Erie County NyArchives Court.....Sidway, Eliza Vs. Isabel Sidway 1889
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/ny/nyfiles.htm
************************************************
File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 2, 2008, 10:27 am

Source: Reports Of Cases - New York
Written: 1889

Fifth Department, March Term, 1889.

ELIZA D. SIDWAY, Respondent, v. ISABEL SIDWAY, Appellant.

Acceptance of a gross sum in lieu of dower—property to be valued as of the time 
of its first alienation—effect upon such valuation, of a mortgage given to cover 
the expense, of improvements on the property.

By the death of John J. Sidway in October, 1882, intestate, William J. Sidway, 
his sole heir-at-law, became the owner in fee of certain real property, subject 
to the dower right therein of his mother. In January, 1883, the mother and 
William J. Sidway united in the execution of a mortgage on the premises for the 
sum of $20,000, all of which sum was expended in improvements on the same 
premises, which were completed before the commencement of the action herein 
after mentioned, and which, were then, and continued to be, of the full value of 
the money expended in making them. 

By the death of William J. Sid way, and the subsequent birth and death of a 
posthumous child, his widow, the mother of said child, became the owner in fee 
of the premises subject to the dower of the plaintiff. 

In an action, brought by the widow of John J. Sid way for the admeasurement of 
her dower in the premises, in which she consented to receive a gross sum in lieu 
thereof:

Held, that such gross sum should be computed upon the value of the property at 
the date of the alienation, namely, in this case, at the date of the succession 
by William J. Sidway, the first heir.

That, as the charge by way of mortgage was created upon the land by the joint 
act of the doweress and the owner of the fee, and was for the improvement of the 
land itself, and resulted in increasing its value to precisely the extent of the 
charge created upon it, the value of the inheritance was unchanged, and that, 
therefore, there was nothing in that transaction to affect in any measure the 
interest of the doweress.

Humphrey v. Phinney (2 Johns., 484); Catlin v. Ware (9 Mass., 217) distinguished.

Appeal from a judgment, entered in the office of the clerk of the county of Erie 
on the 3d day of May, 1888, upon the report of a referee.

The action was brought to admeasure the dower of the plaintiff.

G. T. Quimby, for the appellant. 

W. L. Marcy, for the respondent. 

Dwight, J.:

A very simple statement of the problem presented by this appeal seems to us to 
demonstrate its correct solution by the referee. By the death of John J. Sidway 
in October, 1882, intestate, William J. Sidway, his sole heir-at-law, became the 
owner in fee of the premises in question, subject only to the right of dower of 
the plaintiff, his mother. The property was then worth the sum of $26,500. In 
January, 1883, the plaintiff and William J. Sidway united in the execution of a 
mortgage on the premises for the sum of $20,000, and obtained thereon a loan of 
that sum of money, all of which was expended in improvements on the same 
premises, completed before the commencement of this action, and which were then 
and are now of the full value of the money expended therein. By the death of 
William J. Sidway in June, 1885, and the subsequent birth and death of his 
posthumous child, the defendant, his widow and the mother of such child, became 
the owner in fee of the premises, subject to the dower of the plaintiff.

The latter having commenced this action for the admeasurement of her dower, and 
having consented to receive a gross sum in lieu thereof, the question is, upon 
what value shall such gross sum be computed? The answer is, upon the value of 
the property at the date of alienation, viz., in this case at the date of 
succession by the first heir. Such is the general rule, which is not questioned 
here (Walker v. Schuyler, 10 Wend., 480; Marble v. Lewis, 53 Barb., 432), and 
there is nothing, as we conceive, in this case to take it out of the rule. There 
is a case in which a rule more onerous to the heir has been declared, viz., 
where the heir has improved the land after descent and before assignment of 
dower. In such case it has been held, in this State and in Massachusetts, that 
the widow shall have dower in the improvements also. (Humphrey v. Phinney, 2 
Johns., 484; Catlin v. Ware, 9 Mass., 217.) Of course, if the doweress has 
joined in the conveyance of a portion of the land, or in the creation of a 
charge upon it, or in any other act which detracts from the value of the 
inheritance, she must submit to a corresponding depreciation of her dower. But 
this case is in neither of the categories supposed. The charge created upon this 
land was by the joint deed of the doweress and the owner of the fee, and it was 
for the improvement of the land itself, and resulted in the appreciation of its 
value to precisely the extent of the charge created upon it. The value of the 
inheritance was unchanged, and there was, therefore, nothing in the transaction 
to affect, in any measure, the interest of the doweress, or, as we have said, to 
take the case out of the rule that dower is to be computed upon the value of the 
property as it was at the date of succession by the heir.

Such was the conclusion of the referee in this case, and the judgment entered 
accordingly must be affirmed.

Barker, P. J., concurred; Childs, J., not voting.

Judgment affirmed, with costs.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

File at: http://files.usgwarchives.net/ny/erie/court/sidway743gwl.txt
This file has been created by a form at http://www.genrecords.org/nyfiles/

File size: 6.1 Kb