The defendant’s demands that the Grand Jury be instructed regarding mitigating factors relevant to first degree murder charges, including "a full recital of all statutory <mask> as defined in [CPL] 400.27 (8)” are also denied. Under the statutory framework applicable to murder in the first degree, mitigation applies to the penalty phase, and is irrelevant to a determination whether the People have presented sufficient evidence to establish a prima facie case that the defendant has committed the crime. (See, People v Franco, 86 NY2d 493 [1995]; People v Heard, Sup Ct, NY County, May 6, 1996, Rothwax, J.)


Consistent with these decisions, in People v. Caballero (2012) 55 Cal.4th 262, 145 Cal.Rptr.3d 286, 282 P.3d 291 (Caballero ), our Supreme Court held "sentencing a juvenile offender for a nonhomicide offense to a term of years with a parole eligibility date that falls outside the juvenile offender's natural life expectancy," i.e., the "functional equivalent" of an LWOP sentence, "constitutes cruel and unusual punishment in violation of the Eighth Amendment. Although proper authorities may later determine that youths should remain incarcerated for their natural lives, the state may not deprive them at sentencing of a meaningful opportunity to demonstrate their rehabilitation and fitness to reenter society in the future.... [T]he sentencing court must consider all <mask> attendant in the juvenile's crime and life, including but not limited to his or her chronological age at the time of the crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and his or her physical and mental development, so that it can impose a time when the juvenile offender will be able to seek parole from the parole board. The Board of Parole Hearings will then determine whether the juvenile offender must be released from prison 'based on demonstrated maturity and rehabilitation.' " (Id . at pp. 268-269, 145 Cal.Rptr.3d 286, 282 P.3d 291, quoting Graham, supra, 560 U.S. at p. 75, 130 S.Ct. 2011.)


As we explained in our original opinion, despite the fact SB 260 provides what may be considered a "safety net," providing a juvenile offender the opportunity for a parole hearing during his or her lifetime, the new legislation does not substitute for the sentencing court's consideration of all individual characteristics of the offender. In Miller, supra, 567 U.S. ----, 132 S.Ct. 2455, 183 L.Ed.2d 407 the United States Supreme Court held imposition of an LWOP sentence for a homicide committed as a juvenile constitutes a task "demanding individualized sentencing" and requiring "that a sentencer have the ability to consider the 'mitigating qualities of youth. ' " (Miller, supra, 132 S.Ct. at p. 2467, quoting Johnson v. Texas (1993) 509 U.S. 350, 367, 113 S.Ct. 2658, 125 L.Ed.2d 290, italics added.) Caballero, which extended Graham 's prohibition of an LWOP sentence for juveniles convicted of nonhomicide offenses to sentences that are the functional equivalent of LWOP, also emphasized: "[T]he sentencing court must consider all <mask> attendant in the juvenile's crime and life, including but not limited to his or her chronological age at the time of the crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and his or her physical and mental development, so that it can impose a time when the juvenile offender will be able to seek parole from the [Board ]." (Caballero, supra, 55 Cal.4th at pp. 268-269, 145 Cal.Rptr.3d 286, 282 P.3d 291, italics added.) As we have already explained, while Graham 's categorical ban on an LWOP sentence or its functional equivalent does not apply in this homicide case, under *839Miller, supra, 132 S.Ct. 2455, the sentencing court was still required to consider all mitigating circumstances of *848youth before imposing a sentence the functional equivalent of LWOP. Thus, the penalty selection that comports with Miller must be undertaken in the first instance by the sentencing court. Regardless of whether the new statutory scheme enacted by SB 260 may eventually convert an LWOP sentence to one with possibility of parole, the sentencing court must consider the factors of youth and maturity when selecting the initial punishment .


A different question might arise if the testimony of psychiatrists, or other testimony bearing upon the defendant’s mental condition and background, were offered as <mask>, where that very issue had not been litigated at the trial proper, but under the circumstances of this case I do not see that evidence with respect to the defendant’s alleged mental condition should be received at the second stage of the trial.


Contrary to defendant’s contention, a keen distinction can be drawn between the unlimited discretion available to the jury in Witherspoon and that instilled in a New York sentencing jury. That distinction rests on the context within which the discretion is exercised. The Witherspoon jury was vested with complete unfettered discretion in reaching a sentence. Only those jurors “who would never vote for a death sentence or who would not impartially judge guilt” were properly excluded. (Witt, at 421-422.) Under the New York statute the jury’s discretion is much more circumscribed. Only after the jury has found defendant guilty of a crime enumerated in Penal Law § 125.27 and has reviewed the <mask> (CPL 400.27 [9]), and unanimously found that the aggravating circumstances substantially outweigh any mitigating circumstances (CPL 400.27 [11] [a]), are the jurors given what defendant characterizes as “unbridled discretion” to exercise their “mercy function” in determining whether a sentence of death should be imposed (CPL 400.27 [11] [a]).


From the above stated colloquy, it is apparent that Rodriguez asserted to the district court that she had reviewed the PSR with defense counsel, she understood that the court would consider the PSR in determining her sentence, and she did not request additional time to review the PSR. Thus, the record affirmatively refutes this claim of ineffective assistance of counsel and, where the record refutes a claim of ineffective assistance of counsel, no recovery may be had. See State v. Liner, 24 Neb. App. 311, 886 N.W.2d 311 (2016). This argument fails. (b) <mask> Rodriguez next alleges that trial counsel was ineffective for failing to properly investigate the circumstances of the case and failing to disclose mitigating issues for the prosecution to consider. Specifically, Rodriquez contends that, although trial counsel was aware of facts surrounding the victim’s prior contact with her, trial counsel


*519"§ 210.43. Motion to remove juvenile offender to family court. "1. After a motion by a juvenile offender, pursuant to subdivision five of section 180.75 of this chapter, or after arraignment of a juvenile offender upon an indictment, the superior court may, on motion of any party or on its own motion: "(a) except as otherwise provided by paragraph (b), order removal of the action to the family court pursuant to the provisions of article seven hundred twenty-five of this chapter, if, after consideration of the factors set forth in subdivision two of this section, the court determines that to do so would be in the interests of justice; or "(b) with the consent of the district attorney, order removal of an action involving an indictment charging a juvenile offender with murder in the second degree as defined in section 125.25 of the penal law; rape in the first degree, as defined in subdivision one of section 130.35 of the penal law; sodomy in the first degree, as defined in subdivision one of section 130.50 of the penal law; or an armed felony as defined in paragraph (a) of subdivision forty-one of section 1.20, to the family court pursuant to the provisions of article seven hundred twenty five of this chapter if the court finds one or more of the following factors: (i) <mask> that bear directly upon the manner in which the crime was committed; (ii) where the defendant was not the sole participant in the crime, the defendant’s participation was relatively minor although not so minor as to constitute a defense to the prosecution; or (iii) possible deficiencies in the proof of the crime, and, after consideration of the factors set forth in subdivision two of this section, the court determined that removal of the action to the family court would be in the interests of justice.” (CPL 210.43.) The question, therefore, is whether there is an encroachment on the separation of powers, under a statutory grant enabling the prosecutor to position himself as a barrier to removal, in one of the expressly enumerated crimes.


In this case, defendant was convicted of robbery in the first degree, which is an “armed felony” for purposes of the youthful offender statute (CPL 720.10 [2] [a]; see CPL 1.20 [41]; Penal Law §§ 70.02, 160.15 [4]). Defendant therefore is “eligible to be adjudicated a youthful offender only if the court determined that there were ‘<mask> that bear directly upon the manner in which the crime[s were] committed; or . . . [, inasmuch as] defendant was not the sole participant in the crime[s], [that] defendant’s participation was relatively minor’ ” (People v Lugo, 87 AD3d 1403, 1405 [2011], lv denied 18 NY3d 860 [2011], quoting CPL 720.10 [3]). Here, defendant offered no evidence of mitigating circumstances relating to the manner in which the robberies were committed, nor did he specify any facts indicating that his participation in those crimes was “relatively minor” (CPL 720.10 [3]). Defendant did not dispute the circumstances of the crimes as alleged and, given that defendant’s DNA was found on the duct tape used to restrain at least nine victims and the handcuffs used to restrain another *1447victim, there was no basis for the court itself to conclude that defendant was a minor participant in the crimes. Because defendant was not eligible for youthful offender treatment, the court did not err in failing to make a youthful offender determination (see People v Frontuto, 114 AD3d 1271, 1271-1272 [2014]; see also People v Watts, 91 AD3d 678, 679 [2012], lv denied 18 NY3d 963 [2012]; Lugo, 87 AD3d at 1405; cf. Rudolph, 21 NY3d at 499).


Having reconsidered our decision in light of Contreras , we again affirm the convictions, order modifications, and direct the trial court on remand to hold a hearing on ability to pay. In addition, we remand the matter for resentencing of Mr. Moreland. The trial court is directed to consider, in light of Contreras , any <mask> of Mr. Moreland's crimes and life and the impact of any new legislation and regulations on appropriate sentencing. ( Contreras , supra , 4 Cal.5th at p. 383.) The court is further directed to impose a time by which Mr. Moreland may seek parole, consistent with Contreras . 1 (Ibid .) We express no view on whether the sentence to be imposed on resentencing must differ materially from the *175current sentence Mr. Moreland is serving. Rather, we leave the impact of Contreras to the trial court in the first instance.


When reviewing cumulative error in a capital penalty-phase proceeding, our focus is on the errors' cumulative effect on "'the jury's ultimate conclusion regarding the weight of the aggravating and <mask>.'" Cheever II, 306 Kan. at 799 (quoting Kleypas I, 272 Kan. at 1087). In other words, we are looking for the errors' effect in their aggregate, recognizing errors can differ in their individual or cumulative effect. See, e.g., Gleason II, 305 Kan. at 816 (while identifying two instructional errors, the court did not "perceive they had the effect of intensifying one another"); Kleypas II, 305 Kan. at 346- 47 ("As to errors in the penalty phase, we have found several but concluded none individually require us to vacate the penalty verdict. . . . Turning to the cumulative effect of these errors, none of these incidents were related, so none had the effect of intensifying another."). "This 'task is undoubtedly more subtle than simply counting up the number of errors discovered.'" R. Carr, 300 Kan. at 251.


