Rieben v. White

By the Court, Sutherland, J. The trust property, (the $100,000 and the real estate on Broadway,) to the income of which Mrs. Rieben was entitled under her father’s will, was not vested in her in her lifetime, but in her brothers as trustees ; and by the terms of the trust she was to have the income thereof, during her life, for her sole and separate use. It can not be said, I think, that her husband, by the marriage, acquired in her lifetime any vested right to, or interest in, the income, or her savings out of the income; for in equity the income and savings were protected from her husband and his creditors, by the trust, and the limitation of the income to her separate use. (Jagues v. Methodist Fpis. Church, 17 John. 548. Molony v. Kennedy, 10 Simons, 254. Proudley v. Fielder, 2 My. & K. 57.) The last two cases, which are referred to by the counsel for the appellant, also show that even such part of the savings or such property existing from the savings, as may have been in the actual possession of Mrs. Rieben at the time of her death, whether cash, bank notes, or chattels, was her sole and separate prop=erty, and as such protected against her husband in her lifetime, equally with the savings or accumulations of the income, in the hands of her brothers, and which had never been paid over to her. It appears by the English cases that not only the post-nuptial, but also any ante-nuptial savings out of the income of the trust property limited to her sole and separate use, would have been considered her sole and separate property, and as such would have been protected, in her lifetime, from her husband. (Newland v. Paynter, 4 Myl. & Craig, 408, [96] 417, 418. Davis v. Thorneycroft, 6 Simons, 420. 2 Story’s Eq. Jur. § 1384, 7th ed. and cases there cited.) It appears from the return of the surrogate that the clothing, jewelry &c. specifically bequeathed by Mrs. Eieben, were purchased by her from the savings of the income limited to her sole and separate use, and that all the moneys and securities in the hands of her administrator with the will annexed, came from like savings. Except the $50,000, over which she had the general power of appointment, it is to be inferred that Mrs. Eieben could not dispose of, and did not intend by her will to dispose of, any property which did not arise or come from these savings. Probably it should be inferred, from the return, that these savings were all post-nuptial. It can not be doubted, if Mrs. Eieben had died without having disposed of these savings, or the property arising therefrom, by will or otherwise, that her husband, on her death, would have been entitled, in his marital right, to such savings or property. (Stewart v. Stewart, 7 John. Ch. 229. Molony v. Kennedy, 10 Simons, before cited. Ransom v. Nichols, 22 N. Y. Rep. 114. Rider v. Hulse, 33 Barb. 264. S. C. 24 N. Y. Rep. 372.) Nor can it be doubted, I think, if her marriage had taken place subsequent to the act of 1849, amending the married woman’s act of 1848, that Mrs. Eieben could have disposed of such savings, or property, by will, under the acts, though her separate property, not by the acts, but by the trust, and the limitation of the income of the trust property to her sole and separate use. But it is insisted, on the part of the appellant, as the marriage took place before the amendment of the act of 1848, by the act of 1849, so as to give the power of devising, that by the marriage he acquired vested “rights, which could not be interfered with or taken away by her will, under the acts. In my opinion the trust, and the limitation of the income of the trust property to the sole and separate use of Mrs. Eieben, prevented his acquiring, by the marriage, any [97] such vested rights in her lifetime, or to her savings from the income. I think the right which he did acquire by the marriage to succeed to the savings of her sole and separate income, in case he survived her, and in case she did not dispose of them by will or otherwise, was not,, and can not be called, a vested right, so as to raise the constitutional question. I think, while the trust and the limitation of the income of the trust fund and property to her sole and separate use, protected her savings from the income from her husband, in her lifetime, and prevented him from acquiring by the marriage any vested right, in her lifetime, to or in these savings, the married woman’s acts gave her power to dispose of them by will. I see nothing inconsistent in the two parts of this proposition. I think the cases of Westervelt. v. Gregg, (2 Kern. 205,) and Rider v. Hulse, (supra,) do not apply, because the savings were the sole and separate property of Mrs. Rieben,- by the trust and the limitation of the income of the trust property to her sole and separate use. In Rider v. Hulse, (33 Barb. 267,) Justice Brown says: “The effect of the acts of 1848 and 1849 upon such estates [estates settled upon a married woman for her sole and separate use] is to convert the equitable into a legal title in the wife, when there are no trustees, and when there are trustees vested with the legal title, to authorize a conveyance thereof to the wife under the limitations prescribed in section two of the act of 1848. It results, therefore, from this view, that if the choses in action in controversy, or the money and property which they represented, was the separate estate of Elizabeth Ryder at the time the acts referred to took effect, the plaintiff has no title thereto, which he can assert, as against the bequest of the wife, because the act of 1849 expressly authorizes a married woman to convey and devise real and ¡Dersonal property, and any interest and estate therein, in the same manner, and with the like effect, as if she were unmarried.” I see no reason to doubt the correctness of this view of the [98] operation of the acts of 1848 and 1849, as to the sole and separate estate or property of a married woman, when the acts took effect. [New York General Term, November 7, 1864. My conclusion is, that the decree of the surrogate should he affirmed, with costs. . Decree affirmed. Leonard, Geo. G. Barnard and Sutherland, Justices.]