104 Misc. 73 | N.Y. App. Term. | 1918
The plaintiff herein sued the defendant to recover the sum of $355.20 which the defendant’s deceased wife owed to the plaintiff before her death. The complaint sufficiently sets forth a cause of action against the deceased wife or her estate and contains an allegation that the defendant’s wife died intestate, and that her husband, the defendant herein, has not applied for and has not taken out any letters of administration on the estate of his deceased wife. The case was called for trial. The defendant admitted all the allegations of the complaint and moved for a dismissal of the complaint, and the trial justice granted his motion.
Section 103 of the Decedent Estate Law provides: “ If a surviving husband does not take out letters of administration on the estate of his deceased wife, he is presumed to have assets in his hands sufficient to satisfy her debts, and is liable therefor. A husband is liable as administrator for the debts of his wife only to the extent of the assets received by him. If he dies leaving any assets of his wife unadministered, except as otherwise provided by law, they pass to his executors
Since it is conceded that the defendant did not take out letters of administration on the estate of his wife, although under section 2588 of the Code he was entitled to the administration of his wife’s estate, he is presumed to have assets in his hands to satisfy her debts, and he is, therefore, liable under the Decedent Estate Law to this plaintiff for the amount of her indebtedness. Apparently, however, the trial judge dismissed the complaint, not because the plaintiff had failed to show that the defendant was liable, but solely on the ground that an action against a surviving husband for an indebtedness incurred by his wife is an action in equity and not at law, and the Municipal Court has no jurisdiction in such an action. "While we have not been referred to any direct authority upon this point, it would seem quite clear that the trial judge is in error in regard to the nature of the action. The defendant claims that in the case of Herzog v. Marx, 58 Misc. Rep. 356, the court decided that an action, brought under section 1837 of the Code against the next of kin or legatees of a deceased for a money judgment to be apportioned among the defendants in proportion to the legacies or distributive shares received by them from the estate of the decedent, is an action in equity and that since this same section of the Code provides that an action may be maintained for such relief not only against the next of kin or legatees of a' deceased, but also against .the surviving husband or wife of a decedent for the same relief, this case is authority for the view that the present action brought against a surviving husband is not an action at law but an action in equity. This contention of the defendant seems to me to be without foundation. The pres
At common law “ the husband was liable for the wife’s debts during marriage, whether he received any property by her or not, but this liability ceased at her death, although he may have received property,' for the reason that such property became absolutely his by marriage and when that relationship terminated he was under no legal obligation to appropriate his own property to the payment of her debts.” As to choses in action not reduced to possession during marriage, if the wife survive the husband they go to her and upon her death to her representatives, but if the husband survive he has the sole fight to administer for his own benefit and enjoyment in preference to the next of kin. Barnes v. Underwood, 47 N. Y. 351. ‘ ‘ The deceased wife’s unreduced choses in action remaining in the husband’s hands as administrator jure mariti are liable, however, to their full amount, for the wife’s antenuptial debts, and may be reached by her creditors.” 21 Cyc. 1213. The statutes of 1848 and 1849 have in many respects changed the common-law rights of the husband to the estate of his wife. The title to a woman’s property no longer becomes vested in the husband at the time of the marriage, nor has he any right to reduce her choses in action to his own possession. She has been given by statute the right to bequeath her property as if she were a feme sole, and if she dies intestate leaving descendants her surviving
Judgment should, therefore, be reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.
Pendleton and Finch, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.