33 Barb. 264 | N.Y. Sup. Ct. | 1860
By the Court,
The plaintiff is the administrator, &c. of Elizabeth Eider, appointed by the surrogate of the county of Suffolk, by letters dated the 9th of April, 1858. She died in December, 1856, and at the time of her death, and for many years previous thereto, she was his wife. On the 17th of November, 1856, she made and published her last will and testament in due form of law, and therein gave and bequeathed the notes and choses in action which are the subject of the controversy in this action, together with all her other property, to the defendant, who was her niece. The will was duly proved and admitted to probate, and letters of administration with the will annexed were issued by the surrogate of the county of Suffolk, to Lavinia Hulse, the defendant, dated July 20, 1857. She thereupon took possession of the promissory notes and choses in action to which I have referred, claiming tó hold them as owner and legatee, under the bequest, and by virtue of the letters of administration with the will annexed. The plaintiff
The plaintiff and the defendant claim the property in the notes from the deceased Elizabeth Eider. And both assume that they once belonged to her. It would seem, therefore, that her power to make a testamentary disposition of it, so as to take away the marital rights of her husband, depends upon the character and quality of the estate; and whether it was her separate estate before the acts of 1848 and 1849 took effect, or her separate estate acquired subsequent to 1848 and under the provisions of those acts. In the case of Westervelt v. Gregg, (2 Kern. 209,) Judge Denio enumerates very briefly the rights of the husband to the chose in action of the wife, at the time the act of 1848 for the more effectual protection of the property of married women took effect, in the following words: “ He was entitled to prosecute for it, and when recovered to take the money to his own'use. He had a right to assign it for a valuable consideration, and such assignment, would vest it in the assignee, and would cut off the wife’s right to it in the event of her surviving him, and he might also release and discharge it. These rights were, however, subject to the jurisdiction of the courts to compel him to make a suitable provision for her, under the head of what is called the wife’s equity. In the event of her dying before him, and before he had recovered the money, it would belong to him absolutely, and should he afterwards die leaving the money uncollected, his executor or administrator would'be entitled to collect it without taking out administration on her estate. But should he die, leaving her
The plaintiff, James Eider, and the deceased, Elizabeth, intermarried about the year 1831, and lived together as husband and wife until the period of her death, at Brookhaven in the county of Suffolk. They had no children. He was a ship-carpenter, hy profession and employment, and was from home, engaged in this occupation, about two thirds of the time. He was the owner of a small farm upon which they both resided, she managing the farm in his absence, selling some portions pf the produce and receiving the money therefor. At the time of the intermarriage she had a small sum of money, her own property, the amount of which does not appear. • She also received from the estate of her deceased mother, Elizabeth Terry, $180 or $80, the executor could not tell which. This was prior to 1848. These moneys she loaned out upon notes, in divers sums and to divers persons, taking the notes payable, with the interest, in her own name. And as often as the notes were paid, the money, with the accumulations of interest, was reloaned to others, upon promissory notes payable in the same manner. At the time of her death, the notes were 18 in number, given for sums ranging from $30 to $250, dated at various times from April-22,1843, to September 15, 1856, inclusive. The testimony and the. pleadings leave no doubt that the property in dispute proceeded from,these several sums of money with the accumulation of interest thereon. They lack the qualities of the separate estate of a married woman. The money which she had at the time of the marriage and that which she inherited and received from the 'estate of her mother,-with the interest which accrued thereon, was subject to the marital rights of the husband. He could
The property which a married woman may take and hold as her separate estate, under the acts of 1848 and 1849, must be acquired by inheritance, gift, grant, devise or bequest from some person other than her husband. The fruits of her own labor or the profits or income of any business in which she may have embarked do not fall within the meaning of the acts. So, also, with regard to the interest upon moneys due to her or held by her at the time the acts took effect, notwithstanding such interest may have accrued after that time. It must follow the course of the principal from which it proceeds and be subject to the marital rights of the husband. The effect of these statutes upon rights which had vested at the time they became operative, has been the subject of judicial determination in the case of Westervelt v. Gregg, (supra.) Some of the judges thought it impossible to construe the second section so as to limit its provisions to property to he acquired by a wife then unmarried, after its passage. And they thought its true meaning to be that all property which she owned at the time of the marriage, and such as she had acquired by gift, devise, or otherwise during coverture, but before the passage of the act, should thereafter be deemed vested in her as though she was a feme sole, to the exclusion of the title of the husband acquired by virtue of the marriage relation. But the court held that the legislature had no
Lott, Emott and Brown, Justices.]
The judgment of the special term should be affirmed with costs.