17 N.J. Eq. 407 | N.J. Super. Ct. App. Div. | 1864
The administratrix having caused to be made and filed in the office of the surrogate of the county of Mercer, an inventory and appraisement of the estate of the intestate, exceptions thereto were filed by the intestate’s next of kin. The cause was heard before the Orphans Court,' under the provisions of the statute, (Nix. Dig. 579, § 16,) and the exceptions dismissed with costs. From that decree the exceptants have appealed.
The first exception to the inventory is, that the persons who assisted the administratrix in making the inventory and appraisement, had no authority to act as appraisers, not having been appointed and sworn by the surrogate. The second exception is, that one of the appraisers appointed by the surrogate to inventory and appraise the goods selected by the widow for the use of the family, made such inventory without having seen the goods so inventoried and appraised, and without knowing anything of their value.
It is not questioned that the original inventory and appraisement were made in compliance with the provisions of the tenth section of the act of 1846, (Nix. Dig. 277,) and in accordance with immemorial and approved practice, prior to the act of 1851. The inquiry is, to what extent the ancient law and practice are affected by recent legislation. The provisions of the act of March 14th, 1851, (Nix. Dig. 269,) in no wise interfered with the ’duties of executors or administrators, prescribed by the act concerning executors. The statutes were not only upon different subjects, but the design and office of the inventory and appraisement prescribed by the fourth section of the act of 1851, were totally different from those of the inventory and appraisement required by the tenth section of the act concerning executors, (Nix. Dig. 277.)
But the scope of the act of 25th February, 1856, (Nix. Dig. 273), is much more extensive. It was evidently designed to embrace the provisions of two different statutes upon totally different subjects. The inventory and appraisement prescribed by the act appear to have been designed to perform a double office, and to operate as a substitute, not
It appears to me to be clear that the acts of 1856 and 1860, though both supplements to the act respecting executions, and primarily designed for the purpose of protecting the debtor’s property against the claims of creditors, have not only indirectly changed, in a material degree, the statutes respecting the distribution of the estates of intestates, but that they have chapged also the character of the inventory to be exhibited by the administrator, in all cases where the intestate dies, leaving a iyife or child entitled to the benefit of the provisions of those statutes. The inventory of the estate in all
The third exception to the inventory, and one more materially affecting the rights of the parties, is that the inventory exhibited is not a true and perfect inventory of the estate of the intestate, for that divers goods, chattels, and credits, in the exception particularly specified, were pot inventoried and appraised.
The evidence shows that at the date of the appraisement, there was in possession of the administratrix, a promissory note, given by one Nathaniel Hart to the deceased, for $250, which was not inoluded in the inventory. It is claimed by the administratrix that the note was given for the purchase of a pair of horses which belonged to the wife, which were sold by the intestate to Hart, and the note taken in his own-name. The evidence of the ownership of the wife consists exclusively, of repeated declarations made by the husband to different persons, that the horses belonged to the wife, that he uniformly spoke of them as her horses, that they were procured by the intestate in exchange for another horse which
Gifts of chattels by the husband to the wife are void at law, though they may be sustained in equity. 1 Williams on Ex’rs 639; Washburn v. Hale, 10 Pick. 433; 1 Roper on Husb. & Wife 53 ; 2 Ibid. 152.
But, even in equity, where a widow seeks to establish a gift from her husband in his lifetime, she must adduce evidence beyond suspicion, and nothing less will do than a clear irrevocable gift, either to some person as trustee, or by some clear and distinct act of his by which he divested himself of the property and engaged to hold it as trustee for the separate use of his wife. Walter v. Hodge, 2 Swanst. 97; McLean v. Longlands, 5 Vesey 79 ; 1 Williams on Ex’rs 640; Mews v. Mews, 15 Beav. 529. And to constitute a perfect gift, the donor must part with the possession and dominion of the property. And if the thing given be a chose in action, the law requires an assignment or some equivalent instrument, and the transfer must be actually executed. 2 Kent’s Com. 439.
The act for the better securing the property of married women, confers no power on the wife to take real or personal property directly by gift from her husbapd. Her inability at the common law to take property by such gift or grant, results from the nature of the marriage relation. The design of the statute was not to disturb the nature of that relation, further than to enable her to receive and hold real and personal property to her sole and separate use, so as not to be subject to the control, nor liable to the debts of her husband. It was not designed to confer upon her the power of acquiring her husband’s property, but to protect her own. Nor was it designed to confer upop married women the power of
There is no evidence in the cause sufficient to divest the property of the husband in the goods in question or to establish the title of the wife. The wagon and other chattels remained in the possession of the husband during his life, and at the time of his death. He exercised, so far as appears-, absolute control over it. He sold the horses and took the note received in payment, in his own name. Hone of the property is shown to have been purchased or procured by means of the separate property of the wife. The property should have been included in the inventory, and the exception on this ground should have been sustained, even if the inventory had been in other respects valid.
The decree of the Orphans Court must be reversed, and the inventory and appraisement, to which exceptions have been filed, declared illegal, inoperative, and void. The ex-ceptants are entitled to their costs in the court below, but not in this court. The original papers which have been sent up, are remitted with the cause to the Orphans Court.