§ 201. When deemed to have elected. Where a woman is en titled to an election, as prescribed in either of the last two sections, she is deemed to have elected to take the jointure, devise or pecuniary provision, unless within one year after the death of her husband she enters upon the lands assigned to her for her dower, or commences an action for her dower. But, during such period of one year after the death of her said husband, her time to make such election may be enlarged by the order of any court competent to pass on the accounts of executors, administrators or testamentary trustees, or to admeasure dower, on an affidavit showing the pendency of a proceeding to contest the probate of the will containing such jointure, devise or pecuniary provision, or of an action to construe or set aside such will, or that the amount of claims against the estate of the testator can not be ascertained within the period so limited, or other reasonable cause, and on notice given to such persons, and in such manner, as such court may direct. Such order shall be indexed and recorded in the same manner as a notice of pendency of action in the office of the clerk of each county wherein the real property or a portion thereof affected thereby is situated. Formerly section 181, Real Property Law of 1896, chapter XLVI, General Laws: § 181. When deemed to have elected. Where a woman is entitled to an election, as prescribed in either of the last two sections, she is deemed to have elected to take the jointure, devise or pecuniary provision, unless within one year after the death of her husband she enters upon the lands assigned to her for her dower, or commences an action for her dower. But, during such period of one year after the death of her said husband, her time to make such election may be enlarged by the order of any court competent to pass on the accounts of executors, administrators or testamentary trustees, or to admeasure dower, on an affidavit showing the pendency of a procecding to contest the probate of the will containing such jointure, devise or pecuniary provision, or of an action to construe or set aside such will, or that the amount of claims against the estate of the testator can not be ascertained within the period so limited, or other reasonable cause, and on notice given to such persons, and in such manner, as such court may direct. Such order shall be indexed and recorded in the same manner as a notice of pendency of action in the office of the clerk of each county wherein the real property or a portion thereof affected thereby is situated.90 30 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. § 14. When a woman shall be entitled to an election, under either of the two last sections, she shall be deemed to have elected to take such jointure, devise or pecuniary provision, unless within one year after the death of her husband she shall enter on the lands to be assigned to her for her dower, or commence proceedings for the recovery or assignment thereof. This section of the Revised Statutes was amended by chapter 61, Laws of 1890 as follows: AN ACT to amend section fourteen of title three of chapter one of part two of the Revised Statutes, relating to estates in dower. Approved by the Governor March 22, 1890. Passed, three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: SECTION 1. Section fourteen of title three of chapter one of part two of the Revised Statutes is hereby amended so as to read as follows: § 14. When a woman shall be entitled to an election, under either of the two last sections, she shall be deemed to have elected to take such jointure, devise or pecuniary provision, unless within one year after the death of her husband she shall enter on the lands to be assigned to her for her dower, or commence proceedings for the recovery or assignment thereof. Where the time within which such election may be made has begun to run and has not expired, it may be enlarged by the order of any court competent to pass upon the accounts of executors, administrators or testamentary trustees, or to admeasure dower, upon an affidavit showing the pendency of a proceeding to contest the probate of the will containing such jointure, devise or pecuniary provision, or of action to construe or set aside such will, or that the amount of claims against the estate of the testator can not be ascertained within the period so limited, or other reasonable cause therefor. Notice of application for such order shall be given to such persons as the court may direct. And such order when granted shall be recorded and indexed in the same manner as a notice of a pendency of action in the office of the clerk of each county wherein such lands or any part thereof are situated. § 2. This act shall take effect immediately.91 The latter act was again amended by chapter 171, Laws of 1895, such amendment to take effect on the 1st day of January, 1896; but chapter 171, Laws of 1895, was repealed before it went into effect (Chap. 1022, Laws of 1895), and chapter 61, Laws of 1890,92 restored ipsissimis verbis. Intent of Section. The original revisers thought it best to prescribe the mode of evincing an election between a devise and dower, and also the time in which such election should be made.93 Effect of Section. This section has the force of a Statute of Limitations, and bars dower after the time specified has elapsed, unless the widow meanwhile die, or has entered or commenced an action 91 Repealed, chap. 547, Laws of 1896. 92 Supra, p. 731. 