App. Div.]

FIRST DEPARTMENT, OCTOBER, 1904.

Elizabeth married Charles B. Nichols and had died intestate; that a child had been born of the marriage and that Mrs. Nichols was survived by her husband. It further appeared that subsequent to the intestate's death, all of the parties in interest, including the daughter Elizabeth, executed an agreement and deed with reference to the real estate, reciting as follows: "That the first claims* upon said premises and the issues and rents therefrom is that of the widow Rachel Howells, as dowress, and is one-third of the net rents of said premises for her life. That subject to such dower the parties hereto now stand seized in fee simple absolute of the following undivided interests in said premises, to wit: Rachel Howells is seized of a full undivided two-thirtieths part. therein, and John H. Howells, Elizabeth Nichols, Rhoda Hoffman and Martha Howells are each seized of a full undivided seven-thirtieth part therein; and the contracting parties hereto hereby mutually grant, bargain and sell, remise, release, convey and confirm said premises inter se, so that each stands seized of the undivided interest last above respectively ascribed to the said contracting parties, each of whom is to have and to hold his or her said share in said premises to himself or to herself (as the case may be) and to his or to her use and to the use and benefit of their respective heirs and assigns forever, subject only to the terms of this writing."

Held, that in determining the value of the estate by the curtesy vested in the husband of the intestate's daughter Elizabeth, the widow's dower should be deducted from the seven-thirtieths part of the premises of which the testator's daughter Elizabeth died seized;

That when property out of which dower is to be assigned is in itself indivisible and, therefore, will not admit of setting apart a portion by metes and bounds, an allotment may be made to the widow of her proportionate share of rents and profits issuing from the entire property;

That agreements inter partes constituting assignments or admeasurements of dower are recognized by the courts as effectual for that purpose, where the intention is clearly manifested;

That the agreement and deed executed between the parties constituted a sufficient assignment of dower to the intestate's widow, and that there was no merger of that dower in any superior estate;

That a party to a partition action, who has consented to the entry of a final judgment fixing and determining the respective rights of the parties, cannot question the correctness of such determination on a motion to confirm the report of the referee appointed to make distribution of the proceeds of sale.

APPEAL by the defendant, Charles B. Nichols, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of May, 1904, confirming the report of a referee.

William H. Hirsh, for the appellant.

FIRST DEPARTMENT, OCTOBER, 1904.

[Vol. 97.

Merle I. St. John, for the plaintiffs, respondents.

William H. Fain, for the respondents, Mary J. McGraw and others.

PATTERSON, J.:

In an action for the partition of real property, and after the premises had been sold under final judgment, a referee was appointed to make distribution of the proceeds of sale among the parties entitled, according to their respective interests in such proceeds. His report was made to the court and was confirmed. The order of confirmation is appealed from by the defendant Charles B. Nichols, whose relation to the property and whose particular claim urged on this appeal will be hereinafter referred to. The property belonged to John Howells, who died seized of it and intestate on the 16th day of May, 1875. It consisted of a lot of ground with a building thereon in the city of New York. Mr. Howells left him surviving a widow, the plaintiff Rachel Howells, and several children, among whom was his daughter Elizabeth, who married Charles B. Nichols, the present appellant. There was a child born the issue of this marriage, but that child died. Mrs. Nichols died intestate, her mother survived her and is still alive. Charles B. Nichols claims and has an interest as tenant by the curtesy in the share to which his wife was entitled, and the subject discussed on this appeal is the extent of such interest.

After the death of John Howells the widow and children, or some of them, resided on the premises in question for many years. The interests of some of the parties, as they existed at the death of John Howells, were changed from time to time by conveyances, to which it is not necessary to refer particularly, except to state that on the 29th of January, 1897, all of the parties in interest - among them Elizabeth Nichols, wife of Charles B. Nichols entered into an agreement and executed a deed by which their respective interests were declared and defined. The 2d clause of that agreement is as follows: "That the first claims * upon said premises and the issues and rents therefrom is that of the widow Rachel Howells, as dowress, and is one-third of the net rents of said premises for her

App. Div.]

FIRST DEPARTMENT, OCTOBER, 1904.

life. That subject to such dower the parties hereto now stand seized in fee simple absolute of the following undivided interests in said premises, to wit: Rachel Howells is seized of a full undivided two-thirtieths part therein, and John H. Howells, Elizabeth Nichols, Rhoda Hoffman and Martha Howells are each seized of a full undivided seven-thirtieth part therein; and the contracting parties. hereto hereby mutually grant, bargain and sell, remise, release, convey and confirm said premises inter se, so that each stands seized of the undivided interest last above respectively ascribed to the said contracting parties, each of whom is to have and to hold his or her said share in said premises to himself or to herself (as the case may be) and to his or to her use and to the use and benefit of their respective heirs and assigns forever, subject only to the terms of this writing."

