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The real estate, out of which dower is claimed in this case, was not embraced in the power of sale conferred upon the executors. The land had been sold by the testator in his lifetime, and his interest at the time of his death was the right to the money due upon the contracts, and was personal estate. The authority to sell the "fast estate" contained in the will has, therefore, no operation upon the premises out of which dower is now claimed. But if the premises had been included in the power of sale, it would not, according to the authorities, have been a provision in lieu of dower, notwithstanding that by the will
the widow was entitled to the income of the proceeds during her life. (French v. Davies, 2 Ves., Jr., 572; Birmingham v.Kirwan, 2 Sch. Lef., 440; Wood v. Wood, 5 Paige, 596;Fuller v. Yates, 8 id., 325.) The direction to sell in this class of cases is considered to be limited to the interest which the husband could control, and not to include the estate in dower which was not his to dispose of. The reasoning is somewhat artificial, as it is in nearly all the adjudications upon this subject. It is, however, a rule of property, and should not be departed from upon any notions we may entertain of its abstract propriety.
The devise to the plaintiff, for life, of all the testator's real and personal property, would seem, on a superficial view, to be inconsistent with the right of dower; and it would be clearly so if she was dowable only of the lands of which her husband died seized, after all liens and incumbrances thereon had been satisfied. But as her interest as doweress extends to all the lands of which he was seized during coverture, and is not subject to his debts nor to any liens which he may have created without her joining in them, it is obvious that such a provision would, in many cases, be quite illusory as a compensation for dower. In this case the husband had sold by executory contracts a large portion of the land which he owned in this state, and the broad gift of all his real and personal estate to his wife for life would, as to these lands, only give her the balance of the purchase money due on the contracts, which, for anything which appears, may be less than the value of her dower. The courts, however, do not inquire whether the testamentary provision is adequate, or reasonably proportionate to the value of the dower, for the widow has a right to receive or reject it at her pleasure. Where there is no direct expression of intention that the provision shall be in lieu of dower, the question always is, whether the will contains any provision inconsistent with the assertion of a right to demand a third of the lands, to be set out by
metes and bounds. (1 Roper on Husband and Wife, 576.) The devises in the will must be so repugnant to the claim of dower that they cannot stand together. (4 Kent's Com., 58; Adsit v.Adsit, 2 John. Ch. R., 448; Wood v. Wood, supra; Fuller
v. Yates, supra; Sanford v. Jackson, 10 Paige, 266; Bull
v. Church, 5 Hill, 206; S.C. in error, 2 Denio, 430.) Applying this test to the will under consideration, there is no difficulty in giving the plaintiff the provision made for her in it, and her dower also. There is no person who takes an interest under the will during her lifetime, with which the claim of dower will conflict; and as to herself there is no incongruity in her taking one-third of the unsold land as doweress, and two-thirds as devisee. The former she will hold by a title paramount to the mortgage, and the other is subject to that incumbrance. The mortgagee, it is true, may be disappointed in finding his lien less extensive than that which the instrument professed to confer on him, but that consequence does not arise out of the will, but from an act not testamentary and by which the wife cannot be affected. So of the parties holding contracts. Their interests, though hostile to her claim of dower, are not given by the will. If that instrument had directed the executrix to convey to them a title which should be free from all incumbrances, it would present a case of plain repugnance, which would put the widow to her election. The case of Bull v. Church, before referred to, was a stronger one against the widow than the present. The husband's will gave all his property, real and personal, to his wife, during her widowhood, and then to his children. She claimed dower after her second marriage, after having taken and enjoyed the provision made by the will. There was the same apparent incongruity which exists here, of giving the entirety where the title to dower would embrace but a third, and the further one of the apparent conflict between the estates of the devisees in remainder and the right to dower. This was, however, reconciled, by holding that the
devise in remainder was to be understood as subject to the right of dower. The judgment having been affirmed in the court of errors, the case must be considered as a controlling one. The precise question now presented is discussed by an able elementary writer, whose conclusions seem to me to embody the fair result of the cases. He remarks, that the adjudged cases "say nothing as to the question whether, when the whole of the lands are devised to the widow, she may take two-thirds of them as a purchaser under the will, and the remaining one-third under her title to dower. The principle, however, upon which the cases last mentioned and referred to were decided, appears equally to apply to this subject. There is no more inconsistency between the widow's right to dower in the lands devised to her and her interest in them under the devise than in the above cases. The husband might intend that she should take no other interest in the lands bequeathed to her than under his will, or he might mean to pass to her his interest subject to her title to dower. His intention is dubious; which is not rendered more clear from any inconsistency between the concurrent enjoyment of her two rights, the one under the will and the other by the provision of the law. For want, therefore, of this clear implication of intention from the contents of the will that the testator intended what he had given to his widow should be held and enjoyed under his will and by no other title, it would seem that she may in general elect to take the lands devised to her both under the will and her title to endowment.