The challenged instruction was patterned after this court's then-controlling interpretation of K.S.A. 21-4624(e). See Kleypas I, 272 Kan. 894, Syl. ¶¶ 45-58 (holding equipoise weighing equation favoring State unconstitutional, reformulating language to require aggravating circumstances outweigh mitigating circumstances), overruled by Marsh, 278 Kan. at 544-45. Thus, the instruction properly and fairly stated the law governing <mask> in Kansas. Cf. State v. Woods, 222 Kan. 179, 183, 563 P.2d 1061 (1977) (generally, "an instruction patterned after the statute is valid").


In the case under consideration, the bill of complaint alleges “ that George Feitner, together with Elsie, his wife, did duly execute under their hands and seals a certain indenture of mortgage, conveying the tenements, hereditaments, etc., etc., and also all the estate, right, title, interest, dower, property whatsoever of them, the said George and Elsie.” It further alleges that the mortgage was acknowledged in due form of law by said George and Elsie, and was recorded. It prays that all the defendants be foreclosed of and from all equity of redemption, and claim of, in, and to the mortgaged premises. These allegations were, in my judgment, sufficient to call upon the defendant Elsie to *475defend her <mask> right of dower. The validity of the mortgage as made by her is asserted, and because it is valid as against her, the prayer is that she be barred and foreclosed. There can be no doubt that the validity of her act in joining in the mortgage is something that could, would, and should, have been tried under. the complaint in that suit, if Mrs. Feitner had chosen to plead infancy, as she might have done.


The equitable issue presented where statutory commissions increased was that the Legislature had obviously concluded that just as all other aspects of our inflationary society required increases in compensation, fiduciary duties justified enlarging the compensation above that which previously existed. The legal rationale upon which this equitable result was reached seems to rest on the concept that commissions are <mask> and accordingly are not payable until allowed by the court, coupled with the concept that remedies will be applied in accordance with the law which prevails at the time when relief is sought, rather than at the time when the injury arose.


Whatever an <mask> right of dower may be, it is not included in the kinds of property specified in section 1, chapter 90, Laws 1860. Nor can it come within the provisions of section 7 of that act as amended by chapter 172, Laws 1862. It is a right which a married woman has always had ; and there is nothing in these acts which has changed its character, or has made it any more her sole and separate property than it always was.


In Kane Co. v. Kinney (174 N. Y. 69, 73) it is stated: “ The object and purpose of the Mechanics’ Lien Law was to protect a person who, with the consent of the owner of real property, enhanced its value by furnishing materials or performing labor in its improvement by giving him an interest therein to the extent of the value of such material or labor. The filing of the notice of lien is the statutory method prescribed by which the party entitled thereto perfects his <mask> right to that interest. That is the manner and mode of procedure in which the right is asserted. A certain time is allowed in which the lien may be asserted or lost. During that time there is a preferential statutory right in the nature of an unperfected equitable lien in favor of the laborer, mechanic, materialman or sub-contractor. And when a notice of lien is filed that right is perfected. But until the ninety days allowed by the statute within which the lien may be filed have elapsed the right cannot be defeated by the voluntary act of the party against whom it might be asserted, such as a general assignment for the benefit of creditors. If such were the effect of the assignment no laborer or material-man’s claim would be secure, and the beneficial purpose of the statute could be defeated unless a lien was filed at the time the work was commenced and from day to day thereafter.” (Emphasis mine.)


First. Let this cause be considered as presented upon the obligation of that covenant against incumbrances. In my opinion, the action cannot be maintained for a breach of the covenant. Is an accruing installment of rent an incumbrance ; the obligation for which, already incurred, will ripen into a perfect claim ; and is it within the legal effect of such a cove*199nant ? A covenant against incumbrances is broken by the existence of any debt which is a lien- upon the land; and an usual instance is: when taxes are assessed at the time of, not after, the execution of a deed (Hutchings v. Moody, 30 Vt., 657; Spring v. Tongue, 9 Mass., 28). An incumbrance, strictly speaking, must exist at the date of the deed ; and it is one of those covenants where a breach accrues, except in the instance, perhaps, of <mask> dower, instanter (Jones v. Gardner, 10 Johns., 266: Powell v. Monson, &c., 3 Mas., 355; Shearman v. Ranger, 22 Pick., 447). A tax has no existence until it is laid; it is the act of the law, not of the vendor; its object, its amount, and rate, rest in possibility ; it does not, unlike an inchoate dower, have a legal existence before being assigned and fixed. Rent comes within the proper office of a covenant, when the parties so agree ; for it is the act of the lessee ; it is created by his own action ; its time of payment is set; its conditions known, and the obligation to pay rent is for the whole term. Taxes, when assessed, are a lien by law. Rent, whether in arrear or accruing, is of a different, and it will be seen, peculiar nature.


So much for the authorities bearing upon the question. From them it appears that the wife, notwithstanding the divorce, is entitled to the <mask> dower interest of which she became vested during coverture. The prohibitory clause of the statute preventing remarriage of the other party, still continues the marriage to the extent that the person may be convicted of bigamy in case of remarriage in this State. But as to everything else, the tendency of the authorities is to the effect that the decree of divorce entirely dissolves and terminates the marriage relation, and that this term*158inates also the property rights of one in the estate of the other. That the marriage, with all its incidents, rights and duties, except as preserved by the statute referred to, is severed and terminated. That this is so would appear to be the legislative construction, as appears from recent enactments. It is now provided that a judgment dissolving the marriage does not affect the plaintiff’s inchoate right of dower in the real property of which the defendant is or was theretofore seized. (Code Civil Pro., § 1759.)


It is more proper to say, that this right of subrogation, and not such a covenant, is the true source of claim for indemnity. Chief Justice Shaw seems to have treated it as a subrogation, when he says, 1 ‘ When a paramount title exposes the grantee to the loss of his whole estate by eviction, the sum which he pays to extinguish such incumbrance is the measure of damages ; ” and the instance, which he says this of, is one wherein an <mask> right of dower was already assigned and fixed.


Again, in the case of Haile v. Leillie, (3 Hill, 149), Leillie, an infant, sued Haile for work, &c. On the trial evidence was given tending to show that a settlement had taken place between the parties, but the defendant insisted that no such settlement had taken place, and offered to prove the fact by the admission of the flaAntiff. The testimony was rejected, but *113the judgment was reversed; Chief Justice Nelson declaring “ that the admissions of the plaintiff were evidence against him, though the admissions of an infant may frequently be controlled by the infant’s incompetency to bind himself by contract;”—and again, that “ the only privilege of an infant who has arrived at years of discretion, even in civil cases, is an exemption at common law from liability upon most of his contracts. Independently of this privilege, he stands in court upon the footing of an adult.” This is undoubtedly the correct doctrine. The admissions of an infant are evidence against him for certain purposes, although such admissions do not create any liability. The mere admission of the correctness of the account would establish only that the plaintiff and defendant had transactions together, and that the result of such transactions left a balance due to the plaintiff without increasing the defendant’s liability to pay it. Without a promise to pay after maturity the admission would be wholly immaterial for any purpose. There is no difference in.principle between an admission of the correctness of an account and any admission affecting a material fact, such as the denial of a settlement by the infant between him and his employer, the only object of which would be to show that the balance struck was not agreed upon. I can discover no reason why an admission by an infant of discreet years of the correctness of an account should not be admitted, to show the <mask> debt which became absolute by promise after maturity. The referee’s finding, therefore, on that question, must not be disturbed.


*118A distribution in shares, on the other hand, is a stock split when there has been a watering down of stock without the use of surplus, while a transfer of surplus to the capital account will produce income in whatever form the distribution takes (Matter of Lissberger, supra). Again, a stock dividend has been declared when there has been a capitalization of earnings from profits together with the distribution of added shares which evidence the assets thus transferred to capital (Matter of Lawrie, 119 N. Y. S. 2d 906). Stated otherwise, a distribution without infringement upon the capital of the corporation is a distribution of income and the rule of apportionment gives to the life tenant the earnings thus distributed. Those earnings, accrued after the establishment of the trust, are always an incident of stock ownership although <mask> until there is a distribution by capitalization in whatever form (United States Trust Co. v. Heye, supra). The test is whether, by the particular transaction, the earnings have been permanently retained by the corporation, as distinguished from a division occurring where the capital and surplus accounts remain unaffected (Matter of Davis, supra). The life tenant’s benefit from income capitalization cannot be defeated by the device of destroying potential income by turning surplus into capital (Equitable Trust Co. v. Prentice, 250 N. Y. 1, supra). Nor is the market value of the stock at the time of the transaction relevant (Matter of Osborne, 209 N. Y. 450, supra).


And an action for that purpose may be maintained by' the wife during the lifetime of her husband. (Petty v. Petty, supra; Scribner on Dower, vol. 2, 152.) If it could not be, her right would be in danger of being altogether defeated by a conveyance of the property by the grantees to a purchaser in good faith for value. The right itself arises from the marriage; and, according to Swan v. Canaday (supra), it then becomes sufficiently complete to render it the subject of vindication by action. In that respect it is analogous to the right of a creditor against the property of his debtor. Upon the solemnization and consummation of the marriage, her <mask> right to dower in her husband’s real estate is brought into existence, and the only obstacle in the way of its attachment is the fraudulent conveyance made to avoid it. A present right of action for its removal at once accrues. The wrong has been done, and its vindication is an immediate necessity. Both together would seem to be sufficient to justify the maintainance of an action for the correction of the wrong.


Of course it is true, as the plaintiff insists, that mere inadequacy of consideration is not a defence to a promissory note ; that is asv between parties fully competent to contract with each other. But husband and wife are not fully competent. Originally they could not contract with each other at all at law. Now their additional rights to contract with each other are only such as necessarily arise from the separate ownership of property by the wife. In regard to this <mask> right of dower, we think it remains on the former footing; by which the wife will be protected against loss by reason of her release, induced by the husband's promise.


