Eliza Moore against The Mayor, Aldermen and Commonalty of the city of New York, 8 N.Y. 110

Gardiner, J. The statute under which the corporation of the city of New York makes title to the premises claimed by the plaintiff, authorizes the commissioners appointed by the supreme court to make “a just estimate of the damage to the respective owners, lessee's, parties and-persons respectively entitled unto or interested in the lands, tenements and hereditaments proposed to be appropriated to the use of the city. (Laws 1817, Ch. 75, § 1.) A subsequent clause in the same

section provides that the report of the commissioners, when confirmed, shall vest the fee simple absolute in the lands so appropriated in the city, and the proceedings are made conclusive upon the corporation, and upon the owners and persons and parties interested in or entitled to such lands, “and all other persons whomsoever.” The question is whether the possibility of dower accruing to the wife after marriage, but before the death of the husband, is an interest in law, within the purview of this statute.

Before assignment of dower, the widow has no estate, but a mere right in action, or.claim which can not be sold upon execution. (2 Coms. 254; Greenleaf's Cruise Dig. Title Dower, Ch. 3, § 1, note Gooch v. Atkins, 14 Mass.378.) If this is the true character of the right of the widow prior to the assignment, that of a wife must be a right to a claim for dower, contingent upon her surviving her husband. Such a possibility may be released, but it is not, it is believed, the subject of grant or assignment, nor is it in any sense an interest in real estate.

It is not of itself property, the value of which may be estimated, but an inchoate right, which, on the happening of certain events, may be consummated so as to entitle the widow to demand and receive a freehold estate in the land, if she survived her husband. The estate of the widow after assignment of dower is a continuation of the estate of her deceased husband. ( Cruise, Dower, T. 6, Ch. 2, § 17.) It follows that', while living, he, as owner, is entitled to and represents the absolute fee.

This the statute vests, on confirmation of the report of the commissioners, and concludes all those entitled to the land, and all other persons whomsoever. Mrs. Moore, at the time of the proceedings to appropriate the real estate, was not, as we have seen, entitled to it, but her husband; and she was concluded by the general language of the act, if the statute was not in contravention of the provision of the constitution of the United States, which prohibits the state from passing any law impairing the obligation of contracts.

Dower is not the result of contract, but a positive institution of the state, founded on reasons of public policy. To entitle to dower, it is true, there must be a marriage, which our law regards in some respects as a civil contract. So the death and seizin of lands by the husband during coverture are also necessary to establish a right to this estate. But they are not embraced by, nor are they the subjects of the marriage contract. The estate is by law made an incident of the marriage relation, and the death and seisin of one of the parties are conditions on which it comes into existence.

It stands like an estate by the curtesy, on the foundation of positive law. (Cruise by Greenleaf, Vol. 1, p. 166, §6.) So the right of the husband to the property of the wife in her possession by the common law, and her consequent incapacity to hold personal property in her own right, are incidents of the same relation, which the legislature may modify or' abolish at pleasure. Gifts made to the wife after the passage of a law to that effect, would vest in her it is presumed, without impairing in any respect the marriage contract.

It is because dower is an incident of the marriage relation established by positive institutions of the country, and not by contract, that the widow is entitled to dower, although, the marriage is consummated abroad, where the common law does not obtain. (2 H. Bl. 145; 2 Hogg, 376, n.) For the same reason, although the husband can not deprive the wife of dower by alienating the land during coverture, yet he may forfeit it, as for treason, and she will be concluded. In the- case under consideration the land was taken against the consent of the husband, by

an act of sovereignty, for the public benefit. The only person owning and representing the fee, was compensated by being paid its full value. The wife had no interest in the land, and the possibility which she did possess was incapable of being .estimated with any degree of accuracy. Under these circumstances the legislature had the power which I think they have rightfully exercised, to direct that the value of the entire fee should be paid to the husband of the appellant; and that the corporation by such payment, in pursuance of the statute, has acquired an indefeasible title to the premises.

The judgment of the superior court should be affirmed. Mason, J., read an opinion in which he arrived at the same conclusion with Judge Gardiner. All the judges concurring, Judgment affirmed.