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The real estate, out of which dower is claimed in this case, was not embraced in the power of sale conferred upon the executors. The land had been sold by the testator in his lifetime, and his interest at the time of his death was the right to the money due upon the contracts, and was personal estate. The authority to sell the "fast estate" contained in the will has, therefore, no operation upon the premises out of which dower is now claimed. But if the premises had been included in the power of sale, it would not, according to the authorities, have been a provision in lieu of dower, notwithstanding that by the will
the widow was entitled to the income of the proceeds during her life. (French v. Davies, 2 Ves., Jr., 572; Birmingham v.Kirwan, 2 Sch. Lef., 440; Wood v. Wood, 5 Paige, 596;Fuller v. Yates, 8 id., 325.) The direction to sell in this class of cases is considered to be limited to the interest which the husband could control, and not to include the estate in dower which was not his to dispose of. The reasoning is somewhat artificial, as it is in nearly all the adjudications upon this subject. It is, however, a rule of property, and should not be departed from upon any notions we may entertain of its abstract propriety.
The devise to the plaintiff, for life, of all the testator's real and personal property, would seem, on a superficial view, to be inconsistent with the right of dower; and it would be clearly so if she was dowable only of the lands of which her husband died seized, after all liens and incumbrances thereon had been satisfied. But as her interest as doweress extends to all the lands of which he was seized during coverture, and is not subject to his debts nor to any liens which he may have created without her joining in them, it is obvious that such a provision would, in many cases, be quite illusory as a compensation for dower. In this case the husband had sold by executory contracts a large portion of the land which he owned in this state, and the broad gift of all his real and personal estate to his wife for life would, as to these lands, only give her the balance of the purchase money due on the contracts, which, for anything which appears, may be less than the value of her dower. The courts, however, do not inquire whether the testamentary provision is adequate, or reasonably proportionate to the value of the dower, for the widow has a right to receive or reject it at her pleasure. Where there is no direct expression of intention that the provision shall be in lieu of dower, the question always is, whether the will contains any provision inconsistent with the assertion of a right to demand a third of the lands, to be set out by
metes and bounds. (1 Roper on Husband and Wife, 576.) The devises in the will must be so repugnant to the claim of dower that they cannot stand together. (4 Kent's Com., 58; Adsit v.Adsit, 2 John. Ch. R., 448; Wood v. Wood, supra; Fuller
v. Yates, supra; Sanford v. Jackson, 10 Paige, 266; Bull
v. Church, 5 Hill, 206; S.C. in error, 2 Denio, 430.) Applying this test to the will under consideration, there is no difficulty in giving the plaintiff the provision made for her in it, and her dower also. There is no person who takes an interest under the will during her lifetime, with which the claim of dower will conflict; and as to herself there is no incongruity in her taking one-third of the unsold land as doweress, and two-thirds as devisee. The former she will hold by a title paramount to the mortgage, and the other is subject to that incumbrance. The mortgagee, it is true, may be disappointed in finding his lien less extensive than that which the instrument professed to confer on him, but that consequence does not arise out of the will, but from an act not testamentary and by which the wife cannot be affected. So of the parties holding contracts. Their interests, though hostile to her claim of dower, are not given by the will. If that instrument had directed the executrix to convey to them a title which should be free from all incumbrances, it would present a case of plain repugnance, which would put the widow to her election. The case of Bull v. Church, before referred to, was a stronger one against the widow than the present. The husband's will gave all his property, real and personal, to his wife, during her widowhood, and then to his children. She claimed dower after her second marriage, after having taken and enjoyed the provision made by the will. There was the same apparent incongruity which exists here, of giving the entirety where the title to dower would embrace but a third, and the further one of the apparent conflict between the estates of the devisees in remainder and the right to dower. This was, however, reconciled, by holding that the
devise in remainder was to be understood as subject to the right of dower. The judgment having been affirmed in the court of errors, the case must be considered as a controlling one. The precise question now presented is discussed by an able elementary writer, whose conclusions seem to me to embody the fair result of the cases. He remarks, that the adjudged cases "say nothing as to the question whether, when the whole of the lands are devised to the widow, she may take two-thirds of them as a purchaser under the will, and the remaining one-third under her title to dower. The principle, however, upon which the cases last mentioned and referred to were decided, appears equally to apply to this subject. There is no more inconsistency between the widow's right to dower in the lands devised to her and her interest in them under the devise than in the above cases. The husband might intend that she should take no other interest in the lands bequeathed to her than under his will, or he might mean to pass to her his interest subject to her title to dower. His intention is dubious; which is not rendered more clear from any inconsistency between the concurrent enjoyment of her two rights, the one under the will and the other by the provision of the law. For want, therefore, of this clear implication of intention from the contents of the will that the testator intended what he had given to his widow should be held and enjoyed under his will and by no other title, it would seem that she may in general elect to take the lands devised to her both under the will and her title to endowment. This may be of great advantage to her where her husband dies in embarrassed circumstances, for, as to one-third of the estate, she would enjoy it under a paramount title free from his incumbrances during the marriage; and for the other two-thirds she would be liable to contribute with the owners of the remainder of the lands in discharge of the incumbrances." (1Roper on Husband and Wife, 582.)