If Read had obtained the first order for the appointment of a receiver, and had neglected to perfect the appointment by the filing of security, the decision of'the referee would be right, for though an <mask> lien upon the equitable assets is obtained by the institution of supplementary proceedings, it is essential that the creditor should go on and perfect the lien by taking all the necessary steps to consummate the appointment of a receiver; or creditors, who are more vigilant, will obtain priority over him. The appointment of a receiver is not perfected until he has filed the requisite security, and when that is done his appointment operates by relation, from the time that an order was made for the appointment of a receiver. (1 Smith’s Chancery Practice, 802, 497 ; Fairfield agt. Weston, 1 Sim. & Stewart, 96; Lottimer agt. Lord, 4 E. D. Smith, 183; Wilson agt. Allen, 6 Barb., 543; In the matter of the Eagle Iron Works, 8 Paige, 383; West agt. Fraser, 5 Sandf. R., 653; Voorhees agt. Seymour, 26 Barb., 581.) By the practice which existed before the Code, the order for the appointment was to the effect that the master, unless the court appointed the receiver, should take from the person appointed by him the usual security, which was his own bond, with two sureties, for the performance of his trust, and file it in the proper office ; and that upon filing the report of the master, and of such security, that the person appointed should be vested with all the rights and powers of a receiver, according to the practice of the court. (2 Barbour’s Chancery Prac., 522, precedents Nos. 277, 280; Mead agt. Lord Orrery, 3 Atk., 237.) But the court in a proper case might dispense with the giving of sureties, and when the order was to that effect, the appointment was complete by the filing of the receiver’s own bond, which, however, was indispensable, as the court would not, even with the consent of the parties, sanction the appointment unless the re*472ceiver’s own bond was filed. (Carlisle agt. Berkley, Amb. 599 ; Ridout agt. Earl of Plymouth, 1 Dick., 68; Manners agt. Fruze, 11 Beav., 30; Connelly agt. Codd, 1 Hay. & J., 624; Hibbert agt. Hibbert, 3 Mer., 681.) When several bills were filed by different creditors to reach the effects of a debtor, the same person was appointed receiver in all the suits, and was required by the 193d rule of the court of chancery to give security sufficient to cover the whole property or effects of the debtor which might come into his hands; and if another bill was filed after the appointment of a receiver was made, the same person was appointed, and was required by the 194th rule to give 11 such further security ” as the master to whom the order for the appointment was referred might direct. This additional security was intended to cover any property of the debtor discovered or acquired since the last appointment. (Cagger agt. Howard, 1 Barb. C. R., 370 ; 1 Barb. Ch. Prac., 673.)


Plaintiff has no claim under the Lien Law for he filed no notice within the statutory period as required by section 10 (as amd. by Laws of 1916, chap. 507) to constitute a lien. (Stevens v. Ogden-130 N. Y. 182.) Therefore, no lien, <mask>, equitable or other, *502wise, exists (Tisdale Lumber Co. v. Read Realty Co., 154 App. Div. 270; Deane Steam Pump Co. v. Clark, 84 id. 450), and no personal judgment can be recovered thereunder. (Maneely v. City of New York, 119 App. Div. 376; Deane Steam Pump Co. v. Clark, 87 id. 459; Masons’ Supplies Co. v. Jones, 58 id. 231; Nussberger v. Wasserman, 40 Misc. 120.)


It follows from this toll concept of the tax that there never passed into the ownership of any legatee any share in the fund excised — in legal theory — from the property formerly owned by deceased and appropriated at the instant of death by the sovereign as its toll or tax on the privilege to pass on the balance. In con*434sequence there neYer- accrued any legal right in any beneficiary to the interest on the fund so excised. To the extent that such interest is needed to pay in full the.interest demands of the sovereign the appropriation of the interest to such a purpose by a fiduciary does no legal wrong to any beneficiary. While in an ordinary administration the beneficiary may hope that the income earned on the whole body of the property in the management of the fiduciary will be distributed as if earned on assets unburdened by the taxi, the opportunity to receive income on the toll exacted by and at all times remaining the property of the sovereign is due to the grace of the sovereign. When withdrawn, the loss of the opportunity is merely a deprivation of a gratuity — not a wrong. If the tax is paid on or before the due date the interest is waived finally by the sovereign. Indeed if the tax due New York State is paid within six months even a part of the toll itself is waived. If, however, the tax is not paid on time the <mask> waiver of the interest never becomes effective and the interest from date of death (the date when the toll was taken) is applicable to the payment of the penalty, at least to the extent required by the sovereign’s demand for penalty.


In Moultrie v. Hunt, 23 N. Y. 394, the Court of Appeals, referring to a will, say: “ It is of the essence of a will that until the testatrix’s death it is ambulatory and revocable. No rights of property or powers over property were conferred upon any one by the execution of this instrument, nor were the estate, interest or rights of the testator in his property in any way abridged or qualified by that act. The'transaction was in its nature <mask> and provisional; it prescribed the rules by which his succession should be governed, provided he did not change his determination in his lifetime.” See also Obecny v. Goetz, 116 App. Div. 807, and cases therein cited, and also Matter of Tone, 186 id. 363.


The court will summarily dispose of the threshold issue presented that the respondent Lorenz has no standing to defend this dispossess action as he is not a resident or occupant of the subject premises by virtue of his wife’s order of protection. While technically accurate, such an order does not change the character of Lorenz’s interest in the subject premises. Even if Lorenz was not a deed holder, New York Domestic Relations Law recognizes a whole host of <mask> ownership/possession rights in the marital premises. Additionally, orders of protection are of limited duration and can be and often are vacated or amended by the issuing court for a myriad of reasons. Similarly, Lorenz’s possession rights only conflict with his wife’s and he could immediately and legally retake possession of the premises upon his wife’s relocating from same.


In the opinion of this court, the purchaser’s obligation to “preserve the muniments upon which the validity of title depends”, is as applicable to the county as to an individual purchaser. (Real Property Tax Law, § 1006, subd 2.) Therefore, a tax sale certificate issued in compliance with section 1006 of the Real Property Tax Law is as necessary to the county as evidence of its <mask> right in the property as it would be to an individual purchaser. Without a tax sale certificate, there cannot be a valid tax sale relative to the properties here at issue.


Neither does any other act effected in the course of this litigation either constitute or waive the valid service of a summons. Defendant’s opposition to the motion to confirm, and his own motion to vacate the attachment, do not amount to an appearance. (CPLR 6223, subd [a].) (Indeed, since no action has been commenced, defendant’s time in which to appear has not yet begun to run. See CPLR 320, subd [a].) Similarly, defendant’s attorneys’ request for the papers upon which the attachment was granted, is authorized by CPLR 6212 (subd [d]) and is not an appearance conferring jurisdiction. Plaintiff’s responsive transmittal of papers, including a summons, to defendant’s counsel by return mail is certainly not service; nor is the acknowledgement of their receipt an admission of service of a summons. (Given the absence of any evidence that defendant’s counsel is a duly appointed agent for service of *175process under CPLR 318, such a contention is necessarily untenable.) The demand for papers of CPLR 6212, like the discovery provisions of CPLR 6220, permits the defendant to inform himself in order to prepare a defense to the attachment. The availability of these devices is therefore essential to the proper adjudication of motions to confirm or vacate. Such motions are the only available means of attacking the attachment, and thereby removing a jurisdictional predicate for the <mask> action. It would thus be anomalous, unfair and contrary to the statute’s intent to hold that exercise of these statutory rights be deemed a waiver of service.


But the "validity of the sale does not necessarily depend upon the just application and apportionment of the fund raised by it. The latter, though an important part of the duty of the court, may be carelessly or erroneously performed, or its performance may be waived by the negligence or the acquiescence of the parties; but in neither case ought the sale and the conveyances under it to be disturbed. When such a sale has been decreed .without fraud or collusion, that equitable doctrine, so lucidly stated byLord Redesdale, applies in full force : “ The general impression of all the cases is, that a purchaser has a right to presume that the court has taken the steps necessary to investigate the rights of parties, and that it has on investigation properly decreed a sale. Then he is to see that this is a decree binding the parties claiming the estate, that is to say, that all proper parties to be bound are before the court; and he has further to see that taking the conveyance, he takes a title which cannot be impeached aliunde. He has no right to call for protection from a title not at issue in the cause and no way affected by the decision ; but if he gets a proper conveyance of the estate, although the decree may be erroneous, and therefore to be reversed, the title of the purchaser ought not to be invalidated.” 2 Sch. & Lef. 577. The vice chancellor’s great difficulty in coming to this conclusion seems to be, that as the law now stands the wile cannot be compelled to accept a settlement from her husband in lieu of dower, and that our statutes are explicit that no act or deed, without the assent of the wife, legally evidenced, shall prejudice her right to dower. “ How then,” he asks, “ can the courts say that the act of the husband in subjecting his wife to a partition suit, or that a judgement or decree rendered therein without her assent evinced, is to have the effect of barring her right or that she shall accept a pecuniary or any other provision in lieu of her dower?” But the policy of the law is clearly only the protection of the wife’s dower against the abuse of *519the husband’s power and his acts. Now a sale in partition cannot be the mere act of the husband. It must be shewn to be necessary for the general benefit of all interested in the lands. To such a necessity, when allowed by the court, the husband’s right of property gives way, either with or without his consent; then the <mask> right of dower being but an incident, must follow. It does so, not only in this case, but in many analogous ones, where private property is taken for public use and pecuniary compensation allowed, as in lands taken for streets in cities, for roads or for canals. In this instance of a partition sale, the sale is not allowed to be made for the purpose of divesting the wife’s dower, but it is made because the interest of numerous joint owners demands it. The wife’s future claim of dower is then divested, not by act of her husband but by the necessary operation of law; and the only question that then remains is, how shall the value of that interest be best ascertained, and when so ascertained, secured. The chancellor has, in my judgment, shown conclusively how this can and ought to be done.


The parties in this case at the start of their union (a second marriage for both) were faced with a choice. Where would they live? The choices were the wife’s abode, the husband’s or a new abode. They chose hers and have lived there for over five years. At the time of the marriage, the apartment was a nonassignable leasehold interest. It was only upon receipt of the “redherring” (offering plan for co-op conversion) that the right of possession became valuable property. In effect, it became an <mask> property right.


