92 N.Y. 235 | NY | 1883
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *237 The parties intended by an ante-nuptial contract to avoid the effect of marriage upon their property relations, and this contract, however invalid at common law, remained in full force after marriage. (Laws of 1849, chap. 375, § 3.) Its purpose is very plain. There is first a promise that the woman shall retain as her own such property as she has when married, or which she might acquire or become entitled to after marriage, with full power of disposition. As to all that, she was to remain, as it were, a single woman. Next she agrees, if after marriage the man dies first, to accept the sum of $1,500 "in full satisfaction of her dower in his estate, and thereby be precluded from claiming the same either in his real or personal estate." On his part is a covenant to provide by will for the payment of this sum to her with interest from the day of his decease "in lieu of dower or her rights as widow in his estate," and if he fails to make such provision, that amount is to be paid to her from his estate "by those who shall administer" it.
While there is some difference in the phraseology of the covenants, the meaning is the same, and each expresses an intent that she shall take nothing as widow from his estate either as dower or any other interest given by law. Both parties were bound by this agreement, and on the part of the husband and his representatives it has been fully performed.
The question was within the jurisdiction of the surrogate and his authority "to direct and control the conduct * * * of executors" (Code, § 2472, subd. 3), and "to administer justice *239 in all matters relating to the affairs of decedents according to the provisions of the statutes relating thereto" (Code, § 2472, subd. 6), but we think he erred in holding that the plaintiff might take the specific articles given by statute to the widow of the deceased. Although not to be appraised, they were still part of his estate, and she was, by her agreement, estopped from claiming them. How this matter would be affected by the existence of minor children, or others interested, it is not necessary to determine.
It follows that the decree of the surrogate was properly vacated, and the judgment of the Supreme Court should be affirmed, with costs.
All concur.
Judgment affirmed.
