1 N.Y.S. 897 | N.Y. Sup. Ct. | 1888
Lead Opinion
The case shows that the defendant William Vanderveer
and his wife, Lucy Vanderveer, settled a dispute between themselves by an agreement, under which certain premises were to be conveyed to the husband, and a lot known as “Ho. 6, Wyckoff tract, Coney Island,” should go to the wife. Title was made to the wife by transfer from husband and wife to one Devlin, and by Devlin and wife to the wife. The wife had six children by -the defendant William Vanderveer, but the case does not show whether all were born before she acquired title to lot Ho. 6. The appellants’ points assume such to be the fact, The case does not show that Lucy Vanderveer left a will. The fact is set up in the answer, and a copy is set forth, but it does not appear to have been proven, and it is not found. The only question pre
There is nothing in the effect of the settlement which destroys the husband’s estate. The deed from husband and wife to Devlin, and from Devlin and wife to the wife, contain no words which go beyond the .transfer of the estate as it was when the deeds were given. There is not a word in any of the conveyances which authorizes a presumption that the effect of the transaction was intended to be more than a division of property, with the rights and possible rights of each in the land of the other. The wife still had an inchoate right of dower in the husband’s pieces; and although the husband had no legal right in her portion, he could subsequently acquire a title therein as tenant by the curtesy. There should be plain words to bar a possibility of a future inheritance in the wife’s lands, because since the married woman’s acts this tenancy does not exist in her life. She may convey the land free from it and she may convey the land by will. If she does neither, the husband'’s life-estate becomes operative. The judgment should therefore be affirmed, with costs.
The order for an extra allowance is proper. The value of the land is over $80,000, and the rent some $8,000 a year. Although the case took little time in the actual trial, the question involved an extended examination of the law in respect to a vexed question. The order should- also be affirmed, with •costs.
Concurrence Opinion
(concurring.) It must be considered as well settled that tenancy by curtesy is not abolished. And we do not find that the conveyances proved in this case contain any estoppel against the defendant William Vanderveer in respect to such estate. As pointed out in the opinion at special term, he did not cut off such estate by his conveyance to Devlin; the estate did not at that time exist. It did not come into being till the death of the wife, the owner of the fee. The husband has neither conveyed it nor agreed so to do. It follows that the cause was well decided.