When the document is considered in the light of its recitals, it must be held that it states the intention and agreement of each party thereto for himself to surrender all choate and <mask> rights in the property of the other party thereto not only in respect of what each then owned but also in respect of what each might thereafter acquire. While it is said that recitals in a contract form no part of it (Ross v. Ross, 233 App. Div. 626, 635) such recitals may be resorted to as indications of the intentions of the parties and the scope and meaning of the agreement (Maloney v. Iroquois Brewing Co., 173 N. Y. 303, 307). Here the last recital is in form an agreement. There is no reason why it cannot be so considered. If it and the other recitals are regarded merely as declarations of intention and scope such declarations leave no doubt as to the coverage intended for the renunciations and releases which are interchanged by the text. At the time the document was signed the right to elect against a will had long been the established law of the State. There is present therefore no such problem in the interpretation of the paper as that discussed in Matter of McGlone (284 N. Y. 527, affd. sub nom. Irving Trust Co. v. Day, 314 U. S. 556). The document is held to be sufficiently broad in its text to operate as a renunciation and surrender by petitioner of all interests in the property of his now deceased wife; unless some provision of subdivision 9 of section 18 of the Decedent Estate Law requires the court to hold the paper inoperative according to its tenor.


Sections 6, 7, 8, 9, and 10, are also supposed to be applicable. They are consistent with sections 117 and 118 of the Code; perhaps what is directed in them, as to parties, would be necessary, at least proper, under those sections. In Ripple v. Gilborn, before cited, much reliance was placed upon sections 5 and 6, as requiring that the wife of a plaintiff should be made a party, as entitled to an <mask> right of dower.


The testator never parted with control and dominion over the account. On the contrary, there is indication here that he intended to preserve control in himself, for, in his letter, he directed that “ all future balances to my credit for dividends or sale ” be immediately paid to the Chase National Bank to the credit of his individual account in that bank. The transaction was <mask> and incomplete. There was no present and absolute transfer. (Farmers’ Loan & Trust Co. v. Winthrop, supra; Matter of Ludlam, 158 Misc. 283.) The gift was executory and prospective, as is evidenced by his letter to the brokers in which he stated that he “ would also like this account of mine with you to be considered a joint account with Mrs. B. Mösch * * * and please let me know if there are papers to be filled in this connection.” The situation here is similar to that in Farmers’ Loan & Trust Co v. Winthrop (supra), where Judge Cardozo, in referring to a letter from the testatrix to her attorney in fact, said: “ Words of present transfer are conspicuously absent. What we have instead is a request or at best a mandate, incompetent without more to divest title or transfer it, serving no other purpose than a memorandum of instructions from principal to agent as a guide to future action.” Nor has there been shown any consideration for the transfer, which would operate to vest the account in the claimant under the doctrine of equitable assignment. (Matter of Smither, 30 Hun, 632; Matter of Ludlam, supra.)


I cannot yield to the argument, that the legislature intended to destroy <mask> rights of dower without providing for compensation. If any such innovation upon the rights of married women had been designed, it would, I think, have been expressed in unequivocal terms ; and besides, if these rights are taken away, all other contingent estates must fall with them, for the statute has made no distinction. We cannot hold that inchoate rights of dower are destroyed by the sale, without virtually deciding that a contingent remainder, or executory devise in fee, would also be destroyed. That would, in effect, be giving the whole property to the tenant for life, or other owner of the first estate, for he would take the whole proceeds of the sale. If such an interpretation of the statute involves no question of power, it amounts at least to an impeachment of the justice of the legislature. It may well be provided by law that a particular description of estate shall not be created in future, but it is quite a different question whether a legal estate already existing can be takers from one and given to another.


In United States v. Crest Finance Co. (291 F. 2d 1) it appeared: that a subcontractor taxpayer entered into a subcontract with the prime contractor for hauling and compacting dirt providing that progress payments were to be made based on weekly reports predicated on the number of loads carried, same being subject to revision as to exact quantity by the section engineer; that Crest Finance made certain loans to the taxpayer, said loans being evidenced by the taxpayer’s notes and secured by concurrent assignments of the taxpayer’s right to payment from the prime contractor up to the date of each assignment; that after these assignments were made, but before final computation of the amount due to the taxpayer took place, there were filed certain Federal tax liens. The United States Court of Appeals held that the Federal tax liens were superior to the prior assignment of the amounts due to the petitioner, Crest Finance, stating (p. 5): “We must and do hold that Crest’s lien was not choate and perfected as those terms have been defined by the Supreme Court.” In that matter, in *464December of 1961, the Solicitor General filed with the Supreme Court a memorandum in the nature of a concession which stated, among other things: “ Just as a mortgage on real estate is not made <mask> because the value of the property (or even the mortgagor’s title to it) is uncertain, so the petitioner’s lien on the taxpayer’s contractual right to payment for work performed is not made inchoate because the amount payable on the assigned right has not been finally ascertained. The requirement of definiteness of amount goes only to the debt secured by the lien, not to the property (otherwise specifically identified) that is subject to the lien.” On December 18, 1961, the United States Supreme Court rendered a unanimous decision in said matter stating: “ In the light of the Solicitor General’s concession that petitioner’s lien is choate, and the Court agreeing therewith, certiorari is granted, the judgment is vacated and the case is remanded to the Court of Appeals for further proceedings not inconsistent with this opinion.” (368 U. S. 347.)


This “ right of choice ” which is available to the innocent spouse is of considerable significance. While it is clear that religious considerations, a spouse’s <mask> inheritance rights, and other related economic benefits such as those under social security, pension and group health plans, are neither “vested rights” (see Newman v. Dore, 275 N. Y. 371; Irving Trust Co. v. Day, 314 U. S. 556; cf. Flemming v. Nestor, 363 U. S. 603) nor otherwise constitutionally protected for purposes of defeating" divorce legislation, such considerations are nonetheless recognized to have great meaning and importance in a practical sense (see, for example, Report of Special Committee on Matrimonial Law, N. Y. County Lawyers’ Assn., 24 Bar Bull. 62, 66-67 [1966]). The Legislature has manifested its sympathetic recognition of these practical considerations by drafting section 170 in a manner which gives the innocent spouse, if so disposed, an opportunity to preserve the various rights contingent upon continuation of the marital state by permitting such party to choose a course of action which will effectively preclude any recourse to subdivision (5) by the guilty spouse. That such alternative choice is meant to be available to an innocent spouse in a real, and not merely a theoretical, sense becomes apparent when viewed in light of the Legisla*417ture’s prior enlargement of the services and jurisdiction of the Family Court.


Abandoned Property Law § 1221 requires that the court conduct a hearing and take testimony in order to determine the facts alleged in the escheat petition, and thereafter make and enter findings and a final order. This proceeding, notwithstanding its pendency for eight years, never progressed to the point of a hearing; no findings and order were ever made. Therefore, in this regard, petitioner’s rights, if any, never matured beyond being <mask>. Under the circumstances, the enactment of 26 USC § 6408 may validly be applied to cut off whatever inchoate rights petitioner may have had under that section.


*45promise or contract by an infant is void ; and again Derby v. Boucher, 1 Salk. 279, it was expressly decided by the court that inflmey might be given in evidence under the general issue, “ non assumpsit,” because the infant’s promise was absolutely void, and not merely voidable, as a deed, which, taking effect by delivery, is a more deliberate act. The case in Stone v. Withipol, Cro. Eliz. 126, is to the same point. In Van Winkle v. Ketchum, 3 Caines’ R. 323, the decision of the supreme court is on the same principle; and in Swasey v. Adm. of Vanderheyden, 10 Johns. R. 33, the decision is express, that a negotiable note, given by an infant, even for necessaries, is void. In Conroe v. Birdsall, 1 Johns. R. 127, it was held that a bond executed by an infant is void, though he fraudulently alleged, at the time of making it, that he was of full age. Many other cases might be adduced; where the acts or contracts of an infant are adjudged void, especially in respect to parol promises. And an authority to this point, of greater weight than any single case, and perhaps than many cases, is to be drawn from the entries or precedents of pleading. Lord Coke says, “ One of the best arguments or proofs in law is drawn from the right entries or course of pleading.” Now all treatises of pleading, both English and American, admit that infancy may be proved under the general issue of non-assumpsit, which would be contrary to all analogy, if the contract-were merely voidable at the act of the party ; and in England, the practice and the precedents are uniform to show, that a joint contract by an infant and an adult must be treated as though it were the sole contract of the adult; and therefore, if the suit be against the adult alone, and he plead in abatement the non-joinder of his co-contractor, the plaintiff may reply his infancy. As a consequence of this principle, the English courts hold that if the action be brought against both, and the infancy of one is alleged the plaintiff shall be nonsuited. But this position, and as I understand the case, this only, was overruled by the supreme court in Hartness v. Thompson, 5 Johns. R. 160, where it was decided that in such a case the plaintiff might enter a nolle prosequi as to the infant and take his judgment against the adult. The decision, however, amounts only to a rule of practice, and does not necessarily overturn the main proposition laid down by Sergeant Williams, Ohitty and other great authorities, that the plaintiff may treat the contract of the infant as a nullity, and proceed against the adult as though he were the sole contractor. Now if this position be correct, and I have no doubt of it, it necessarily subverts, or rather qualifies two propositions, 'frequently, and I apprehend sometimes loosely given out; first, that certain contracts by an infant are merely voidable ; and second, that no one can avail himself of the fact of infancy but the infant himself. With great diffidence I will suggest, that possibly, what has led to so much difficulty in construing the contracts of infants, and produced so many conflicting adjudications, is mainly the wrong use of terms, or the application of words having a general legal moaning, to a case where the general meaning does not express the exact idea intended. When the law terms a contract merely voidable, it means that it is valid and effectual unless and until the party does something, which he may do, to avoid it, and the term therefore is applied with great propriety, to certain consummated acts of an infant, as where he has paid money, delivered property in exchange, &c., &c.; but it is improperly applied, I apprehend, to every case of a prospective act agreed to be performed by an infant, for in respect to such, the affirmative action of the infant to disannul them is not required. On the contrary, they are null and unenforcible against the infant except he does something to ratify them. All executory agreements, therefore, by an infant, except for the payment for necessaries, should be termed, what in truth the law deems them to be, <mask> contracts, capable of being completed by the infant by a subsequent act, but not capable of being enforced against him without such subsequent act. In other words, it is in no proper sense a legal contract, though it may be a foundation or legal inducement upon which the party by his own act may complete a *46legal contract. Sir James Mansfield, in Burgess v. Merril, 4 Taunt. 468, ridicules the idea of a contract that, does not bind the parties to it; that “ it is inseparable from the idea of a contract that it should be binding,” and sheer nonsense to talk of avoiding a contract by pleading that it is not a contract.


