¶1I dissent upon the ground that the plaintiff has an inchoate right of dower in the producing oil and gas wells, and that she is entitled to have that right adjusted and protected by a court of equity. The husband can no longer be regarded as representing his wife or protecting her rights therein. He has parted with his title, deserted his wife and refuses to support her.
¶2The principal value of the lands is the oil and gas. For farming purposes the land is worth not to exceed $10,000, while the oil and gas exceeds in value $100,000.
¶3I think it clear that if the wife should survive her husband she would be entitled to dower in the producing oil and gas wells. It was early decided that a widow is entitled to be endowed of mines opened and worked in the lifetime of her husband. (Coates v. Cheever, 1 Cow. 460.) While the inchoate right of dower is not an estate in lands, it is a substantial interest and highly favored in equity, and whenever the right has been threatened by destruction or impairment, the courts have protected it. (Matter of Brooklyn Bridge, *25175 Hun, 558; affd., 143 N. Y. 640; Clifford v. Kampfe, 147 id. 383, affg. 84 Hun, 393.)
¶4Upon reargument, interlocutory judgment affirmed, with costs, with leave to the plaintiff to plead over within twenty days upon payment of the costs of the demurrer and of this appeal.