Arrowsmith v. Arrowsmith

E. DarwiN Smith, J.: On the decease of Margaret Arrowsmith, the intestate, her husband, Nelson Arrowsmith, the respondent, undoubtedly succeeded to her estate as a tenant by the curtesy. (Hatfield v. Sneden, 54 N. Y., 285 ; Ransom v. Nichols, 22 id., 110; Barnes v. Underwood, 47 id., 351; Matter of Winne, 2 Lans., 21.) Though they were married before the passage of the act of 1848 for the more effectual protection of the rights of married women, her title to the land in question was acquired after the passage of that act. The respondent, however, took such estate subject to the payment of the debts of his wife. During her life the property was absolutely hers and she was entitled to receive the rents and profits thereof to her own use, and all debts by her contracted became a charge upon her property, as much as if she had been in fact an unmarried woman. The surrogate had full power, therefore, to order the sale of the lands of which she died seized, after her personal property was exhausted, for the payment of such debts. The whole property might be, as it was, sold for that purpose, and the interest of'the respondent was the same in respect to the surplus, after the payment of such debts and the expenses of the sale, that it would have been in any portion of such lands not required for the payment of such debts and not sold. The surplus moneys arising from' the sale represented land, and the surrogate had no power, I [611] think, to dispose of it definitely. If it was land the respondent would primarily be entitled to possess and enjoy it as tenant by the curtesy for his life. In his hands it would be subject to the claims of liis creditors, like other property, and his interest in it might be sold on execution. The surrogate had no jurisdiction to dispose of such property in payment of the debts of the respondent, and could not adjudicate such questions. He could only pass upon the claims of the creditors of the intestate. Under section 55 of the statute relating to the proceedings of the surrogate in such eases (3 R. S., m. p. 107 [6th ed., p. 116] ; and chap. 150, Sess. Laws, 1850, p. 315), he might order the investment of such moneys on the ground that the respondent was entitled to the interest thereof during his life, but he could not pay them to him or to the heir, who would only have been entitled to the reversion of the land sold and represented by such money upon the termination of the life estate. The order of the surrogate is erroneous, therefore, so far as it conflicts with these views. It was error to deduct the estimated amount of the value of the life estate of Nelson Arrowsmith from the proceeds of the sale before the payment of the debts of the deceased. These were entitled to priority of payment. But, as the debts of the intestate were all paid, this is a matter of no consequence, except so far as the decree allows to the respondent the amount of the balance of such estate, which was estimated at $1,110.69, and directs its payment to him. It was error to pay to the appellant the sum of $103.15, as the heir at law of the deceased. This was so much deducted from the surplus arising from said sale after payment of the debts, but there is no appeal in respect to this item. The question whether the judgment of Mrs. Tallinger was a charge upon the surplus fund, or whether the deed of the respondent to the appellant, dated June 20, 1868, conveyed all the interest of the respondent to the said appellant, were questions which could not be adjudicated by the surrogate. The decree of the surrogate should so far be modified, as to direct him to hold the surplus moneys received from said sale for investment as above stated? subject to the adjudication [612] of the proper tribunal in respect to its disposition, and otherwise it may be affirmed, without costs to either party. Present — MulliN, P. J., SMith and Taloott, JJ. Ordered accordingly.