43 Barb. 124 | N.Y. Sup. Ct. | 1864
Lead Opinion
This appeal presents two questions: First. Is the claim made against the administrator one which could be referred under title 3, part 2, chapter 6, section 34 of the revised statutes? The statute is véry comprehensive; it authorizes the reference to be made of any disputed “claim” against the estate of any deceased person. It does not exclude equitable claims. It does not limit the reference to legal claims. The supreme court, at general term in the second district, have decided in an important case, (Ackemon v. Congdon, ex’r &c. of Ackemon, deceased.that the power to refer under this statute covers both legal and equitable claims against a deceased person.
Second. Is the evidence sufficient to sustain the judgment P It is needless to go into a full examination of the American and English cases on the subject of charging the separate estates of married women. They are very conflicting as to the principle stated, and on the reasoning by which they are supported.
The court of appeals have in a late case established that, in order to charge the separate estate of a married woman, there must have been an intention to charge the separate estate stated in the contract itself, or the consideration must be one going to the direct benefit of the estate. (Yale v. Dederer, 22 N. Y. Rep. 450.)
The case shows no evidence that the deceased contracted this debt with the intention to charge her separate estate stated in the contract.
The vital fact necessary to charge her separate estate is wanting. Her subsequent promise to pay the debt out of her separate estate does not supply the defect of proof in the original contract. From the evidence given, she was never liable at all. She must have done enough to charge her separate estate at the time of the contracting of the debt, and in the contract, or there is no action against her, unless the consideration went to the benefit of the estate directly.
I think that the evidence is insufficient to charge the defendant’s estate, and the judgment should be reversed and a new trial granted, with costs to abide the event.
Leonard, J. concurred.
Concurrence Opinion
I can not concur. In my opinion, the evidence and the facts found by the referee would have abundantly sustained an action, in the lifetime of Mrs. Boerum, to charge her separate estate with the payment of the debt,' and, considering the judgment in this case to be payable or collectable only out of such portion of the separate estate of Mrs. Boerum as may be in the hands of the defendant as her administrator, I think the judgment is right and should be affirmed. The rule or principle as to the liability of the separate estates of married women, stated in the opinion of Justice Barnard, is, in my opinion, much too limited.
Hew trial granted.
Leonard, Sutherland and Geo. G. Barnard, Justices.]
