Hotchkiss, J.:
In February, 1890, certain premises in this city were conveyed by Gedney to the defendant Livermore. The consideration for such conveyance was paid in part by Henry P. Lugar and in part by the grantee Livermore, the latter paying $3,000. At the time of the conveyance the premises were subject to a [808]*808first mortgage of $14,000, of which $2,000 has since been paid by Livermore, who has also paid and satisfied a second mortgage for $963.50, which also was a lien on the premises at the time of said conveyance. The conveyance to Livermore was made pursuant to an oral arrangement between him and said Lugar, by which Livermore agreed to take the title in trust, to receive the rents, pay for repairs and necessary improvements, taxes and the interest on the two mortgages, and also to pay or renew the mortgages or any part thereof at such times as might to him seem expedient, “ and make such other payments, loans and advances as the said Henry P. Lugar might direct or require,” with power to sell, and from the proceeds, together with the rents, “ reimburse himself for all moneys disbursed by him,” with interest on yearly balances in his favor, and after the death of said Lugar “to distribute the balance of any moneys derived from the said rents, issues and profits and to distribute any interest in the said land and premises to which said Henry P. Lugar may be entitled at his death in the manner and to the persons to whom ” Lugar “ might name and appoint in his last will and testament.” The premises were never conveyed by Livermore and are still held by him pursuant to said agreement. Henry P. Lugar died September 10, 1895, leaving a will by which he devised his interest in the premises in undivided shares to his widow, his daughter Marion, one of the defendants and to his son Charles, to whom he gave one-third. Thereafter the widow died and devised her share to Marion. In May, 1893, Charles married the defendant Minnie, who in December, 1898, procured from Charles an absolute divorce by decree of our Supreme Court. The plaintiff is the sole issue of that marriage. In December, 1906, Charles married the appellant Catherine in the State of Connecticut, and in July, 1909, he died intestate. This action was brought by Helen to determine the interest of herself and, as well, the interest of Minnie, the ‘divorced wife of Charles, and of Catherine, his widow, in the premises; for an accounting by Livermore, and for a decree directing him to convey to Helen 'and Marion, according to their respective interests, after he should have been reimbursed for all moneys due to him. Livermore appeared at the trial, and the court [809]*809"below decreed the amount due him; that he holds the premises in trust pursuant to said agreement; that neither Minnie nor Catherine is entitled to dower in the premises which, subject to Livermore’s right to reimbursement for moneys due, belongs to Helen and Marion; that Livermore “has the right and power to sell,” and that “ upon any sale ” he divide the proceeds as above. The court has also decreed that, on paying to Liver • more his due, the costs, etc., Minnie and Marion were entitled to a conveyance from him for their respective undivided interests in the premises. Neither Livermore nor Minnie has appealed, and the question is whether the sole appellant, Catherine, is entitled to dower in the premises. Inasmuch as Livermore does not appeal, it must be presumed that he does not dispute the alleged trust agreement, and that he never has disputed it, the latter presumption being strengthened by the fact that the findings of the trial court show that, in the course of his ' administration, he has collected upwards of $33,000 from rents, and has paid to the defendant Marion and her deceased mother, Mary, upwards of $1,500, and to the plaintiff and her deceased father, Charles, upwards of $1,500. Conceding for the argument that the oral agreement was void to the extent that no trust resulted in favor of Henry or his heirs or devisees (3 R. S. [5th ed.] 15, § 51; R. S. pt. 2, chap. 1, tit. 2, art. 2, § 51; 1 R. S. 128, § 51), nevertheless, I know of no law which prevented Livermore from treating it as valid and accepting .and performing its duties, and when he has come into court and has given his express consent to recognize and ‘ adopt the agreement, has accounted for the moneys coming into his hands, and has failed to appeal from the court’s .decree charging him with a trust, passing his accounts, establishing his equities and the equities of those interested in the land or its net proceeds, and directing him „to convey to the owners of the fee, on proper tender made, it seems to me that we have the relations of the parties "from the day of the deed to this date as firmly and solemnly established as they could have been had they been expressed by formal instrument executed cotemporaneously with the deed. So expressed, the instrument would have been enforcible. (Woerz v. Rademacher, 120 N. Y. 62.) In this situation, was the estate of Henry and [810]*810his devisees a dowable estate ? It will be noted that Henry died before the former Beal Property Law (Gen. Laws, chap. 46 [Laws of 1896, chap. 547], § 170) was enacted and while the Bevised Statutes were still in effect. Under the Bevised Statutes (3 R. S. [5th ed.] 31, § 1; R. S. pt. 2, chap. 1, tit. 3, § 1; 1 B. S. 740, § 1) — the present Beal Property Law (Consol. Laws, chap. 50 [Laws of 1909, chap. 52], § 190) is the same — a widow was entitled to dower in “all the lands whereof her husband was seised of an estate of inheritance at any time during the marriage.” Whether this was merely declaratory of the established common law (House v. Jackson, 50 N. Y. 161, 164), or was an adoption of a controverted principle (Hawley v. James, 5 Paige, 318, 320, 452, 453), is immaterial. In either case,' a widow had her “equitable dower in lands in which the husband had an inheritable interest at the time of his death.” (Id.) Authority other than the statute is unnecessary to show that estates of inheritance include any equitable interest which is not extinguished by the death of him entitled thereto. (3 B. S. [5th ed.] 44, § 28; B. S. pt. 2, chap. 2, § 27; IB. S. 754, § 27.) Seizin in fact in the husband is unnecessary; seizin in law satisfies the statute. (Durando v. Durando, 23 N. Y. 331.) Seizin in law, as defined by Bouvier, is “aright of immediate possession.” Had the relations between Henry and Livermore been reduced to writing, the instrument, while insufficient to create an express trust, would have conferred upon Livermore an enforcible power in trust, the legal'estate remaining in Henry. (Woerz v. Rademacher, supra, 67, 68.) That such an estate was one of inheritance is apparent, and that it was dowable was decided in Hawley v. James (5 Paige, 318, 319, 451-457). Henry having devised his estate in part to Charles, his son, Charles likewise became seized of the same estate. The cases of Phelps v. Phelps (143 N. Y. 197) and Nichols v. Park (78 App. Div. 95) are not hr point, for in each, because of the void oral agreement, the husband was held never to have had any estate whatever in the premises. The same result is reached from another point of view. It is found as a fact that, although Henry paid part of the consideration, the remainder was paid by Livermore, and that one of the purposes of the conveyance [811]
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Hotchkiss, J.:
In February, 1890, certain premises in this city were conveyed by Gedney to the defendant Livermore. The consideration for such conveyance was paid in part by Henry P. Lugar and in part by the grantee Livermore, the latter paying $3,000. At the time of the conveyance the premises were subject to a [808]*808first mortgage of $14,000, of which $2,000 has since been paid by Livermore, who has also paid and satisfied a second mortgage for $963.50, which also was a lien on the premises at the time of said conveyance. The conveyance to Livermore was made pursuant to an oral arrangement between him and said Lugar, by which Livermore agreed to take the title in trust, to receive the rents, pay for repairs and necessary improvements, taxes and the interest on the two mortgages, and also to pay or renew the mortgages or any part thereof at such times as might to him seem expedient, “ and make such other payments, loans and advances as the said Henry P. Lugar might direct or require,” with power to sell, and from the proceeds, together with the rents, “ reimburse himself for all moneys disbursed by him,” with interest on yearly balances in his favor, and after the death of said Lugar “to distribute the balance of any moneys derived from the said rents, issues and profits and to distribute any interest in the said land and premises to which said Henry P. Lugar may be entitled at his death in the manner and to the persons to whom ” Lugar “ might name and appoint in his last will and testament.” The premises were never conveyed by Livermore and are still held by him pursuant to said agreement. Henry P. Lugar died September 10, 1895, leaving a will by which he devised his interest in the premises in undivided shares to his widow, his daughter Marion, one of the defendants and to his son Charles, to whom he gave one-third. Thereafter the widow died and devised her share to Marion. In May, 1893, Charles married the defendant Minnie, who in December, 1898, procured from Charles an absolute divorce by decree of our Supreme Court. The plaintiff is the sole issue of that marriage. In December, 1906, Charles married the appellant Catherine in the State of Connecticut, and in July, 1909, he died intestate. This action was brought by Helen to determine the interest of herself and, as well, the interest of Minnie, the ‘divorced wife of Charles, and of Catherine, his widow, in the premises; for an accounting by Livermore, and for a decree directing him to convey to Helen 'and Marion, according to their respective interests, after he should have been reimbursed for all moneys due to him. Livermore appeared at the trial, and the court [809]*809"below decreed the amount due him; that he holds the premises in trust pursuant to said agreement; that neither Minnie nor Catherine is entitled to dower in the premises which, subject to Livermore’s right to reimbursement for moneys due, belongs to Helen and Marion; that Livermore “has the right and power to sell,” and that “ upon any sale ” he divide the proceeds as above. The court has also decreed that, on paying to Liver • more his due, the costs, etc., Minnie and Marion were entitled to a conveyance from him for their respective undivided interests in the premises. Neither Livermore nor Minnie has appealed, and the question is whether the sole appellant, Catherine, is entitled to dower in the premises. Inasmuch as Livermore does not appeal, it must be presumed that he does not dispute the alleged trust agreement, and that he never has