A will is ambulatory not only in being subject to revocation and alteration, but in being incomplete and <mask>. Before rights can he acquired under it the testator must die, and at the time of his death the will must be valid under the laws then existing. Moultrie v. Hunt, 23 N. Y. 398. And this I suppose to be true whether a change in the law has occurred by legist lation or by removal to another State where different laws exist.


If this court were to decide the issue of disqualification solely on the basis of the current affidavits, the court would be choosing between two <mask> versions of the facts and crediting one version or the other—simply put, it is a “client says, attorney says” conundrum. Traditionally, when faced with different versions of the contested facts, this court would deny both applications and refer the matter to a hearing, as apparently other New York courts have done. (Olmoz v Town of Fishkill, 258 AD2d 447 [2d Dept 1999]; Poli v Gara, 117 AD2d 786 [2d Dept 1986]; Matter of Weinberg, 132 AD2d 190 [1st Dept 1987].) The Court of Appeals, albeit almost a century ago, suggested that issues involving attorneys’ disqualification should not be decided on the basis of conflicting affidavits, but instead a hearing is required. (Matter of Weitling, 266 NY 184 [1935].) However, the prospect of a hearing in this instance leads to a difficult multi-faceted dilemma: how can the court conduct a hearing on the husband’s claim that he made confidential or privileged communications to the wife’s attorney during her representation of him without requiring him to disclose those otherwise confidential and privileged communications to the court and his prior counsel? Any hearing in this case would require the husband to set forth the dates and times of confidential communications and describe those communications in detail. The wife’s attorney—the exact person to whom *888those confidential communications would be most informative in the pending matter—will be present in the court room and could presumably cross-examine the husband. The cross-examination would be nearly legally incomprehensible, with the wife’s counsel arguing that the husband never told her confidential information and the husband swearing that he did. In addition, the wife’s counsel would then be required to take the stand, testify to her version of events and be subjected to cross-examination to test her veracity on her claims that she was never told anything confidential. This court would be faced with ascribing veracity either to the husband or the wife’s attorney, a frequent counsel in cases before this court. The notion of an attorney being cross-examined about allegedly confidential communications between the attorney and her prior client—when her current client with diametrically contrary interests to her former client sits in the courtroom—is almost surreal. A number of courts have noted the intrinsic dangers of holding a hearing on confidential disclosures between clients and their attorneys. In a California case, Pemstein v Pemstein (2004 WL 1260035, 2004 Cal App Unpub LEXIS 5450 [Ct App, June 9, 2004, No. G029394] [ordered not published]), the court declined to require proof that confidential information had passed between attorney and client as a result of prior representation and simply invoked the “appearance” rule.


What was the effect of that document? Counsel for petitioner argue that this paper is a receipt, and not a release, and cannot be interpreted a surrender or abandonment by *498the wife of the community rights, and they claim that the signer was not properly protected by legal advice when the instrument was executed, and rely upon the testimony of a subscribing witness, an attorney, to point its meaning merely to the expenses attendant upon the divorce litigation. It is argued that it could not possibly have referred to an <mask> right, a mere expectancy, dependent upon the prior decease of her husband; something that might not occur in the order of nature anterior to her own demise, and that it has no reference to anything but the main issue. It could not have altered her legal relations to the property, and she is here demanding her due. As heir at law she cannot be devested of her rights by any instrument so meager and restricted as this receipt, which is not a relinquishment. It is insisted by her counsel that petitioner has a substantial claim upon the estate of decedent, and is entitled to the consideration of the court in a meritorious manner. She is not estopped by any act of hers in evidence from asserting her spousal rights; her conduct throughout has been ■ consistent with her claim. Furthermore, it is insisted that the relations of the spouses must always be borne in mind; so long as the law had not severed their status, although separated by agreement, they occupied toward each other confidential and fiduciary relations.


The plaintiff’s claim, under the most favorable view, was <mask>. Defendant had no option open to it to dispose of the proceeds, except to do so at its peril. Clearly, not having received the proof of prior death of the beneficiary, it could not pay the proceeds to the plaintiff. It could not pay the money into court, as a stakeholder, no action having been instituted by the plaintiff against it, nor could it commence an action against the plain*122tiff and seek to interplead the beneficiary since concededly, it had no knowledge of the whereabouts of the beneficiary.


The constitutional provision of 1875, above referred to, placed important restraints upon the power of the legislature to authorize the construction of railroads upon the streets, and imposed conditions to enable the city and property owners to protect their own interests against the improvidence of the State, or the rapacity of the railroad company. The grant of the franchise originates with' the State as before, but power of the State to complete its grant, so as to vest it in the possession and enjoyment of the grantee, is made dependent upon the consent of the city and of the property owners; until this consent be given the grant is only <mask>, a mere tender upon conditions, and the conditions may never be performed by the city and property owners, or the grant be accepted by the grantee. The city and the property owners are thus brought in as parties whose consent is necessary. Some of the terms which the ciiy may impose, as the price of its consent, are prescribed in chapter 252, Laws 1884. Section 7 provides that: “ The local authorities of any incorporated city or village, to whom application under the provisions of this act may be made for consent to the construction, maintenance, use, operation or extension of a street surface railroad upon any street, * * may, at their option, provide for the sale of, and sell at public auction the franchise, subject to all the provisions of this act.” Thus the legislature expressly makes the franchise purchasable property. It may be observed that a franchise, purchasable in the first instance at public auction, is obtainable upon other considerations than the gracious favor of the sovereign and special personal confidence and trust in the grantee, which form the basis of a tenure for life.


As soon as this arrangement was perfected the deed or first mortgage was canceled or superseded by the mortgage in su-it which she did not sign, and her <mask> right of dower was restored t,o her free and clear of any incumbrance. (Elmendorf v. Lockwood, 57 N. Y., 325; Hammond v. Pennock, 61 id., 145; Malloney v. Horan, 49 id., 111.) Reference is made to numerous cases to show that in other' states the rule is that a- deed from the holder of an equitable mortgage to the owner of the fee operates as a satisfaction of the mortgage. (Hunt v. Hunt, 14 Pick., 374; Cole v. Edgerly, 48 Me., 112; Collamer v. Langdon, 29 Vt., 32.) Also, that in this State such a transaction operates as an assignment of the mortgage interests in the premises or as a cancellation by the mortgagee. (Miner v. Beekman, 50 N. Y., 344; Winslow v. Clark, 47 id., 261; Bostwick v. Frankfield, 74 id., 214; Millard v. McMullin, 5 Hun, 572.) But it is unnecessary to discuss whether the deed-mortgage was assigned, satisfied or merged. So far as .Mrs.- Post’s rights are concerned it was canceled. • It no longer stands in the way of her claim to dowér in the whole fee. The plaintiff, moreover, claims that the mortgage in suit purports to be a “ purchase-money mortgage,” and, therefore, she having signed the first deed, dower cannot be claimed. The answer to this consists in the fact that it was not a purchase-money mortgage. It was properly shown upon the trial, and found as a matter of fact, that it was given to secure past and future indebtedness, precisely the same as the previous, deed-mortgage had been given,-for which it was given in *455exchange. Again, it was not the premises or fee of the land that Collingwood was selling to Post, for Post already had that, and Mrs. Post held her dower in it subject to the deed-mortgage, but he was canceling his mortgage and taking a new one in stead. There was nothing therefore in the transaction upon which the words “ purchase-money ” in the new mortgage could have any legal bearing or effect. The conclusion seems irresistible from reason as well as authority, that Mrs. Post is entitled to an inchoate right of dower in the whole premises. We are also of the opinion that the claim of the plaintiff must be confined to the amount stated in the mortgage trust, $4,000 and interest. The decree may be amended accordingly, and judgment of affirmance entered thereon, without costs to either party in this court.


A view more consonant with fair dealing and which carries into effect the intendment of the parties, as expressed in the language employed by them, is that which holds that while the monthly installment became due on November first, there was no default until the expiration of the month of arrears. Then on December 1, 1929, the installment remaining unpaid, the contract became *37automatically canceled pursuant to its provision for cancellation, and the “ preceding month ” must be taken to mean November. Up to December first the mutual rights and obligations of the parties, as agreed upon in case of cancellation, had not taken form; they were <mask> and unenforcible; the power to continue or terminate the contract during the month of arrears was entirely with the plaintiff. Therefore, the default occurring on December 1, 1929, and the market bid price of November 15, 1929, having been twenty-eight dollars, there is nothing due plaintiff from defendant.


Professors Wechsler, Jones and Korn of Columbia Law School were intimately and extensively involved in the drafting of the MPC. In their extraordinary and elaborate two-part article in the Columbia Law Review (61 Col L Rev 571, 957), which Justice Nathan R. Sobel correctly characterizes as "the standard work on the subject of anticipatory or <mask> crimes” (32 Brooklyn L Rev 257, 260), they set forth among other matters, the rationale for and explain the meaning and application of the unilateral approach as found in the MPC. Since, as hereinabove indicated, our conspiracy statutes are substantially predicated upon and follow that approach (although in somewhat different language), it behooves us to note what these experts say, in part:


Counsel for petitioner contend that inasmuch as the property was agreed to be sold, not sold, by testator to the corporation, the whole subject of the bequest passes to petitioner and the two other legatees, subject only to such remedies as the corporation is entitled to upon said agreement of lease and sale. Section 1301 gives the petitioner and his colegatees not the claim against the véndee but the property itself, in specie, limited only by the right of the vendee to complete the <mask> purchase.


