16 N.J. Eq. 512 | N.J. Super. Ct. App. Div. | 1863
The administrator of Enoch J. Vreeland, upon the settlement of his accounts in the Orphans Court, among other items for which he claimed credit, prayed allowance for $2000, “amount received by Sophia Vreeland (widow of the intestate), by bequest from her father during coverture with the intestate, and which, at his death, remained in his possession.” Exceptions filed to the account by the next of kin of ■ the intestate, were by the decree of the court overruled, and the account was allowed as audited and stated by the surrogate. Prom this decree the exceptants appealed.
The material question in the cause is, whether the sum of $2000, which formed the subject of exception, was in fact the property' of the widow, or whether it belonged to the estate of her husband. It is admitted that the sum of $2000 came to Mrs. Vreeland during her coverture, in the year. 1855, from the estates of her father and mother, and that it passed into her husband’s hands and was inventoried. Her mother died about the year 1850, seized of certain real estate.' Her father, Abraham L. Ackerman, died on the 9th of April, 1855, intestate, whereupon his children became each entitled to a share of his estate, as well as of the estate of .the mother. In December, 1855, Lawrence and Abra
The husband, it is true, by virtue of his marital rights, acquired a qualified right to the property. He had the right, during the joint lives of himself and wife, to collect the money and appropriate it to his own use. If he survived the wife, it was his. But if the husband died without re
But the right of the husband to the wife’s choses in action, as well as to her other property, real and personal, was extinguished! by the act of 1852. The' bond in question, accepted by the wife in lieu of the specific personal and real property which she took by inheritance, remained absolutely hers as if she were a single female, and was not subject to the disposal of her husband. How has her title to that property become extinguished ? How has the husband acquired title to it? It must be borne in mind that she had both the legal and equitable title to the bond, and to the proceeds of it. She never assigned it to the husband. If she had done so, the assignment would have been inoperative and void at law. She can make no valid contract with any one, much less with her husband, for the transfer of her legal rights. But it is insisted that the facts, that the bond at its maturity was paid to the husband, and was subsequently invested by the husband in his own name, without objection on the part of the wife, and the interest received by him, are plenary evidence of the transfer of the property from the wife to the husband, and of the determination of her interest. That undoubtedly would have been the effect of the collection of the money by the husband, with or without the wife’s consent, prior to the enabling act of 1852. But since the passage of that act, she takes and holds the property as a single female. If, as a single female, she had permitted a third person, or if, as a wife, she had permitted a person other than her husband, to receive and collect her moneys, and invest them in his own name, it would have afforded no evidence of the renunciation of her right, or of his ownership of the property. He would be regarded, both at law and in equity, as her agent or trustee. The reduction of the choses in action into possession by the husband, without the consent of the wife, cannot change the title of the property. If by marriage settlement, the estate of the wife be secured
The reduction into possession is, in all such cases, prima facie evidence of conversion to his use. He is exercising a right which the law gives him over his wife’s dioses in action'. But under the enabling act of 1852, the husband has no such right over the dioses in action of his wife. The absolute interest is in the wife. A conversion of them by the hus1 band to his own use, is a violation of that right. The law, therefore, will not presume, that from the mere reduction of the wife’s dioses in action into possession, he intended to convert them to his own use, in violation of the rights of the wile. Nor will the wife’s assent to the reduction by the husband of her diosos in action into possession, for the mere purpose of re-investment, be evidence of her assent to its conversion to the use of the husband. There is in the case no evidence of the intention of the husband to convert the property to his use, or of the assent of the wife to such conversion, other than the mere fact that the money due on the bond having been paid to the wife, was permitted to be invested and re-invested by the husband in his own name, and that the interest was collected by him. These circumstances, in themselves, are not evidence of the conversion of the wife’s property to the use of the husband. But the right of the wife does not rest upon this evidence alone. It is shown that an application for a loan of money having been made to the husband shortly before his death, he told the appli-' cant that his wife had $2000, and he would see what she had ' to say about it. And he subsequently stated that his wife' had given her consent, and thereupon made the loan. Now it must be admitted that this evidence is utterly inadequate
Nor is the case materially altered by the fact, that the husband is permitted to take and use the interest of the money while it remains in his hands. That may be done for the joint benefit and support of the husband and wife, while they live together. In fact, the nature of the relation is such, that while it continues, neither can ordinarily have a sole and exclusive enjoyment of their individual property. If the wife’s property consists of lands, and she lives upon it, the husband may enjoy it jointly with her. If of chattels in her possession, the husband may use them. The legal relation of husband and wife is so intimate, that it necessarily involves, to some extent, a common use of their individual property. It was not intended that the statute for the better securing the property of the wife, should impair the intimacy and unity of the marriage relation. Walker v. Reamy, 12 Casey 414; Naylor v. Field, 5 Dutcher 292.
