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estate to her; and asserts absolute ownership in fee of the premises in question, and of the whole thereof. We do not think that Mrs. Duffy was concluded by this claim of superior right. By making it she did not reject the provision of the will as between such provision and the dower right. The question whether she would accept such provision rather than dower was not involved in the assertion of another and a different right which was greater than either, and the assertion of the greater right was not inconsistent with the acceptance of the lesser. Her claim of absolute ownership involved an inaccurate construction of her husband's will, not repudiation of what was really provided. If the situation had been reversed, her baseless assertion of absolute ownership would not have relieved her from the running of the statutory year, nor would an election thereafter to take dower have beeu permitted. The election to accept the testamentary provision follows the running of the statutory year, unless in the interim there is, as was said in Chamberlain v. Chamberlain, 43 N. Y. 424, "an unequivocal assertion of a claim to dower, and a renunciation of the provisions made by the will.” Here there was neither assertion of the one right nor renunciation of the other. There was simply what amounted to an unfounded claim, based upon an inaccurate opinion, that the will gave her more than it really did give her; and, as a sequence, that she not only accepted, but actually insisted upon, all that it gave her,--the remaining one-half as well as the one-half clearly devised; that is, the whole.

It is contended, however, that the order of distribution was right, because it followed the interlocutory decree which was made on the 19th of December, 1887. By this latter decree Mrs. Duffy was required to indicate her refusal of the provisions of the will, and her election to accept dower by an instrument in writing to be filed, and a certified copy thereof to be delivered to the referee, within 30 days after the sale. In case she failed to do this, the decree provides that she shall be deemed to have accepted the provisions of the will. These words then immediately follow this latter expression:

“To be fixed by the said referee according to the principles of law applicable to annuities, and to be paid over to her in a gross sum; or, at her election, one-third of the proceeds of said sale to be paid into court, according to law and the rules and practice of the court, for the purpose of being invested for her benefit, according to law."

This is somewhat confusing, but the meaning can be gathered from the context. It is quite evident that the words which we have quoted were intended to apply to an election to receive dower, and not to the acceptance of the provisions of the will. Plainly they could not have applied to an acceptance of the provisions of the will. The decree should be read as though all that preceded these words, with regard to the manner of refusal and election, had been embraced in parentheses. It would then read clearly enough, and, doubtless, as was intended, to wit:

"The dower of the said defendant Catherine Duffy, wife of Philip Duffy, deceased, in case she refuses to accept the provisions of said will of said

Philip Duffy, and elects to receive said dower,

to be fixed by the said referee according to the principles of law applicable to annuities,” etc.

Mrs. Duffy died long before the sale, and she never filed a refusal to accept the provisions of the will, or an election to receive dower. It will be observed that she was not required to file an election to accept the provisions of the will. Acceptance was deemed to follow her failure to file "such refusal or election,” that is, such refusal of the provisions of the will or such election to receive dower. Whether this part of the interlocutory decree was authorized we need not consider. It attempted to give the widow more than the statutory year to determine whether she would prefer dower to the provisions of the will. But even if the decree was right in this respect, it did not justify the recital in the order appealed from of May 31, 1892, upon which recital Mrs. Duffy's representative had been deprived of any share in the proceeds of the sale. This recital is as follows:

“And it appearing to the satisfaction of the court, by the affidavits of William Irwin and Sidney H. Stuart, that the defendant Catherine Duffy died on the 19th day of November, 1890, without having accepted the provisions of the will of Philip Duffy, deceased, in lieu of her dower in his estate, and without having elected to receive the same in lieu thereof."

