Dunn v. Huether

By title 6, art. 4, c. 17, Code, §§2320-2340, inclusive, this court is given the custody of the person and the care of the property of a person incompetent to manage himself or his affairs in consequence of lunacy, idiocy, or habitual drunkenness, and in this city the court of common pleas has concurrent jurisdiction with this court as to the custody of the person and the care of the property of such persons. The power of the court, however, is limited by the provisions of this title, and there is no express authority given for the court, or the committee appointed by the court, to dispose of the property of the lunatic. Section 2339 provides that the committee, either of the person or the property, is subject to the direction and control of the court by which he was appointed, with respect to the execution of his duties; but this direction and control cannot be construed to authorize the court to direct an extinguishment by the committee of the inchoate right of dower of the lunatic. There is no express provision as to the powers of the committee when appointed, but by section 2321 the court must preserve the lunatic’s property from waste and destruction, and out of the proceeds must provide for the payment of his debts, and for the safekeeping and maintenance and the education, when required, of an incompetent person and his family; and section 2339 provides that the committee of the property cannot alien, mortgage, or otherwise dispose of real property, except to lease it for a term not exceeding five years, without the special direction of the court, obtained upon proceedings taken for that purpose, as prescribed in title 7 of the chapter. I do not think that the court is by this title given any power to divest a lunatic of her inchoate right of dower in her husband’s property; none certainly is expressly given, and 1 do not think it is given by implication. Section 2348 provides for the application to sell the real property of the lunatic, and authority is there given to the court to order the sale, conveyance, mortgage, or lease of the real property, or a term, estate, or other interest in real property, belonging to the incompetent person. It has been held in the case of *724Witthaus v. Schack, 105 N. Y. 336, 11 N. E. Rep. 649, that an inchoate right of dower is not an interest in land at all, but is a contingent claim, arising, not out of contracts, but as an institution of law, constituting a mere chose in action, incapable of transfer by grant or conveyance, but susceptible only during its inchoate state of extinguishment, and such extinguishment can only be effected by the act of the wife in joining with her husband in the execution of a deed of land by force of the statute. By section 16, c. 1, tit. 3, pt. 2,1 Rev. St., it is provided that “no act, deed, or conveyance executed or performed by the husband, without the assent of his wife, evidenced by her acknowledgment thereof in the manner required by law to pass the estates of married women, * * * shall prejudice the right of his wife to her dower or jointure, or preclude her from the recovery thereof, if otherwise entitled thereto. ” I think, therefore, that as this court, or the committee appointed by the court, is not directly authorized by statute to execute an instrument by which this inchoate right of dower shall be extinguished, and as the provision of the Code authorizing the sale of the lunatic’s property does not include an inchoate right of dower, and as the provisions of the Revised Statutes before cited provides that no deed of the husband, without the assent of the wife, shall prejudice the right of the wife to her dower, or preclude her from the enforcement thereof, the act of the committee in joining with the husband in executing a deed of the property in which the wife has such an inchoate right of dower would not extinguish such right, and that in consequence thereof the deed tendered by the vendor would not pass a title in the grantee free from the wife’s dower. Huether is therefore entitled to judgment for the recovery of $500, with interest from October 17, 1891, together with the sum of $130, the amount agreed upon as the expenses for examining the title, and judgment should be ordered accordingly.

Van Brunt, P. J., and O’Brien, J. The papers submitted do not conform to the provision of the statute, in that no statement of facts is agreed to, and the submission is not in the form of an action; but as the questions have been examined, and we concur in the foregoing opinion, we have concluded so to decide the question.