*330It will be perceived that the debts themselves were not released, and that the property conveyed was to be employed in discharging them, as already mentioned, to such an extent as its proceeds would permit. The defendant was not a purchaser, therefore, for value, and took the deed subject to all existing equities. One of these equities was the <mask> right of dower in the premises in favor of the plaintiff. That right was a subsisting and valuable one, if it had not been conveyed, to protect and preserve which she could maintain an action (Simar v. Canaday, 53 N. Y., 305), and it is one which the law creates on the instant of marriage for the benefit of the wife, and for which she is not indebted to the husband except by the mere act of union. She does not acquire it by assignment, or deed or conveyance from him directly or indirectly.


Unquestionably, as the proposed contract itself indicated, there could be no firm or fixed deal until the proposed terms in the contract received the approval of the sales manager. Up to that time, the proposed contract remained an <mask> deal with no legal force or effect. It would be a revolutionary change in the law if we were to hold that a failure to agree on a contract created a new cause of action, or that a party to a negotiation could change the proposed terms or conditions only at the peril of being subjected to a lawsuit for "deceptive *128practices”. The State Legislature, in authorizing remedies for "deceptive practices”, and the courts, which have a broad range in construing such generalized terms, surely have not been empowered to change the time-honored law that a suit on a contract will be upheld only upon a showing of "offer” and "acceptance”.


A release, conveyance or covenant with the committee of the husband is not valid, unless it would have been valid if executed to *230and with the husband. The fact, that the instrument runs to the-children of the husband, does not effect a conveyance. or release of her right to dower. An <mask> right to dower is not an estate,, nor is it an interest in real estate, and it is not the subject of grant or assignment. (Moore v. The Mayor, 8 N. Y., 110; Marvin v. Smith, 46 N. Y., 571, 574; 1 Wash. R. P. [4th ed.], 301, p. 1.). “ During coverture, the wife’s inchoate right of dower is incapable-of being transferred or released, except to one who has already had, or by the same instrument acquires an independent interest in the-estate.” (Elmendorf v. Lockwood, 57 N. Y., 322, 325; Marvin v. Smith, supra) An inchoate right to dower not being the subject of a grant, the granting words in the conveyance do not carry the-inchoate right to the persons described as grantees. A release is-the only mode by which a wife can bar her inchoate right to dower. A naked release to one not in possession of or having a vested interest in the premises is void. (3 Wash. R. P. [4th ed.], 380, p. 21; 4 Greenl. Cruise, 110, 115, pp. 21 to 40; Elmendorf v. Lockwood, supra.) It is recited in the instrument that the childr-en are the-prospective heirs of the husband, and it is urged that their interest as apparent heirs was sufficient to make the instrument to them oper-ative as a release. An heir apparent is one whose right of inheritance is indefeasible, provided he outlives the ancestor, as the eldest son, who must, by the common law in England, become the-heir of his father on his death. An heir presumptive is one who, if the ancestor should die immediately, would succeed to the estate,, but .whose right of inheritance may be defeated by the birth of a nearer heir. (2 Black. Com., 208; 3 Pres. Abs., title 5.) Neither definition describes the interest of persons whose right to inherit, may be defeated by conveyance or devise. Neither heirs apparent nor heirs presumptive have a legal estate or interest, though they •may, in equity, bind this possibility by way of estoppel as against themselves. (3 Pres. Abs., title 6.) The children of the husband had no vested interest or estate in or possession of the land, and the instruments did not operate as a release of the plaintiff’s right to dower. Neither do the instruments, and the transactions out of which they arose and of which they form a part, create an estoppel in favor of the children and against the plaintiff. The consideration was paid by the committee of the estate of the husband. The *231children paid nothing, nor did they surrender anything, nor were their legal rights in anywise affected. At the date of this deed a married woman was authorized to sell and transfer her real a.nd personal estate and enter into contracts and covenants in respect thereto; but an inchoate right to dower is not a part of her separate estate. It cannot be sold or taken by creditors. It is a mere right arising out of the marital relation which may or may not ripen into an estate.' Chapter 381, Laws 1884, was passed after the execution of the deed. The statutes existing at the date of this deed were not broad enough to authorize a married woman to contract in respect to this right, except in the manner pointed out by the Revised Statutes. (Bertles v. Nunan, 92 N. Y., 152, 160.) Before the statute of 1848 and subsequent statutes enlarging the rights and powers of married women, they could not estop themselves by covenants. (Jackson v. Vanderheyden, 17 Johns., 167; Big. Est., 276.) But since these statutes, they may by such covenants as they are authorized to enter into. This not being a subject which the statutes authorize them to contract in respect to, the plaintiff is not estopped by the deed and contract from recovering her dower. To bring the ease within section 12 of title 3, chapter 1 of the second part of the Revised Statutes (1 R. S., 741), the provision in lieu of dower, must take effect on the death of the husband. (McCartee v. Teller, 2 Paige, 511; affirmed, 8 Wend., 267; Crain v. Cavana, supra; Guidet v. Brown, supra.)


In Logan v. Whitley (129 App. Div. 666) the prospective husband and wife entered into an antenuptial agreement by which the wife, if she survived the husband, should accept from *752his estate the sum of $10,000 in lieu of dower and of her distributive share of the personal property and that the husband’s estate should hold all the real estate which he then owned or might thereafter acquire free from any claim of dower, <mask> or otherwise, and the $10,000 was made a charge upon the entire estate. Thereafter the parties intermarried and within a few years the husband shot and killed the wife and then committed suicide. The wife’s personal representative brought action against the husbdnd’s estate to recover the sum of $10,000. Actually the wife did not survive the husband, but recovery was permitted the court saying (pp. 669-670): “ In this case the happening of the contingency upon which the payment was to be made was prevented by the wrongful act of the promisor, and hence neither he nor those claiming under him can defeat an action on the promise by showing that the contingency did not happen. A party may not profit by nor take advantage of his own wrong.”


On the trial the plaintiffs offered in evidence a deed from George Webster and Eleanor Webster, dated April 30, 1859, to Simeon D. Webster, through whom plaintiffs claim as a part of their chain of title. This was objected to and the referee held it inadmissible under the pleadings, except to show a release of Eleanor’s <mask> right of dower, and confined its force and effect to that alone.


Since the execution by Mrs. Tinkle of the mortgage, and while it remains unsatisfied, her <mask> right of dower is in the equity of redemption only, which she can make available by redemption, when by surviving her husband that right shall become a vested one. The defendant purchased that equity of redemption, and it must here be assumed that he paid what it was worth and is entitled to all the benefits and rights which the title to it gave him. He purchased subject to the mortgage in question. To the extent of that" incumbrance on the premises this inchoate right of dower was then released. By the enlargement of that right the estate purchased by the defendant Brick would be proportionately diminished. If the premises be sold under the decree, subject to her inchoate right of dower, it may be assumed that a portion of the equity of redemption purchased by him will be exhausted to satisfy the mortgage; and when so satisfied this contingent right of the wife will apply to the entire premises. The defendant Brick does not then get what he purchased. To protect his right, and to restrict the inchoate right of the wife to that which she had when he purchased, the defendant Brick desired and sought to pay the amount to which the plaintiff was entitled, and obtain an assignment of the mortgage.


First. The dismissal of the complaint, as against Edward D. Merritt, on the 9th of February, gave him a right to recover costs, which was perfected on the fifteenth. But until these costs were liquidated and adjusted and judgment entered, his right had not matured into a debt or personal obligation against the plaintiff,- for which a suit might be maintained, nor had it become available as a judgment in which the court had jurisdiction to adjust or make a set-off of the respective claims of the parties; as, for instance, where, in a recovery for less than fifty dollars, costs are allowed to defendant, in such case no assignment of the recovery, before judgment, would debar the defendant from a set-off of his costs, and the court would direct such set-off and order execution for any balance due to one party from the other. But the dismissal of the complaint in this case, as to Edward D. Merritt, was, in its consequences, no greater in preventing or interfering with the complete operation of the assignment of the verdict in question, than if he had obtained such dismissal on the same day of another action in which Wood had been plaintiff. In either of the two latter cases the right to the costs, as a debt that could be set off, was <mask> .and subject to future judicial action in liquidating its amount (Supervisors of Onondaga agt. Briggs, 2 Den., 26), and only became perfect on the subsequent entry of judgment therefor.


The question as to what portion of the real estate the children are entitled is not to be determined so readily for the reason that the amendments to sections 82 and 83 of the Decedent Estate Law and section 190 of the Real Property Law, which went into effect September 1, 1930, abolished the <mask> right of dower and gave the widow, in lieu of her dower, one-third of the real estate of deceased outright. These statutes, as amended, apply to the estate of a person dying intestate after August 31, 1930, and to the estate of a testator leaving a will executed after that date. It is perfectly apparent from sections 82 and 83 of the Decedent Estate Law that these provisions were intended to be in lieu of any and all rights of dower. Section 82 specifically so .provides and the note of the Commission thereunder expressly states: “ It is intended that no surviving spouse shall have a right to dower in addition to the greatly increased participation provided under section 83.”


His right to give protection to and preserve the estate he purchased in the premises seems clear. That can be done only by taking an assignment of the mortgages. No reason appears by the record why he was not entitled to them. The deeds import the purchase by him of the entire equity of redemption, and the evidence tends to show that he expected to have that relieved from, the <mask> right of dower of the mortgagor’s wife, but he learned before the conveyances were made to him that she declined to release it. And although lie may, under the circumstances, have refused to complete his purchase, that fact has no importance here. • Her possibility of dower in the equity of redemption remains. So far as the facts are disclosed by the evidence before us it appears *128that the duty of the plaintiff to assign to the defendant Brick the bond and mortgages was produced by the tender and offer of payment by the latter to him of the amount due on them, with the request to make the assignment, and the defendant ws;s entitled to that relief. There are no other questions requiring consideration.