This, as we have seen, does not follow the interlocutory decree, nor is it warranted by the facts. Mrs. Duffy had accepted the provisions of the will by failing to "commence proceedings for the recovery or assignment” of her dower within one year after the death of her husband, and she thereby had elected to receive such provisions, whatever they were, and however they might be con strued, in lieu of dower. What has been called the order of May 31, 1892, was in reality the fival judgment in the action entered pursuant to section 1577 of the Code of Civil Procedure. It was founded upon the report of sale, and upon the pleadings, interlocutory judgment, and all the proceedings in the action; but it was not founded upon the affidavits of William Irwin and Sidney H. Stuart, which are recited therein. The notice of the application makes no mention of these or of any affidavits, nor are tiey to be found in the record. These gentlemen made affidavits to oppose the subsequent motion for a resettlement of this judgment, but none, apparently, to support the recital under which the court adjudicated against Mrs. Duffy's representative. All that could be finally adjudged following the interlocutory decree alone was that Mrs. Duffy died without having refused the provisions of the will or elected to receive dower. Even as to that the interlocutory decree ceased to be operative upon her death, for she had 30 days after the sale thereunder to file her refusal. It is apparent that upon her death further directions became imperative, and that her representative was entitled to a hearing in the usual way upon proper proofs. We think, however, that all the facts essential to a final disposition of the question in dispute were before the court upon the motion for a resettlement of the order or judgment of distribution, and that the right of Mrs. Duffy's representative to one-half of the net proceeds of the sale then sufficiently appeared.

The order of June 22, 1892, should therefore be reversed, and the motion granted, and accordingly the order or judgment of May 31, 1892, should be modified by striking out the recital above referred to, and instead thereof adjudging that Catherine Duffy did elect to accept, prior to her death, the undivided one-half interest in the property first described in the complaint and in said judgment of partition in lieu of her dower, and that her estate and next of kin are entitled to receive the same, and that the referee named in the judgment of partition be directed to pay over to the administrator of the estate of the said Catherine Duffy, deceased, one-half of the net proceeds arising from the sale of said premises, with $10 costs of this appeal, and disbursements, payable out of the general proceeds of the sale; and the appeal from the order of March 23, 1893, should be dismissed, without costs. All concur.

(70 Hun, 178.)
FORI) et al. v. LIVINGSTON et al.

(Supreme Court, General Term, First Department. June 30, 1893.) LUNATICS--DAMAGES-REAL ESTATE.

Damages recovered for injury to the fee of a lunatic's real estate are to be treated as real estate where he dies without recovering his competency.

Appeal from special term, New York county.

Action by James K. Ford and another, administrators of Benjamin Page, deceased, against Charles O. Livingston and others. Judgment for defendants. Plaintiffs appeal. Affirmed.

Argued before VAN BRUNT, P. J., and FOLLETT, J.
D. Solis Ritterband, (Henry A. Forster, of counsel,) for appellants.

Francis T. Garrettson, J. Fred. Kernochan, Schenck & Punnett, and Wyatt & Trimble, (William E. Wyatt, of counsel,) for respond. ents.

VAN BRUNT, P. J. In 1851 one Benjamin Page became seised in fee of the premises 38 and 40 West Broadway by devise from his grandfather, John R. Livingston. In 1876, Page, still seised of these premises, was declared to be a lunatic, and Stephen H. Olin was duly appointed committee of his personal estate. Page continued a lunatic all his life, and said Olin was his committee at the time of his death. In 1877 the Metropolitan Elevated Railway Company commenced the erection of the Sixth Avenue Elevated Railroad in front of 38 and 40 West Broadway, and shortly after the railroad and its equipments were leased by the Manhattan Ele vated Railway Company, which has operated it ever since, and thereby greatly impaired the value of 38 and 40 West Broadway. In October, 1888, Olin, as such committee, began an action in the superior court to restrain the railroad company from operating its railroad in front of said premises, and for past rental damages; and on the 13th of December, 1890, a judgment was entered enjoining