I think the plaintiff was not bound to elect between the testamentary provision and the right to dower.
It is conceded by the defendant's counsel that a foreclosure suit is not an appropriate proceeding in which to litigate the rights of a party claiming title to the mortgaged premises in hostility to the mortgagor. This court has recently determined that where a party setting up such a claim is made a defendant in a bill to foreclose a mortgage, the decree will be held erroneous, and will be reversed, though made after a hearing upon pleadings and proofs. (Corning v. Smith, 2 Seld., 82.) But all claimants whose title is derived from the mortgagor subsequent to the mortgage are not only proper but necessary parties. It follows that a party claiming dower by a title paramount to the mortgage, cannot be brought into court in such a suit to contest the validity of her dower; but if she signed the mortgage, or if it was executed prior to the marriage, she must, like any other party having a claim upon the equity of redemption, be made a party to the bill of foreclosure. The plaintiff was married to the mortgagor long before the execution of the mortgage, and she did not join in it. But it is argued that the owner of the mortgage had a right to allege that her title was not paramount, but subject to the mortgage, that she was married after it was executed, or signed and acknowledged it, or the like; that the bill which was filed against her, properly construed, in connection with the rule of the court on the subject of foreclosure bills, does so allege in effect; and as she has suffered it to be taken as confessed, the decree and the sale under it has extinguished her title. It is argued that inasmuch as the rule forbids the complainant to set out the rights and interests of the defendants who hold under the mortgagor subsequent to the mortgage, and prescribes the general form of averment, in respect to all such parties, which is contained in this bill, it should be taken to embrace everything which it would have been necessary to allege in such a bill prior to the rule, and that thus the plaintiff in
this suit was called upon to assert the claim which she now sets up as a widow entitled to dower against the mortgage. The terms of the 132d rule of the late court of chancery, which is the one referred to, do not, I think, sustain this argument. It provides that "In a bill for the foreclosure or satisfaction of a mortgage, it shall not be necessary, or allowable, to set out at length the rights and interests of the several defendants who are purchasers of, or who have liens on, the equity of redemption in the mortgaged premises subsequent to the registry or recording of the complainant's mortgage, and who claim no right in oppositionthereto." It then goes on to prescribe the form of an averment in such cases, which was literally followed in the bill under examination. It does not appear that the plaintiff in this suit ever conceded the priority of the mortgage, or made any claim of her right of dower inconsistent with the one now set up; or that the complainant in the foreclosure suit ever supposed that she had a dower right in the equity of redemption alone. On the contrary, the averment referred to is followed by the allegation that the complainant is not informed what particular interest the defendants who are charged in it claim. This is not, therefore, a case within the rule. The plaintiff in this action was not a person who claimed no right in opposition to the mortgage. In the special case of a title to mortgaged premises, and a bona fide
controversy as to priority between it and the mortgage, the complainant in the foreclosure bill must state the facts upon which the question arises, as he insists they exist, according to the rules of equity pleading which prevailed antecedently to the rule referred to. If he omit to do this, it will be under the pain of being obliged to show, when the decree is relied upon collaterally, that the title alleged to be foreclosed was in fact subordinate to the mortgage. The statute declaring the effect of a foreclosure in chancery provides that the deed to be executed by the master "shall vest in the purchaser the same estate (andno other or greater) that would have vested in the mortgagee,
if the equity of redemption had been foreclosed, and such deeds shall be as valid as if the same were executed by the mortgagor and mortgagee, and shall be an entire bar against each of them and against all parties to the suit in which such sale was made, and against their heirs respectively, and all claiming under such heirs." (2 R.S., 192, § 158.) Taking all the expressions of the section together, it is obvious that the "entire bar" which is spoken of refers to rights and interests in the equity of redemption, and does not embrace interests which are paramount to the title of both mortgagor and mortgagee. Such interests would be other and greater than would have vested in the mortgagee if the equity of redemption had been foreclosed. It is not intended to decide that if a party claiming a title prior to the mortgage should be made a defendant and should answer and litigate the question, and should have a decree against him, it would not conclude him in a collateral action. In this case the title of the present plaintiff as doweress is not alluded to in the bill. She is only spoken of as the wife of the mortgagor incidentally, in repeating the language of the will, where the testator, calling her his wife, bequeaths to her his property and makes her his executrix. As a devisee of the mortgaged premises and an executrix of the mortgagor, the plaintiff was a necessary party to the bill; but in her character of his widow, entitled to dower by virtue of her coverture before the mortgage was given, she had nothing to do with the foreclosure. Having no defence to make as to her interest as devisee of the equity of redemption, and being unable to resist the claim to a decree against her for any ultimate deficiency, she had no motive for answering the bill. It made no claim and prayed for no relief which she could defend against. She therefore lost nothing in suffering it to be taken as confessed, and it presents no impediment to the recovery of her dower.
The judgment of the supreme court should be affirmed.