.So strong is the current of authority that it would not be overstating the matter to say that a presumption in favor of subrogation attaches as a consequence of this type of loan. In Matter of Kelley (251 App. Div. 847) and Matter of Lamport (71 N. Y. S. 2d 414) where enforcement of the beneficiary’s claim against the estate was denied there were very strong indications of the insured’s intention to charge repayment of his indebtedness exclusively to the policies. In the Kelley case, when the bank loan was negotiated the borrower revoked the designation of his wife as beneficiary, redesignating her as secondary beneficiary subject to the assignment of the policy to the bank, thus evidencing the insured’s intention that only the *470equity in the policy above the amount of the loan should be received by the beneficiary. Here, there was no such revocation by Mr. Cummings, the deceased, nor was there such redesignation of the widow as secondary beneficiary. The Kelley case is zz therefore inapplicable. Nor is Matter of Lamport (supra) controlling. In that case, an outstanding loan with the insurance company was replaced by a bank loan for the sole purpose, as the court pointed out, of effecting a saving of four percent annually in interest charges for the benefit of the beneficiaries as well as the insured. In the case at bar, the widow, at decedent’s request, joined in the assignment of the policies to the bank and also became a joint maker of the note, thus rendering herself personally obligated to the bank as an accommodation maker, the estate of the deceased remaining as to her primarily liable. Moreover, inasmuch as decedent had full power to assign the policies his request that petitioner join with him was a recognition of her <mask> right to the full amount of the insurance proceeds. These facts evidence deceased’s intention that payment of the note should not be exclusively charged to the policies but that the beneficiary should receive the full proceeds of the policies assigned by her, and if the proceeds be employed to pay the note the beneficiary should be subrogated to the bank’s claim on the note against the estate. The claim is allowed.


The fiduciary contends that assessing poundage is unfair; that it is intended only for "collecting” money; and, in effect, that the policy of insurance never had any separate, merchantable or economic value on which to assess poundage fees. In his concurring opinion in Simpson v Loehmann (supra) Judge (now Chief Judge) Breitel did make some statements which tend to support this argument. He stated (p 315) that "these contemporary statutes are designed to reach every kind of marketable and assignable* property, and every kind of right that is reducible to marketable or assignable economic value. They refer to debts and property, and in the case of causes of action they must be assignable. But they are not intended or designed to reach every obligation created by contract, however <mask>, conditional, contingent, or personal. The obligation to defend and, even more, the obligation to indemnify are just such inchoate, conditional, contingent, and personal obligations. Before they come into play, there must be an external event (usually an accident) within the coverage of the policy, performance of conditions precedent by the insured, and co-operation by the insured. Even then, if the insurer’s obligation to defend is fully performed, there is nothing of economic value to which the insured may make claim, receive, or assign. As to the obligation to indemnify, that does not ripen until accident, defense, and defeat resulting in judgment against the insured.


"I believe that Seider should be overruled. Doubtless the obligation to defend and indemnify is a valuable right but the 'debt’ of the insurer it represents is <mask> and conditional and attachment is thereby precluded. (See CPLR 5201, subd [a].) The law prior to Seider was clear that contractual rights which were not yet translatable into a present duty were too inchoate to be attached. (E.g., Sheehy v Madison Sq. Garden Corp., 266 NY 44.) After Seider, in all other spheres, the law was equally adamant: absent a present duty, there is no debt. (Glassman v Hyder, 23 NY2d 354, 359.) The obligation to defend and indemnify is an important right. The duty to defend may even be more important than the duty to indemnify, at least where the action is for more than the policy limits. However, neither duty is severable from the insurance


Widow held not entitled to dower when during her husband’s lifetime, he having been declared a lunatic and a committee of his estate having been appointed, she. entered into a contract with the committee and her husband’s children and executed to them a deed by which in consideration of the receipt by her of about one-third of her husband’s property, she released all interest in his estate, including her <mask> right of dower in specific terms stated, and covenanted to execute proper release in the future. Jones v. Fleming, 104 N. Y. 418.


The assignment to plaintiff of the April rent was dated_ April 15th, 1870; but it does not appear whether that trial or judgment was before or after such assignment, and even if the "decision in Allen v. Blath could have had any effect upon the other subsisting or <mask> rights of Helen A. D’Orsay,. it could not prejudice those of the plaintiff which he might have acquired by a previous assignment.


In respect of this lien the Court of Appeals said (295 N. Y. 510, 517-518): “ The interest which passed to the trust company here by reason of the assignment was the right to receive the proceeds when they became available after the payments enumerated supra. "When they became available, the lien attached. * * * The lien of the trust company here was an <mask> equitable lien which did not become perfected under the circumstances disclosed until the proceeds of the sale of the seat became available after the claims of the exchange and its members were satisfied.” (Italics in original.)


A seizure requires a law enforcement officer to have reasonable suspicion of criminal activity. Our Supreme Court has defined reasonable suspicion as "a minimum level of objective justification which is considerably less than proof of wrongdoing by a preponderance of the evidence." State v. Johnson, 293 Kan. 1, Syl. ¶ 4, 259 P.3d 719 (2011). When reviewing an officer's belief that he or she possesses reasonable suspicion of criminal activity, appellate courts must determine whether the detention is justified by the totality of the circumstances with "deference to a trained law enforcement officer's ability to distinguish between innocent and suspicious circumstances . . . . However, the officer must be able to articulate more than an <mask> and unparticularized suspicion or hunch of criminal activity." 293 Kan. 1, Syl. ¶ 4.


The effect of such assignment, as relates to the <mask> right of dower referred to, would be to continue it in the same condition as when the defendant purchased the equity of redemption. He *126would, for the pui’poses of his protection in that respect, be treated as a mortgagee in possession, and the remedy of Mrs. Finkle for her dower in the equity of redemption would be in equity and by way of redemption. (Jackson v. De Witt, 6 Cow., 316; Bell v. Mayor, 10 Paige, 49 ; Van Dyne v. Thayre, 19 Wend., 162; Swaine v. Perine, 5 Johns. Ch., 482.) The defendant was entitled to the assignment of the bond and mortgage from, the plaintiff on payment of the sum due him, unless the wife of the mortgagor had some superior equity which should defeat it.


*416The rale seems to be well settled, that if a person undertakes an employment or trust, and begins the performance of it, he is liable for any injuries which may result from his neglect, even though he may not have received any consideration for the promise. If he omit to do what he has thus agreed to accomplish, the failure of consideration excuses his omission. This is called a nonfeasance. If he begin the execution of his engagement and fail to complete, his failure is a misfeasance, and he becomes responsible. (Wilkinson v. Coverdale, 1 Esp., 75; Thorne v. Deas, 4 Johns., 84; Smedes v. Bank of Utica, 20 id., 372.) The distinction thus recognized and applied, rests, doubtless, upon the proposition that an injury to one party or a benefit to another is a sufficient consideration for a promise. (Miller v. Drake, 1 Caines, 45; Foster v. Foster, 6 Mass., 58; Smedes v. Bank of Utica, 20 Johns., 380, supra) In Wilkinson v. Coverdale, the defendant undertook, voluntarily and without consideration, to get a policy of insurance renewed on account of the plaintiff, but did it so negligently that no benefit was derived from it, and the action against him was allowed to proceed. In the case of Thorne v. Deas, a case which was cited and approved in the Court of Errors in Smedes v. Bank of Utica, (supra), the doctrine of misfeasance was considered, and the cases stated and reviewed. It was not questioned that a voluntary undertaking, which the promissor undertook to carry out, entailed upon him the penalty of neglect in the performance of this promise. The rule is founded in common sense, in equity, and in good faith. The defendant was bound by virtue of his engagement, to keep the policy alive, or to notify the plaintiff that he would not, and thns enable her to protect herself against his default. The fact that her husband is living is not a bar to the action. It.affects the measure of damages only. (Hawkins v. Coulthurst, 5 Best & Smith, 343.) There is no force, either, in the proposition that the plaintiff had no interest in the policy because her husband was living. She had an <mask> right to the amount secured by it, which would become absolute upon the death of her husband, and the value of that fight would, doubtless, be the measure of damages.


In the case of the 11 Howard, the action did not concern the separate estate of the defendant’s wife. The object of the action *402was to set aside a conveyance executed by the defendant, the wife having only an <mask> right of dower. In Youngs a. Seeley and wife, the action was brought to set aside a conveyance to her as fraudulent and void. Her husband was united with her, and put in an answer which was not verified by her. It was held that the answer should have been verified by her; that if the deed was valid, the plaintiff had no claim in the premises, and that her right under it would amount to a separate estate, which she would have a right to dispose of, under the statutes of 1848 and 1849, independently of her husband. The statutes of 1848 and 1849 have enlarged the rights of married women in reference to the ownership and possession of real estate ; but, by the usages and laws of the colony and State of Hew York, a married woman could convey her lands, or any interest therein, by deed, although her husband ‘did not join therein. (Albany Fire Insurance Company a. Bay, &c., 4 Cow., 1.) And she was regarded in equity as a feme sole, in reference to her power over her separate estate. Taking into consideration the independent position of a married woman in this State, as to her separate property, there seems to he no reason for adhering to the rule in equity which requires leave of the court to be obtained before a separate answer can be put in by a feme covert, where the action is not based upon any instrument jointly executed by herself and husband, and where, as in this case, she claims an exclusive right to the estate sought to be appropriated to the payment of her husband’s debts. Having the power to hold her separate estate as a feme sole, she should be permitted to defend her title in that capacity, and to enjoy, as other suitors, all the privileges and rights pertaining to courts of justice— not as a favor, but as an absolute right. In one case, in this district, the right of a married woman, sued' in reference to her separate estate, to demur separately without leave of the court, has been decided. (Arnold, &c., a. Ringgold, &c., supra)


RPAPL 1311 (2) requires that every person having a right of dower or an <mask> right of dower in the real property be named a party. The right of dower, of course, was abolished as to all estates in real property acquired after August 31, 1930 (Real Property Law § 189). In effect, the plaintiff, Arbor National Mortgage, Inc., contends that Kathy Goldsmith, by virtue of her claim of an interest in the real property superior to that of the plaintiff mortgagee, is attempting to resurrect the right of dower by asking to intervene in this foreclosure action. Thus plaintiff asserts that a spouse with an inchoate right of equitable distribution is not covered by RPAPL 1311 (2).