the maintenance and operation of said railroad, unless the railroad company paid to said Olin as committee $4,000, with interest from the date of the judgment, as fee damages, as they have been termed, and requiring him in that event to execute to the said companies conveyances or releases of the easements taken by them. In January, 1892, the elevated railroad companies proposed to compromise by paying $4,000, but without interest, as the judgment required, and on the 25th of January, 1892, Olin presented a petition to the court of common pleas asking leave to execute releases and conveyances to the companies of the easements taken by them upon receiving the sum of $4,000, although the judgment of the superior court required the payment of $4,000 with interest. Upon the same day the court made an order granting leave to Olin, as committee, to execute such releases and conveyances upon receipt from the elevated companies of $4,000. Olin, as such committee, executed and delivered to the railroad companies a release of all claims and causes of action arising out of the operation and maintenance of the railroad, and a conveyance of all the interests and easements which he as committee had in and to West Broadway in front of the premises in question, taken by the railroad as then constructed and operated, and on the same day the companies paid to him as committee $4,000 for fee damages and $2,000 for rental damages, and certain costs. On the 20th of February, 1892, Page died intestate, and in April, 1892, the plaintiffs were appointed ad. ministrators. Olin, as committee, turned over to the plaintiffs the moneys in his hands belonging to Page at the time of his death, except the sum of $4,000 paid to him for fee damage, and $1,000 rental damage. The plaintiffs having brought an action against Olin to recover the $5,000 so retained by him, an order of interpleader was made which directed the present defendants, the heirs at law of Page, to be substituted as defendants in place of Olin. Upon the trial of the action of interpleader, these facts appearing, the court adjudged the $4,000 fee damage to be real estate, and it was awarded to the defendants after deducting a proportionate amount of the costs allowed to Olin upon the granting of the interpleader; and the $1,000 rental damage, after similar deductions, was awarded to the plaintiffs as assets of the estate. From the judgment thereupon entered this appeal is taken.

The sole question presented is whether this $4,000, which was the price paid by the railroad company for the easements taken by them from the lunatic, was real estate or assets of the deceased lunatic belonging to his administrators. After a careful examination of the elaborate brief upon the part of the appellants, we do not see, in view of the practice of the courts under similar circumstances, and which has been long established prior to the time of any statute upon the subject, that there can be any doubt bui that the proceeds of the real estate of a lunatic, disposed of no matter how, (unless perhaps pursuant to some authority coupled with an interest given by the lunatic while sane,) remain real estate so long as his incompetency exists. It is not necessary to

discuss the proposition that the right to bring actions for fee damage is vested in heirs, and not in personal representatives, and therefore that which is taken by such an action is to be considered as real estate, and the amount paid therefor to be deemed as real estate. Now, it was well settled long prior to any provisions of our statutes that the proceeds of real estate sold by the court be. longing to lunatics and infants should be considered real estate so long as the incompetency continued. The theory upon which this rule is based is an eminently just one, viz. that the character of one's property should not be changed without his consent; and a lunatic, in consequence of his mental condition, and an infant in consequence of his incapacity from want of age, not being able either to consent or object to a change, it was held that the proceeds of the sales of such estates should retain their character until the owner had become entitled to the absolute possession of the same. This principle is recognized in the case of Horton v. McCoy, 47 N. Y. 21, and has also become ingrafted upon our statutes in almost all proceedings for the sale of real estate of incompetent persons. But this regulation of the statutes was not the adoption of a new policy in respect to these matters, but was simply placing upon the statute book that which the court long previous thereto had recognized.

The counsel for the appellants claim certain irregularities in the proceedings in pursuance of which the committee assumed to execute the conveyance to the elevated railroad company. We do not see that that has anything to do with the question before us. If the railroad companies were content to take it, that was a question for them to decide, and the personal representatives of the lunatic have no interest therein. It is not at all necessary, therefore, to consider the points which have thus been raised. The money was paid for the easements. If they were not conveyed, the title still remains in the heirs of the lunatic. But we imagine that after they have received the proceeds of the sale such a claim would not avail them much, even if it had any foundation,

The judgment should be affirmed, with costs.

(70 Ilun, 288.)
BEEKMAN et al. V. VAN DOLSEN.

(Supreme Court, General Term, First Department. June 30, 1893.)

1. INDEMNITY-CONSTRUCTION.

A guaranty of indemnity with a recital that, whereas the guarantors as trustees of an estate and as individuals did make a certain instrument, and that therefore "we hold ourselves responsible," etc., binds the guar

antors both as trustees and individually. 2. SAME.

Under an agreement to hold the guarantors liable for "any costs and da mages which may be incurred" by D. the guarantors are liable for any damages for which D. is responsible, and it is not necessary that they should have been paid by D.

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