disputed it, the latter presumption being strengthened by the fact that the findings of the trial court show that, in the course of his ' administration, he has collected upwards of $33,000 from rents, and has paid to the defendant Marion and her deceased mother, Mary, upwards of $1,500, and to the plaintiff and her deceased father, Charles, upwards of $1,500. Conceding for the argument that the oral agreement was void to the extent that no trust resulted in favor of Henry or his heirs or devisees (3 R. S. [5th ed.] 15, § 51; R. S. pt. 2, chap. 1, tit. 2, art. 2, § 51; 1 R. S. 128, § 51), nevertheless, I know of no law which prevented Livermore from treating it as valid and accepting .and performing its duties, and when he has come into court and has given his express consent to recognize and ‘ adopt the agreement, has accounted for the moneys coming into his hands, and has failed to appeal from the court’s .decree charging him with a trust, passing his accounts, establishing his equities and the equities of those interested in the land or its net proceeds, and directing him „to convey to the owners of the fee, on proper tender made, it seems to me that we have the relations of the parties "from the day of the deed to this date as firmly and solemnly established as they could have been had they been expressed by formal instrument executed cotemporaneously with the deed. So expressed, the instrument would have been enforcible. (Woerz v. Rademacher, 120 N. Y. 62.) In this situation, was the estate of Henry and [810]*810his devisees a dowable estate ? It will be noted that Henry died before the former Beal Property Law (Gen. Laws, chap. 46 [Laws of 1896, chap. 547], § 170) was enacted and while the Bevised Statutes were still in effect. Under the Bevised Statutes (3 R. S. [5th ed.] 31, § 1; R. S. pt. 2, chap. 1, tit. 3, § 1; 1 B. S. 740, § 1) — the present Beal Property Law (Consol. Laws, chap. 50 [Laws of 1909, chap. 52], § 190) is the same — a widow was entitled to dower in “all the lands whereof her husband was seised of an estate of inheritance at any time during the marriage.” Whether this was merely declaratory of the established common law (House v. Jackson, 50 N. Y. 161, 164), or was an adoption of a controverted principle (Hawley v. James, 5 Paige, 318, 320, 452, 453), is immaterial. In either case,' a widow had her “equitable dower in lands in which the husband had an inheritable interest at the time of his death.” (Id.) Authority other than the statute is unnecessary to show that estates of inheritance include any equitable interest which is not extinguished by the death of him entitled thereto. (3 B. S. [5th ed.] 44, § 28; B. S. pt. 2, chap. 2, § 27; IB. S. 754, § 27.) Seizin in fact in the husband is unnecessary; seizin in law satisfies the statute. (Durando v. Durando, 23 N. Y. 331.) Seizin in law, as defined by Bouvier, is “aright of immediate possession.” Had the relations between Henry and Livermore been reduced to writing, the instrument, while insufficient to create an express trust, would have conferred upon Livermore an enforcible power in trust, the legal'estate remaining in Henry. (Woerz v. Rademacher, supra, 67, 68.) That such an estate was one of inheritance is apparent, and that it was dowable was decided in Hawley v. James (5 Paige, 318, 319, 451-457). Henry having devised his estate in part to Charles, his son, Charles likewise became seized of the same estate. The cases of Phelps v. Phelps (143 N. Y. 197) and Nichols v. Park (78 App. Div. 95) are not hr point, for in each, because of the void oral agreement, the husband was held never to have had any estate whatever in the premises. The same result is reached from another point of view. It is found as a fact that, although Henry paid part of the consideration, the remainder was paid by Livermore, and that one of the purposes of the conveyance [811]*811was to enable him to reimburse himself “for all moneys disbursed by him,” from which it may be inferred that he was authorized to reimburse himself for the part of the consideration he had paid, as well as for his subsequent disbursements, thus constituting him a mortgagee, the equitable title remaining in Henry, descending to his heirs, subject to Livermore’s hen (Carr v. Carr, 52 N. Y. 251, affg. 4 Lans. 314, where the facts are more fully stated), and entitling Henry’s widow to dower (Bowery Nat. Bank v. Duncan, 12 Hun, 405), and likewise the widow of Charles. One further consideration would seem to put the question at issue beyond doubt. The only estate vested in the respondent Helen (and in Marion as well) is such as has come to her by means of the agreement with Livermore, and not otherwise. She claims under the will of Henry and as the heir of Charles, Henry’s devisee; and the appellant Catherine claims as the widow of Charles. These facts justify us in holding that the respondent Helen is estopped to deny either the validity of Henry’s estate or the inheritable nature of her father Charles’ estate thereunder. (Sherwood v. Vandenburgh, 2 Hill, 303.)
The judgment should be modified by striking from the third conclusion of law so much thereof as denies to the appellant Catherine dower in the undivided one-third part of the premises belonging to Helen, and substituting therefor one or more findings in conformity to this opinion, and as so modified the judgment should be affirmed, with costs to the appellant.
Clarke, J., concurred; Ingraham, P. J., and Dowling, J., dissented.