It is clear that the intervention of no trustee is essential to protect the legal rights of the wife. That is the necessary result of the enabling act of 1852. Her property is protected in her own hands, as well against the claim of the husband, as against strangers. She may receive and hold property in her own name, as if she were a feme sole. But though she may hold, she cannot manage the property without the intervention of an agent. She can make no valid contract in regard to it, nor can she enforce its collection, without the intervention of her husband.
Admitting that the funds of the wife may lawfully be en
It is worthy of notice in this connection, that the enabling statutes of the state of Hew York confer upon married women, powers in regard to the disposition and management of their estates, not conferred by the laws of this state. The statute of 1848, as amended by that of 1849, enables a married female not only to take and hold her property to her separate use, but also to convey and devise real and personal property, and any interest therein, in the same manner and with like effect as if she were a feme sole. And by the act of 1860, it is enacted that her sole and separate property may be used, collected, and invested by her in her own name.
In the case now under consideration, the question as to the title of the property, is exclusively between the wife and the estate of the husband. The question is embarrassed by no
It was urged upon the argument, that the second section of the act of 1852 relates only to the property in existence when the act was passed. I have never understood that this was the true construction of the statute. A directly contrary interpretation has been adopted, both in this state and the state of New York, where, with the exception of the last clause, the language of the section is identical.
It is the settled rule of construction in New York, that the second section of the act has no application to property which a wife, married before the act took effect, had at the time of the marriage, or had already acquired during coverture, but that it applies to after acquired property of females, married prior to the act. Snyder v. Snyder, 3 Barb. 621; Holmes v. Holmes, 4 Barb. 295; White v. White, 5 Barb. 474; Hurd v. Cass, 9 Barb. 366; Perkins v. Cottrell, 15 Barb. 446; Smith v. Colvin, 17 Barb. 157; Watson v. Bonney, 2 Sandf. S. C. R. 405; Kelly v. McCarthy, 3 Bradf. 7.
In the case of Ex’r of Henry v. Dilley, 1 Dutcher 302, it was held that the act operated as a protection of the rights of property of the wife, existing at the time the act took effect. But it was not decided in that case, nor was it intended to be decided, that the act related only to subsisting rights. The question was, whether the second section of the act was designed at all to affect subsisting rights, and if it was so intended, whether it was not an unauthorized interference with the vested interest of the husband in the property of the wife. Admitting the decision in that case to have been correct, it does not support the position, that the section relates only to the property in existence when the law went into operation, hior does the case of Vannote v. Downey, 4 Dutcher 219, nor any other reported case which has been referred to, sustain the doctrine contended for.
It is further urged that this claim is disputed, and therefore, is not the proper subject of adjudication in the Orphans Court; that the exception should have been allowed, and the widow compelled to resort to the ordinary tribunals of law or equity for the recovery of her claim. Our statute has conferred no authority upon the Orphans Court to try disputed claims, except in the case of insolvent estates. In such case, either the executor or administrator, or any person interested, may file exceptions against the claim of any creditor, and the court are to hear the proofs, and decree and determine in regard to the validity of the claims. In all other cases it is a settled principle, that the Orphans Court is not the proper tribunal for the trial of disputed claims. But by a disputed claim here, is meant a claim which is disputed by the executor or administrator, not a claim which the legatee or next of kin may deem unfounded or unjust.
If the executor or administrator disputes the claim, or re
But if the executor of administrator admit the claim and pray allowance for it in his account, it is not a disputed claim within the meaning of the rule, and falls properly within the jurisdiction of the Orphans Court. The administrator is the legal representative of the estate, and as a general rule, he may, at his discretion, and without the assent of those interested in the estate, pay or compromise any claim against it, even though barred by the statute of limitations. Claims against the estate paid by the executor or administrator, constitute properly a part of his account. If the claims are illegal or unfounded, the charges in the account are open to exception, and thus the question is brought within the jurisdiction of the Orphans Court.
