Leach v. Leach

69 N.J. Eq. 620 | New York Court of Chancery | 1905

Emery, Y. C.

On the bill and cross-bill in this ease, husband and wife contested the ownership of lands to which the wife held the legal title by deed subsequent to the marriage. At the hearing I decided that the lands belonged to the wife. The lands comprised two .lots, and pending the suit one of the lots was sold in foreclosure proceedings on a mortgage given by both husband and-wife, and the surplus after paying the .mortgage, being about $550, has been paid into court. The husband now contests the immediate payment of any portion of this money to the wife. The marriage took place in 1878, and issue was born, a daughter, who is still living. Under the decisions declaring the effect-of our statutes relating to the real estate of married women, the respective interests of the husband and wife in the land sold, and its proceeds, are as follows: The wife has an estate for hex-life in the lands, with remainder to the husband for his life, if he survive the wife, and with remainder over to the wife in fee. Ross v. Adams, 28 N. J. Law (4 Dutch.) 160, 179 (Supreme Court, 1859); Doremus v. City of Paterson, supra, p. 188 (Vice-Chancellor Stevens, 1904). The latter case reviews all the previous cases and shows the present status very clearly. Under the Chancery act (P. L. 1902 p. 531 § 60), when money is jxaid into court on foreclosure proceedings, the owner of aixy estate for life may apply for the payment of a gross sum iix lieu of the estate, and the court “shall direct the payment of such gross sum as shall be deemed a just and reasoxxable satisfaction for such estate for life, and which-the person exxtitled shall consent in writing to accept in lieu thereof.” The section further provides that if xxo consexxt be given, the court is to determine the proper sum to be invested for the benefit of the person exxtitled to the life estate, and direct its investment. . In this case the wife applies for the immediate payxxxent to her of all the money to which she is entitled, but the husband does not consent to the payment of any of the money to the wife, or to take any gross sum in lieu of his interest. As to the payment to the wife of a gross sum in lieu of her life estate, the statute does not require the consent of the persons interested in remainder, and this amount may be calculated according to the usual rules and paid to the wife. The balance must be invested during the lives of the husband axxd wife, for the benefit of the wife during their joint lives, axxd for the further benefit of the husband during his life, if he survive the wife. On the death of the husband during the wife’s life, she will be entitled to the principal sum invested. The wife’s formal consent in writing required by the statute must be filed.