#### The Citizens’ Savings Bank, Plaintiff, *v.*James Mooney et al., Defendants.

(Supreme Court, New York Special Term,

January, 1899.)

Dower — A gross sum cannot be awarded from surplus moneys for an inchoate right of dower.

A woman, who has an inchoate right of dower in surplus moneys in foreclosure, can only demand that one-third thereof be invested during the joint lives of herself and of her husband, and also during her own life, should she survive him and become entitled to the income, and ■‘here is no provision of law by which she can be presently awarded a gross sum for such a right.

Objection to the confirmation of a referee’s report in foreclosure.

Straley, Hasbrouck and Schloeder, for defendant James Mooney.

Henry Schmitt, for defendant Catherine Mooney.

Russell, J.

The only objection now argued to the confirmation of the referee’s report is based upon the differing claims of the defendant James Mooney and his wife Catherine Mooney. A large surplus, $11,150.08, arose upon the sale in foreclosure in this action, and the whole of this surplus, save slight deductions, goes to the defendant J ames Mooney after providing for the dower right of his wife. The claim she presents by her counsel is that she should *68either receive the gross sum representing the value of an inchoate right of dower, based upon the tables providing for the ascertainment of the value of a life estate dependent upon survivorship, or that the income of one third should be devoted to her use, the principal sum to be securely invested for that purpose.

An inchoate right of dower is .an estate of substance, although conditional in its character, and one which may never be reduced to possession. As such estate, it must be provided for, in disposing of the funds realized from the sale of the property to which it attaches and gives to the possessor even a right of redemption to the extent of one-third of the estate lying under superior mortgages. But there is no right whatever to possession until the event comes which turns the inchoate right into one consummate, and, therefore, there is no equitable rule by which the use of the funds realized from the estate subject to dower can be given to the possible doweress. She has not even the right to possession by redemption as against the mortgagee. Bell v. Mayor, 10 Paige, 49.

She can only claim that one-third of the surplus moneys be invested for her benefit, to so remain during the joint lives of herself and husband and her own life in case of her survival. Denton v. Nanny, 8 Barb. 618.

There is no provision of law which applies in foreclosure cases for the ascertainment of the value of an inchoate right of dower in gross, and, therefore, such a course cannot be followed. The fact that for many years the husband and wife have lived apart under a judgment of separation confers no greater power upon the court in dealing with the surplus moneys arising upon a foreclosure sale than would .otherwise exist, whatever consideration might be given to such a circumstance were the application resting in discretion.

The report of the referee must be confirmed, and, after paying for the costs and expenses to be„ provided for in the order, one-third of the balance should be invested at interest by the chamberlain during the joint lives of the defendants James Mooney and Catherine Mooney and the life of Catherine Mooney should she survive the said James Mooney, the income to be paid until his death to the said James Mooney, -and thereafter to Catherine if she survive. After payment of the $309.60 claimed by the city of New York, out of the remaining two-thirds, the balance should be paid to the defendant James Mooney.

Ordered accordingly.