Maxon v. Gray

• Decision Date: 14 February 1885
• Citation: 14 R.I. 641
• Parties: JONATHAN MAXON et al. v. NANCY C. GRAY et als.
• Court: Rhode Island Supreme Court

14 R.I. 641

JONATHAN MAXON et al. v. NANCY C. GRAY et als.

Supreme Court of Rhode Island.

February 14, 1885

A widow's right of dower is before assignment of dower a mere chose in action .

Courts of equity have, in the absence of statutory provisions, no power to subject a widow's right of dower before assignment to the payment of her judgment debts.

The mere neglect or refusal of the widow to have assignment of dower made is not such a fraud upon her creditors as to give jurisdiction to a court of equity.

BILL IN EQUITY to satisfy a judgment debt out of a right of dower.On demurrer to the bill.

Thomas H. Peabody, for complainants.

Crafts & Tillinghast, for respondents.

MATTESON J.

This is a bill by judgment creditors to subject a right of dower to the payment of their judgment debt.It sets forth that the respondentNancy C. Gray was the wife of Jirah I. Gray, late of Hopkinton, deceased; that said Jirah died intestate, on or about the 21st day of June, 1879, and that said Nancy as his widow is entitled to dower in certain lands, particularly described in the bill, with the improvements thereon situated in Hopkinton, of which he died seized in fee; that he left surviving him his widow said Nancy, and five children, who are still living and are his heirs at law, and that said real estate is now owned by said heirs subject to the dower therein of said Nancy.The bill also recites the obtaining of a judgment of the Justice Court of Westerly against the respondent Nancy by the complainants; the taking out of execution thereon, its levy upon, and the sale in pursuance thereof, at public auction, to the complainants, of all her right, title, and interest in and to said real estate, being her dower right therein; the appropriation of the sum paid towards the expenses of the levy and sale; the return of the execution for want of other goods, chattels and real estate of the said Nancy to be found by the officer within his precinct, unsatisfied for the balance of such expenses and the amount of said execution; the recording of the execution and of the officer's doings thereon in the land records of Hopkinton, and the making and delivery to the complainants by the officer, prior to the return of the execution, of a deed of all the right title, and interest of said Nancy in said real estate, being her said dower right therein, and the recording of such deed in said land records.

The bill further alleges that the said Nancy has been since the death of her husband, and still is, in the possession and occupation of all of said real estate, and in the receipt of the rents and profits thereof, by agreement with and consent of the children and heirs of her deceased husband, without taking any steps to have her dower therein set off or assigned to her, and that she has neglected and refused, and still neglects and refuses, to pay said judgment, or any part thereof, or to apply any part of said rents and profits towards the satisfaction of said judgment, which remains in full force and has not been annulled, reversed, or satisfied; that said heirs have at all times since the death of said Jirah neglected and refused, and still do neglect and refuse, to assign and set off to said Nancy her said dower right in said real estate.

The bill prays for an answer, the oaths thereto being waived, that the dower right of said Nancy in said lands may be subjected to the payment of said judgment, expenses, and the costs of this suit, and for general relief.

The respondents have demurred to the bill on various grounds, not necessary to be stated.

A widow's right of dower in the real estate of her deceased husband, before assignment, is not an estate, but a mere chose or right in action.Weaver v. Sturtevant, 12 R.I. 537, 539, 540.Being a chose in action, it is not subject to levy and sale on execution.Freeman on Executions, § 185.Nason v. Allen, 5 Me. 479, 481, 482;Gooch v. Atkins, 14 Mass. 378, 381;Walker v. Mardus, 29 Mo. 25, 27;Shields' Heirs v. Batts, 5 J. J. Mar. 12, 15;Petty v. Malier, 15 B. Mon. 591, 604.The proceedings set forth in the bill did not, therefore, confer any title to the right of dower of the respondent Nancy upon the complainants, or create any lien thereon in their favor, which can afford a basis for relief in equity.

The only cases in which a right of dower before assignment has been subjected in equity to the payment of debts, cited by the complainants, or...