Woodworth v. Sweet

44 Barb. 268 | N.Y. Sup. Ct. | 1865

By the Court, E. Darwin Smith, J.

The nonsuit in this case was granted upon the ground that the $600 in money, which- the plaintiff’s husband paid her on the eve of his insolvency, was not paid to her upon any clear and certain debt which in equity would be recognized as such between husband and wife, but was a naked gift of his property, in fraud of his creditors. The husband, at common law, was entitled to all the personal property and dioses in action of his wife and the use and profits of her real estate during coverture. The money which the plaintiff’s husband received from the estate of her father was personal estate, and when it came into the hands of the husband became prima facie his property, absolutely. This money was received before the acts of 1848 and 1849, and the plaintiff was married before that time. The case is therefore to be considered and disposed of irrespective of those acts. The husband had had this money ($1000) about ten years, and •used it in his business, before he paid it to his wife. No bond, note or other written evidence of debt as between husband and wife, indicating an agreement on the part of the husband to allow this money to remain the separate property of his wife, was produced or proved on the trial, but the plaintiff testified that there was an agreement by parol between her and her husband that she was to let him have it and he was to.pay it back with interest. At the time when the plaintiff’s husband paid this $600 to her, as she states, he clearly could not make a gift to her of that sum, for she says he was then insolvent and was about making an assignment of his property. But if he was really indebted to her in the sum of $1000 which by agreement between them was an actual debt, which had existed and been recognized between them as such, and he had had her money for that amount which he had agreed to keep for her and treat as her separate property and repay it to her with interest, I think equity would hold him to be her trustee for that amount,, and allow him to pay her the same, as much and as well as he might pay any other creditor. It would be necessary in this view that this money in his hands should be held and regarded between them, at and from the time of its receipt by him, as a loan from her to him; that he was in fact a debtor to her for the same and they had constantly, purposely and intentionally treated the sum in his hands as her separate property. The husband was not obliged to insist on his marital rights to his wife’s personal property and choses in action; and if he did not assert such rights, and expressly agreed with her not to do so, and acted upon this agreement, equity would allow him to pay her any money she may have temporarily lent him, under such circumstances. Courts of equity regard husband and wife as distinct persons, and allow them to contract with each other as though they were unmarried persons. I think, therefore, that the nonsuit was erroneously granted in this case, and that the question should have been submitted to the jury whether this $600 was a gift from Woodworth to his wife, or was really and actually a payment of an existing debt to her.'

[Moneoe Geneeal Teem, September 5, 1865.

Johnsoít, J, .concurred.

Jambs C. Smith, J. dissented.

Hew trial granted.

James 0. Smith, Johnson and S. Darwin Smith, Justices.]