affirmed.