In Mygatt v. Washburn (15 N. Y., 316, 319), Dbnio, Oh. J., says: “ The period for ascertaining the names of the taxpaying persons it is thus seen includes the months of May and June, and is limited to those months.” And the same *271learned judge, in the same case, further says (p. 320): “ Evidently, there must be some day in the course of the proceeding in which the assessment may be said to be made. The fixing of this day cannot depend upon the degree of diligence with which assessors perform their duties, for in that case it would be different in different towns. * * * In my opinion, the assessment should be considered as made at the expiration of the time limited for making the inquiry, namely, on the first of July. If there is any change of residence or property after that day, it does not affect the assessment roll. The inquiries are then completed. Any changes which the assessors are authorized to make after that time are such as may be required to correct mistakes. Ho earlier day can be assumed, because what is done by one or all of the assessors prior to the first of July is <mask> and preparatory, arid liable to be altered according to their final judgment in the matter. When the statute speaks of the time £ when the assessment is made ’ it refers to the binding and conclusive act which designates the tax-payers and the amount of taxable property. If I am correct in what has been said, it follows that the time referred to in the statute is the first of July. It cannot be an earlier or a later day without involving incongruities which we cannot suppose that the legislature would have permitted to exist.”


Qn the trial it was established that the decedent in his lifetime and on the 5th day of June, 1869, conveyed certain lands of which he was then the owner in fee simple, to his son Miles M., the father of the plaintiff Francis, and that the value of the same at that time was $1,000. In this conveyance the widow joined releasing her <mask> right of dower in the premises. The defendant Allison called as a witness in his behalf the defendant Lydia, the widow, and offered to prove by her that the conveyance mentioned was executed without consideration, and as a deed of gift and was intended as an advancement to the grantee, Miles M. Oviatt, out of *218the real estate of the ancestor. The plaintiffs objected on the ground that the witness is a party to the action and interested in the event, and the testimony proposed would be in her own interest and against the heirs of Miles M. Oviatt; that the plaintiff Francis Oviatt is a survivor of Thomas V. Oviatt and Miles M. Oviatt, and that the witness is a survivor of Thomas V. Oviatt and a party to this action and is incompetent under the provisions of section 829 of the Code of Civil Procedure.


If the facts touching the ages of the husband and wife, the value of her <mask> right of dower in the lands conveyed to Holt, and the value of the house and lot conveyed to the defendant Juliet Douglas, were before us, we could proceed and pronounce the proper decree upon the facts found by the court below. But they are not, and it becomes necessary to ascertain those facts before a proper judgment can be pronounced.


On the other hand, to accept the defendant’s thesis and proceed to denominate a breach of section 7 to be an offense is, in effect, to hold such breach to be no offense at all; for as suggested above, a statute defining a prohibited act without a covering penalty must fall as <mask> and abortive. (Penal Law, § 2; People v. Freres, 5 A D 2d 868.) However, it would be absurd to assume that twice, the Legislature performed a vain and empty act, namely, first, in passing and then, in amending section 7 with the intent to make it self-defeating by omitting classification of and terms of punishment for a breach thereof, or that the law-making body sought to meet positive conditions at the waterfront with an act of negation, i.e., to warn against loitering and in the same breath to cancel the warning by leaving it unenforcible. Accordingly, were section 7 open to two constructions, one sustaining it and the other destroying it, then the life-preserving sense should obtain (McKinney’s Cons. Laws of N. Y., Book 1, Statutes, § 144; Matthews v. Matthews, 240 N. Y. 28, 34-35).


* And so it has come to be regarded by courts of equity. The <mask> right of the wife to dower in her husband’s property is considered, as it should be, as one entitled to protection. That has been held in general terms in repeated instances. (Mills v. Van Voorhies, 20 N. Y., 412; Mathews v. Duryee, 3 Abb. Ct. Appeals, 220; Simar v. Canaday, 53 N. Y., 298.) In the last case the author*199ities were fully reviewed and the conclusion adopted as the settled law, that “ an inchoate- right of dower in lands is a subsisting and valuable interest, which will be protected and preserved to her, and that she has a right of action to that end.” (Id., 304.) - And, conformably to that conclusion, the courts have protected her against conveyances made before marriage, for the purpose of placing the husband’s property beyond the reach of that right. Its existence is one of the resulting consequences of marriage — a right arising out of its relation. And it is as much a fraud for the husband to place his property out of his hands for the purpose of avoiding it, as it is for a debtor who contemplates the contraction of debt, to voluntarily dispose of that owned by him, in order to defeat the efforts of future creditors to secure their payment. The latter, it has been-held, cannot be successfully accomplished. (Savage v. Murphy, 34 N. Y., 508; Case v. Phelps, 39 id., 164.) And the same principle should maintain the action of the wife to vindicate herself against the success of a similar device. It has been applied in that manner in several instances, and expressly sanctioned in others. (Smith v. Smith, 2 Halst. [N. J. Chy. R.], 515 ; Cranson v. Cranson, 4 Mich., 230; Swaine v. Perine, 5 Johns. Ch., 482; Thayer v. Thayer, 14 Vermont, 101.) In the last of these cases the authorities were fully collected and reviewed; and it was held, as the wife during the treaty for marriage, would not be permitted, without the knowledge of the person intended to become her husband, to make a voluntary disposition of her property to defeat his marital rights, that the husband should be subjected to the same disability; and, accordingly, such a disposition of his property was not allowed to stand. This case is important, and entitled to great weight in disposing of the one now before* the court. Substantially to the same effect, also, was the decision in Petty v. Petty (4 B. Monroe, 215). And they are not in conflict with Holmes v. Holmes (3 Paige, 363), which related only to the disposition of personal property, in which the wife can have no such interest as she has in her husband’s real estate.


In my opinion, rent, not accrued, is not an incumbrance ; and does not fall within the effect of the covenant referred to. Rent, before it is due and payable, is not a debt, essentially and certainly, as between landlord and tenant. It is unlike the usual cases of money payable on a precedent condition. For the purpose of illustrating this point of view, it may be likened to the <mask> right of dower which is not determinately an incumbrance until assigned and fixed. I, of course, here refer to executed contracts ; wherein the grantee has no right of action until actual breach, and when he, as it were, becomes subrogated to the claim of the incumbrancer and he enforces it in *200the way of indemnity through the obligation of the covenant. As to executory contract, when the land is subject to liens, the doctrine, as we have seen, appears to be different (See Jones v. Gardner, already cited). Besides, rent, by an actual or constructive eviction, might be defeated; or by the death of the owner go to the heir at law, and not to the personal representatives. It even when due does not become a lien, in any accurate sense of that word, upon the land or the demised interest. Landlords, to be sure, can evict the tenant, can forfeit the lease, because of non-payment of rent in arear ; but this is an incident' peculiar to the very relation of landlord and tenant; and not because rent in arrear is an incumbrance or lien. Eviction is an ouster, by the paramount title reviving by condition of forfeiture ; and hence it is that an assignee of a leasehold can pay the arrear-rent to protect his right of tenancy, and thereby become subrogated to the personal claim of the landlord.


It is contended on behalf of the children, however, that the Legislature, by the changes in the Decedent Estate Law which became effective on September 1, 1930, in effect abolished the right of dower, or at least altered the presumption in its favor which had previously existed. That it possessed the power to make such alteration in the rights of a wife in so far as the right of dower was <mask> seems incontrovertible. As was pointed out by the Supreme Court of the United States in Randall v. Kreiger (23 Wall. 137, at p. 148): “ During the life' of the husband the right is a mere expectancy or possibility. In that condition of things, the lawmaking power may deal with it as may be deemed proper. It is not a natural right. It is wholly given by law, and the power that gave it may increase, diminish, or otherwise alter it, or wholly take it away. It is upon the same footing with the expectancy of heirs, apparent or presumptive before the death of the ancestor.” (See, also, Scaife v. McKee, 298 Penn. St. 33, 38; appeal dismissed, 281 U. S. 771; Moore v. Mayor, etc., of City of N. Y., 8 N. Y. 110, 113; Rumsey v. Sullivan, 166 App. Div. 246, 247; Jackson v. Edwards, 22 Wend. 498, 519; Boyd v. Harrison, 36 Ala. 533; Hamblin v. Marchant, 103 Kan. 508; Noel v. Ewing, 9 Ind. 37; Magee v. Young, 40 Miss. 164; Chouteau v. Missouri P. R. Co., *763122 Mo. 375; Thornburg v. Thornburg, 18 W. Va. 522; Wooton v. Keaton, 168 Ark. 981; Ruby v. Ruby, [W. Va.] 163 S. E. 717; Starr v. Pease, 8 Conn. 541; McNeer v. McNeer, 142 Ill. 388; Barbour v. Barbour, 46 Me. 9; Ligare v. Semple, 32 Mich. 438.)


*383On the basis of the holding and reasoning in these cases, I am of the opinion that the State’s common-law right of priority is in the nature of an equitable or <mask> lien, which can be defeated by a lien arising in favor of a third party and perfected prior to the assertion or enforcement of the priority of the State. I am of the view, further, that by the docketing of her judgment and the issuance of an execution and by the levy consequent thereon, the petitioner had perfected her lien prior to the State taking action to enforce or assert its lien. (See Davis and Warshow v. S. Iser, Inc., 30 Misc 2d 528, 533-535.)


With that claim disposed of, it is necessary to consider the disposition of the proceeds as between the public administrator, representing the estate of the husband, and the ancillary administrator of the father’s estate. The public administrator relies on the provision of the policy reciting that “ in the case of death of any individual named as beneficiary, the interest of such beneficiary *49shall vest in the employee by whom he was designated.” At most, the beneficiary had a contingent interest which lapsed on her death and the death of the insured in the common disaster. (Dunn v. New Amsterdam Casualty Co., supra; Matter of Hammer, supra.) The beneficiary never had any property right in the proceeds, and if her <mask> interests as presumptive beneficiary can be said to have vested in the assured there could not be acquired by the transfer any greater property right in the proceeds than the beneficiary herself had. The plain intendment of the applicable terms of the policy is that if the named beneficiary did not take, the proceeds were payable to the next of kin of the assured, who in this case was the father.