[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 409 It is quite evident that if the final judgment appealed from directing a distribution to the heirs at law of the rents from the real estate sought to be partitioned stands, the widow will not be able hereafter to obtain any portion of the rents which accrued from those premises after her husband's death. In the face of that judgment she could not thereafter maintain an action for arrearages of dower if otherwise she might.
It is the duty of an heir to assign dower to the widow as soon as may be after quarantine without any demand being made therefor. Section 1600 of the Code of Civil Procedure provides that in an action for dower the widow may recover in the same action damages for withholding her dower to the amount of one-third of the annual value of the mesne profits of the property, with interest, to be computed from her husband's death, and that in such action no previous demand of dower need be made of the heir.
In this action the husband died in July, 1910. The *Page 411 interlocutory judgment was rendered in July, 1914, and final judgment in April, 1915.
It needs no argument to show that if this were an action under the Code by the widow for the admeasurement of her dower she could recover in the same action part of the rents as damages for withholding her dower.
What good reason is there why she should not recover such damages in this action of partition? One reason advanced is that the widow in the answer which she served did not claim damages for withholding her dower. That is true, but before the making of the referee's report she did execute and file, as provided by section 1599 of the Code of Civil Procedure, a consent to accept a gross sum in satisfaction of dower, "the amount of which shall be ascertained pursuant to law." In Kyle v. Kyle (67 N.Y. 400,405) it is said: "dower is the principal thing, and the rents and profits merely accessory and consequential."
The referee assumed to pass upon the question as to who was entitled to these rents, and he decided that the widow was not entitled to share in the rents, but that the whole amount thereof belonged to the heirs. Upon the facts shown, if the widow had served no answer at all, would not the referee, with the widow's consent before him to accept a gross sum, to be "ascertained pursuant to law," have been compelled to award her a share of the rents? Might not the widow assume that the gross amount which she had consented thus to accept would include a share in the rents as incidental to her dower? I think so.
It is suggested that section 1569 of the Code of Civil Procedure provides that where in partition a widow consents to accept a gross sum in satisfaction of her dower, she is entitled to receive from the proceeds of the sale a gross sum to be fixed according to the principles of law applicable to annuities, and nowhere is there any *Page 412 provision made for sharing in the rents which accrued after her husband's death. But it will be observed that in section 1664, which applies in actions for dower, the same provision exists as to the method of calculating a gross sum in those actions, and no difficulty is experienced in such cases in providing for the recovery by the widow for damages for withholding her dower under section 1600. Section 1625 of the Code seems to contemplate that actions for partition and actions for dower shall be conducted on the same principle, and that the procedure shall be the same so far as possible.
In a somewhat similar case the Supreme Court of Georgia held that when a widow elects to take a gross sum in satisfaction of her dower, she is entitled by virtue of her dower right to an interest in one-third of the rents and profits after her husband's death, and she should be allowed that sum in addition to her share of the proceeds of the sale, based upon her expectancy of life. (Johnson v. Gordon, 102 Ga. 350.) That is the only decision I have found which gives much aid in the consideration of this case, but upon principle, I think the determination of the Appellate Division should be modified. There is enough before us in this action of partition to do complete justice between the parties, and there is nothing in the pleadings which prevents us from so doing.
I recommend that the judgment appealed from be modified so as to provide that the appellant shall receive one-third of the rents deposited with the city chamberlain to the credit of this action, with costs in this court and in the Appellate Division.
HISCOCK, Ch. J., COLLIN, CARDOZO, POUND, CRANE and ANDREWS, JJ., concur.
Judgment accordingly. *Page 413