Tifft v. . Porter , 8 N.Y. 516 ( 1853 )

If the testator had sold and delivered two hundred and forty shares of bank stock in his life time, there can be no doubt that the purchaser would have been entitled to the dividends which might at any time thereafter, be declared. And it would have made no difference that the dividend had accrued upon the transfer. Like the interest upon a bond or note, it would have passed to the assignee with the transfer of the subject out of which it arose. It is on this principle that rent passes with the of her husband to be assigned for dower, or commence proceedings for the recovery thereof. (1 R.S. 741-2, § 13, 14.) grant or assignment of the reversion. (4 Kent Com. 355-6; Co. Litt. 143, a; id. 151, b.) It is an incident, though not an inseparable incident of the reversion. And the incident follows its principal, unless it be separated by express exception. (Id.) In like manner a party having accepted the principal, can not afterwards maintain an action for the interest. (Tillotson v. Preston, 3 J.R. 229.)

The legacy in this case was given in lieu of dower. The legatee is, therefore, to be treated as a purchaser, and entitled to all the incidents resulting from that relation. This is the well settled doctrine, and applies to every case where there is any valuable consideration for the testamentary gift. Thus inBurridge v. Bradyl, (1 P. Williams, 127,) a general legacy was given to the wife in consideration that she release her dowry, and it was held by Ld. Ch. Cowper, that she was to be treated as a purchaser, and her legacy to be taken as a specific devise, and to be preferred before a pecuniary legacy. Although Ld. Ch. Parker, in Hinton v. Pinke, (1 P. Williams, 539,) questioned the part of the above decision which converted a general into a specific legacy, yet in other respects it was not disturbed; and it was treated by Lord Hardwick in Blower v.Morret, (2 Ves. 420,) as correctly decided, and mainly upon the principle that the widow was a purchaser. The fact that the wife, in Burridge v. Bradyl, supra, was required to release her dower, was treated by Sir Thomas Clark, master of the rolls, in Davenhill v. Fletcher, (Ambler, 244,) as of no importance, because if the legacy be given in full of dower, or in lieu of dower, the acceptance of it is an effectual bar of dower, and a release if need be, will be required to be given. The Revised Statutes have provided for this case, and have enacted that when a widow is entitled to an election, she shall be deemed to have elected to take the devise or pecuniary provision in lieu of dower, unless within one year after the death of her husband she shall enter on the lands. Any other unequivocal act of election is no doubt sufficient, and in the present case, the receiving of the stock assigned to her, and the commencement of this action, determine her election.

This doctrine is more fully established in the recent case ofHeath v. Dindy, (1 Russell's Ch. Cases, 543,) where a legacy in lieu of dower was held not to abate on deficiency of assets, and the legatee was treated as a purchaser. Chancellor Walworth, in Williamson v. Williamson, (6 Paige, 305,) follows the same rule, and recognizes the doctrine of Heath v.Dindy and Davenhill v. Fletcher. And in Wood v.Vandenburgh, (6 Paige, 277,) the chancellor held that when legacies are founded upon a person's indebtedness, or other valuable consideration, or are charged with the payment of other legacies, the legatees take as purchasers, and the legacies do not abate except as between the legatees.

The testator in the residuary clause of the will, "gives, devises and bequeaths" to his brothers by name, "the residue of his estate, real and personal, to be divided equally among them, share and share alike." This raises the presumption, that he had real estate out of which his widow could have been endowed, had he not made a pecuniary provision in lieu of dower. The legacy to her relieves this real estate from the incumbrance of dower. The residuary devisees are benefited to that extent by the legacy to her. That legacy is the consideration for the removal of that incumbrance. She is therefore to be treated as a purchaser, and as such she was entitled to the two hundred and fifty shares of bank stock on the death of the testator, and of the dividends thereafter to be declared. I think the judgment of the supreme court should be affirmed.

Judgment reversed.

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