38 A.D. 394 | N.Y. App. Div. | 1899
The action is in ejectment to recover land in Queens county. In 1877 one Jacob Story was the owner in fee of the premises in controversy. He and his wife Huldah had separated. At this time an .indenture under seal was executed between Jacob Story, his wife Huldah and one James B. Raynor. The indenture recites the existence of a difference between Story and his wife, and their mutual ■agreement to live apart. It then recites that, in consideration of the premises and of the sum of one dollar’, and for the purpose of providing for the support and maintenance of the wife, the party of the first part (the husband) has and does grant and convey unto the' party of the third part (the trustee Raynor), and to his successors and assigns forever, a certain lot of land in the town of Hempstead in trust, to collect the rents and after defraying the necessary ■expenses to pay over the balance to the party of the second part ■(the wife Huldah) during her natural life, and upon the death of the party of the second part, to convey the premises to the party of the first part if he be living, or if he shall die before his wife then to convey the same to the heirs at law of the party of the first part. By the instrument the trustee covenants to indemnify and save harmless the husband from any liability on account of the wife’s support. Some years afterwards the parties became reconciled and lived together until the death of Jacob in June, 1888: He left a will by which he devised all his property to his' widow. The widow ■■survived until October, 1897. In July, 1896, Huldah leased the premises to the defendant for the term of ten years, and defendant •entered into possession under such lease. At times, Story and his wife lived on the trust- property, and during the major part of the time Huldah seems to have managed it and collected the rents herself. After the death of Huldah the trustee executed a convey.ance to the plaintiffs, who were the only heirs at law of Jacob ■Story. They instituted this action to recover from the defendant possession of the demised premises. The trial court decided in favor of the defendant, and from the judgment entered on that ‘decision this appeal is taken.
The ground on which the learned judge below based his decision
While the indenture in this case recites as the object of the con-, veyance the support of the wife, nevertheless it is a present conveyance which not only vested rights in the wife, but also in the heirs-of the grantor in case the husband should predecease the wife. In-fact this may be termed a separation settlement, and similar in its-legal aspects to a marriage settlement. The effect of a divorce on property rights under a marriage settlement seems well settled in this country by the authorities. If on a settlement money is payable to the wife during coverture, divorce determines the obligation to pay-; but not so if the installments' are payable to the wife during life. (2 Bish. Mar., Div. & Sep. §§ 1655,1656.) In Babcock v. Smith. (39 Mass. 61) the plaintiff, in contemplation of marriage with the defendant, conveyed her estate, real and personal, to trustees in trust (1) to apply the income to her separate use-during the life of
The judgment should be reversed and a new trial granted, costs to abide the event.
All concurred.
Judgment reversed and new trial granted, costs to abide the event.