The terms of that agreement and deed are controlling as to the interests of the parties as they were thereby declared to exist by such parties themselves. When the action for partition was brought and it appeared that the plaintiff Rachel Howells had a dower interest, and the defendant Charles B. Nichols an interest as tenant by the curtesy in his wife's share, they elected to take a specific gross sum in lieu of their respective interests, and each aided in expediting the action. The defendant Charles B. Nichols, in his answer, alleges that his title or interest in the property as a tenant. by the curtesy is an undivided seven-thirtieth part, subject to the right of dower of the widow, Rachel Howells, and thus he acknowledges that his wife's share was subject to her mother's dower, which is only in accordance with the terms of the agreement and deed herein before mentioned. In addition to that, the report of the referee upon title, which was confirmed by the court, states that "Rachel Howells as widow of said John Howells is entitled to her full thirds and dower in said entire premises, and that subject to this the shares and interests of each of the parties seized in and possessed of said real estate are respectively as follows:" (naming them) including the appellant's interest as tenant by the curtesy, and that interest is declared to be one hundred and five four hundred and fiftieths of the real estate; that fractional part being ascertained after computing the dower right of Rachel Howells in the whole estate. The defendant Charles B. Nichols consented to the confirmation

FIRST DEPARTMENT, OCTOBER, 1904.

[Vol. 97.

and filing of that report, after which final judgment was entered. By that final judgment it is provided that the referee "shall pay to the defendant Charles B. Nichols, tenant by the curtesy in the share or part of said real estate of which his late wife, Elizabeth Nichols, died seized, being a life estate in an undivided seventhirtieths part, subject to the said right of dower of said Rachel Howells, and in present satisfaction and release of his tenancy by the curtesy, such gross sum as is provided to be paid by law and by the rules of this court." Charles B. Nichols consented to the entry of that judgment, and the rights of all the parties were thereby conclusively fixed. Thus, by the determination of the Supreme Court, based upon the acquiescence of Charles B. Nichols, it is established that his interest as tenant by the curtesy extended only to such parts or so much of the share of his deceased wife in the premises as were freed from claim to dower; and as the learned judge before whom this matter came at the Special Term said, Charles B. Nichols is now precluded from questioning rights which have been definitely settled and fixed by the final judgment herein.

Apart, however, from the ground upon which the court below confirmed the report of the referee making distribution of the proceeds of sale, the present contention of the appellant Nichols cannot be sustained. It is that he is entitled to have his interest computed on the whole estate his wife would have been entitled to in any event. The referee was right in computing the value of that interest after deducting the widow's dower therein. In Matter of Cregier (1 Barb. Ch. 600) it is said: "Where the husband takes land by descent from his father subject to the dower of his mother in the same and the dower is afterwards assigned to her, such assignment relates back to the death of the father, so as to deprive the widow of the son who dies in the lifetime of his mother of dower even in the reversion of the third of the estate which is assigned to the mother for dower. (Dunham v. Osborn, 1 Paige's Rep. 634.) And upon the same principle, where the estate descends to a daughter who is a feme covert, and who dies in the lifetime of the mother to whom dower in the premises is subsequently assigned, the husband of such daughter will not be entitled to an estate by the curtesy in the third of the premises which is thus assigned to the widow of his wife's father, for dower; even after the termination of the life

App. Div.]

FIRST DEPARTMENT, OCTOBER, 1904.

estate of such widow in that third of the premises. (Reynolds v. Reynolds, 5 Paige's Rep. 161.)”

In the case at bar there was an assignment of dower or its equivalent. There was none by judicial proceeding or determination, nor was there any specific land set apart to the dowress, but at common law the rule is well established that when property out of which dower is to be assigned is in itself indivisible and, therefore, will not admit of setting apart a portion by metes and bounds, an allotment may be made to the widow of her proportionate share of rents and profits issuing from the entire property. (White v. Story, 2 Hill, 548; Van Gelder v. Post, 2 Edw Ch. 579; Coates v. Cheever, 1 Cow. 463.)

Agreements inter partes constituting assignments or admeasurements of dower are recognized by the courts as effectual for that purpose, where the intention is clearly manifested. (Aikman v. Harsell, 98 N. Y. 192.) In this case that intention appears. The prior claim on all the premises is that of the widow. She is apportioned one-third of net rents during her life, and it is provided in the agreement that the property shall not be sold during her lifetime without her consent. Her dower interest is not created by the deed of 1897. Its existence is recognized, and there is that set apart to her from which she can realize that interest during her lifetime. In our judgment that deed constituted a sufficient assignment of dower, and there was no merger of that dower in any superior estate.

The order appealed from should be affirmed, with costs.

VAN BRUNT, P. J., O'BRIEN, HATCH and LAUGHLIN, JJ., concurred.