93 Note to I R. S. 742, § 14. for her dower,94 or had her time to make her election enlarged, as now prescribed in this section.95 Prior to the act of 1890, it was held that fraud might relieve a person from an agreement to accept a provision in lieu of dower, but could not enlarge the time to make the election or bring an action for dower.96 Effect of Widow's Neglect upon Her Election. How far it is incumbent upon the widow to make diligent effort to acquaint herself with the nature and extent of the estate before evincing her election is not always clear; but it is to be inferred that a supine reliance upon the statement of others may not defeat an election for fraud after the year has elapsed without effort to extend the time; although, as a general principle, it has been said that the widow's election is not binding without full knowledge of the nature and extent of the estate.97 Widow's Application to Extend Time for Her Election. When the widow applies for an order to extend her time to make her election, she should state reasonable cause for granting such order.98 Effect of Failure of Consideration. If a widow accept a testamentary provision in lieu of dower and it fail through any cause, equity will relieve her, provided the rights of creditors and purchasers have not intervened.99 But the mere fact that that which is taken in lieu of dower turns out of less value than dower is not sufficient in itself to set aside her acceptance; 1 she is a purchaser in effect by contract.2 94 Chamberlain v. Chamberlain, 43 N. Y. 424, 441; In the Matter, etc., of Zahrt, 94 id. 605, 610; Jones v. Fleming, 104 id. 418, 432; Akin v. Kellogg, 119 id. 441; Lee v. Timken, 10 App. Div. 213. Where widow dies pending election, see Doty v. Hendrix, 16 N. Y. Supp. 284; Flynn v. McDermott, 43 Misc. Rep. 513, 102 App. Div. 564, 183 N. Y. 62; Matter of Tisdale, 110 App. Div. 857. 95 Supra, chap. 61, Laws of 1890; now 201, Real Prop. Law. 96 Aken v. Kellogg, 16 Abb. N. C. 265; s. c. above, sub nom. Akin v. Kellogg, 39 Hun, 252, 119 N. Y. 441; cf. Hindley v. Hindley, 29 Hun, 318; Lee v. Timken, 10 App. Div. 213. 97 Cf. Hindley v. Hindley, 29 Hun, 318; Akin v. Kellogg, 119 N. Y. 441; s. c., 39 Hun, 252, 48 id. 459, 16 Abb. N. C. 265; Lee v. Tower, 124 N. Y. 370, 375, 376; Lee v. Timken, 10 App. Div. 213. 98 Bradhurst v. Field, 32 N. Y. St. Rep. 430; s. c., 10 N. Y. Supp. 452. 99 Hone v. Van Schaick, 7 Paige, 221, 223; Akin v. Kellogg, 119 N. Y. 441, 450; cf. Chamberlain v. Chamberlain, 43 id. 424; Matter of Benson, 96 id. 499, 507. 1 Lee v. Tower, 124 N. Y. 370, 375; Akin v. Kellogg, 48 Hun, 459; s. c., 16 N. Y. St. Rep. 428. 2 Hathaway v. Hathaway, 37 Hun, 265. Election. Within the time prescribed by this section, the widow's election must be express and definitive, not constructive. The right of election is personal, unless she is insane at the time, when the practice in this State does not seem clear.* 3 Flynn v. McDermott, 183 N. Y. 62. 4 Camardella v. Schwartz, 126 App. Div. 334. § 202. When provision in lieu of dower is forfeited. Every jointure, devise and pecuniary provision in lieu of dower is forfeited by the woman for whose benefit it is made in a case in which she would forfeit her dower; and on such forfeiture, an estate so conveyed for jointure, or devised, or a pecuniary provision so made, immediately vests in the person or legal representatives of the person in whom they would have vested on the determination of her interest therein, by her death. Formerly section 182, Real Property Law of 1896, chapter XLVI, General Laws: § 182. When provision in lieu of dower is forfeited.— Every jointure, devise and pecuniary provision in lieu of dower is forfeited by the woman for whose benefit it is made in a case in which she would forfeit her dower; and on such forfeiture, an estate so conveyed for jointure, or devised, or a pecuniary provision so made, immediately vests in the person or legal representatives of the person in whom they would have vested on the determination of her interest therein, by her death.5 Formerly Revised Statutes, 742, section 15: $ 15. Every jointure, devise and every pecuniary provision in lieu of dower, shall be forfeited by the woman for whose benefit it shall be made, in the same cases in which she would forfeit her dower; and upon such forfeiture, any estate so conveyed for jointure, and every pecuniary provision so made, shall immediately vest in the person or his legal representatives, in whom they would have vested on the determination of her interest therein, by the death of such woman." Comment. Prior to this provision in the Revised Statutes a jointure was not barred or forfeited, as was dower, by the wife's elopement or living in adultery; nor was it forfeited after the Divorce Act of 17878 by a divorce a vinculo matrimonii. The original revisers deemed it desirable to make the law uniform and to forfeit wife's jointure and settlements in lieu of dower, whenever dower was forfeited." When Dower is Forfeited. Section 196 of this act10 provides that a divorce dissolving the marriage contract for the misconduct of the wife, forfeits dower. It is not the misconduct alone which forfeits her dower, but the sentence of divorce.11 5 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Conso idated Laws. See below, $ 460. 6 Repealed, chap. 547, Laws of 1896. 7 See the former English acts discussed under § 196, Real Prop. Law, supra, p. 714, 8 Supra, p. 714. 9 Note of revisers to 1 R. S. 742, 15, and 196, Real Prop. Law; cf. Forrest v. Forrest, 3 Bosw. 661, 695. 10 Supra, p. 714 |