It is further insisted that the claim was not in fact paid, and that it was not a proper charge against the estate by the administrator, until it was paid by him. The mere fact that a debt or legacy has not been actually paid, constitutes no objection to its allowance upon the settlement of the account, if its existence is clearly established* Accounts are thus frequently settled, where the legatee or creditor is absent, or not in a situation to receive payment. By the settlement, the executor or administrator becomes liable for the amount thus allowed. No prejudice is occasioned to those interested in the estate. But it is urged that the administrator is, or may be, unwilling to assume the responsibility of paying the claim, but by collusion with the claimant, claims allowance for the debt, in order thus to withdraw the cognizance of the question from the ordinary tribunals of law or equity. There is, to my mind, much force in the objection. And had this
And as the claim has manifestly been made in good faith on the part of the widow, as there is no reason for suspecting the existence of collusion, or a want of good faith on the part of the administrator, as there has been a full and fair hearing and decision upon the merits, I do not feel justified in now turning the parties around, and permitting the appellants to try the experiment of obtaining a different decision in another tribunal.
Exceptions were also taken to two small items of the account, being respectively for $11.81 and $55.08, for which
It is a fundamental principle, that the administrator is accountable for all property of the deceased which came to his hands to be administered. He cannot be relieved from this accountability on the ground of loss, where the loss was occasioned by any default of his own.
It is a well settled rule, both in England and in this state, that if executors, administrators, or other trustees, loan money without due security, they are liable in case of loss. Loans made on private or personal security, are at the risk of the trustees, who are personally answerable if the security prove defective. To afford complete indemnity to the trustee against the hazard of responsibility for loss, the investment must be made in government stocks, or upon adequate real security. Gray v. Fox, Saxton 259; 2 Williams on Ex’rs 1539, 1541.
Sales by executors and administrators, both of real and personal estate, are regularly made for cash, without credit; or by sanction, and under the direction, of some j udicial tribunal, prescribing the extent of the credit and the nature of the security.
In some of the states of the Union, personal property is thus sold by direction of the Ordinary, and usually upon pei'sonal security.
In this state a,practice has long prevailed, of permitting an executor .or administrator to sell personal property, either for cash or upon short credits, with approved personal secu
I am not aware of any judicial decision upon the point in this state, but I regard the principle as unquestionable, and it is sustained by abundant authority in other states.
In King v. King’s Adm’rs, 3 Johns. Ch. R. 552, the administrators sold the leasehold estate of the intestate on credit, and took a promissory note of the purchaser, without security. The purchaser paid part of the purchase money, but became insolvent before the residue could be collected.
I have dwelt thus long upon this point, which seems too clear to admit of doubt, or to require discussion, because the administrator was not charged with this loss by the respected tribunal by whom this cause was originally decided. I have looked with some solicitude, to discover the ground upon which that decision could have'been based. It may have been, because they believed that the administrator acted in good faith. I entertain no doubt that he did act in entire good faith, but if the money was lost by his default, the purity -of his motives cannot relieve him from his obligation to make good the loss. Or, the court may have decided, upon the principle that the executor was bound only to use ordinary caution in the management of the estate. That principle is admitted. An executor or administrator is bound to use the same caution and circumspection, that a prudent man would use in the conduct of his own concerns. But no prudent man, influenced by the ordinary motives of self interest, and acting with due caution, will let out his money or sell property on credit, without a responsible security for its payment. But the more decisive answer to the suggestion is, that in parting with the assets of the estate to a purchaser without security, the administrator was violating his,duty, and was guilty of a default. The law allows no exercise of .discretion upon that point. He is bound to •require security. In deciding what security he will accept, he acts at his discretion. He is bound to use ordinary caution only, and if the security prove inadequate, the administrator, acting in good faith,, is not responsible. The case is not altered by the fact that the goods were removed by one
The administrator is responsible for the loss sustained by the neglect to require security. Both claims should have been disallowed, and the decree and account must be corrected accordingly. In all other respects the decree is affirmed.
The main question involved in the cause was novel and proper to be heard before this court. Costs will be allowed to neither party as against the other.