In re the Legacy of Grant

TubNee, S. — The executors under the will of Stewart 0. Boyce have now in their hands the legacy of $2,000 bequeathed in and by the will of said testator to Martha, the daughter of [476] Horace Boyce, and are ready to pay over tbe same to tbe person or persons legally entitled thereto, as tbe court may direct. This legacy is claimed by tbe firm of Sweetzer, Pembroke & Co., of New York city, under and by virtue of tbe assignment of Martba E. Grant, tbe legatee, wbicb they now bold, alleging that sucb assignment-was made, delivered to and accepted by them for value received by said legatee, at tbe time of sucb delivery and acceptance aforesaid. Tbe claim- of Sweetzer, Pembroke & Co-., is resisted by Martba E. Grant, and sbe asks tbat tbe executors be instructed and directed to pay over tbat legacy to ber, predicating ber demand and claim upon tbe facts tbat sbe was, at tbe time of executing and delivering tbe transfers or assignments of tbe legacy in question, a married woman, and a resident of tbe State of Indiana, and tbat sucb transfer or assignment was in contravention of, .and against tbe provisions of tbe statutes of tbat State, and, therefore, invalid and wholly ineffectual. The Married Womans’ Acts of Indiana are embodied in sections 5115 to 5141, inclusive^ of tbe revised -statutes of tbat State, and I am cited to sections 5119 and 5130, wbicb are as follows: “ Section 5119. A married woman shall not enter into any contract of suretyship,- whether as- indorser, guarantor, or in any other manner, and sucb contract, as to ber, shall be void. “ Section 5130. A married woman may carry on any ti’ade or business, and perform- any labor or service on ber sole and separate account. Tbe earnings and profits of any married woman, accruing from ber trade, business, service, or labor, other than -labor for ber husband or -family, shall be her sole and separate property.” Her -contention is, that tbe contract in question was one made and entered into in tbe State -of Indiana, and tbat, therefore, it must be construed and governed by tbe law of tbat State. It'is an elementary principle of law, tbat the- nature, validity [477] and interpretation of a contract is to be determined by the law of the State in which it is made, and if invalid there,' it is invalid everywhere, and if all the facts and circumstances connected with and constituting that whole transaction to its completion, were, as claimed by Martha E. Grant, her contention should prevail, but it seems to me they are not. The evidence tends to show that late in August, or early in September, 1900, W. C. Grant visited the store of Sweetzer, Pembroke & Co. in New York city, and there sought to buy goods of that firm, stating that he proposed to form a copart-nership with one Martha, or Mattie E. Grant, who was a legatee under the will of her late uncle to the amount of $2,000, and which was .substantially ready for payment over by the executors, and that she would transfer the same to Sweetzer, Pembroke & Co. as payment on the goods, 'he intended to purchase foa* the new firm located at Dunkirk, Ind., and that he selected goods on the strength of this statement, and which were put aside to be shipped when Sweetzer, Pembroke & Co. should receive and accept a satisfactory transfer or assignment of that legacy. Subsequently Martha E. Grant did execute in the State of Indiana, a ¡transfer in writing of that legacy to Sweetzer, Pembroke & Co., and it was sent to them, but not proving acceptable she duly executed in the same State another assignment, being the instrument of September 25, 1900, and which was also sent to Sweetzer, Pembroke & Co., and which, on or about September 28, 1900, Sweetzer, Pembroke & Co. received and accepted, and immediately thereafter shipped the goods to W. C. Grant & Co., at Dunkirk, Indi The legacy was in the State of New York, in the hands of the executors, who were and are residents of this State, and who must discharge their duties as such executors under Néw York laws, and pursuant to the decrees of the proper Probate Court in this State. [478] Sweetzer, Pembroke & Co. were merchants located and selling goods in tbe city of New York, and it seems clear to me that the contract between the parties was entered into and completed in that city, and that the mere execution of the’transfers or assignment in the State of Indiana, was simply an incident to, and only one step in the completion of the contract between the parties., ’and that the same was not completed until the reception and acceptance by Sweetzer, Pembroke & Co. of the assignment in question, when they thereupon shipped the goods to W. C. Grant & Co. as provided in the agreement. It seems to me that upon those facts it must be held that the contract was to be performed in the State of New York, and must be governed by the laws of this State. Jewell v. Wright, 30 N. Y. 259, 264; Dickinson v. Edwards, 77 id. 573, 578; Hibernian N. Bank v. Lacombe, 84 id. 367. But upon the facts presented and in view of the rival claims made to that legacy, one by original title and the other by an assignment, apparently valid, a .question is presented which I do not think this court has power or jurisdiction to determine. The jurisdiction of .the Surrogate’s Court is special and limited, and is only such as is expressly or by implication conferred by statute, and possesses no broad equity power, hence, the parties to this controversy must submit the question as to their rights to that legacy, to a higher tribunal for adjudication and determination. Matter of Randall, 152 N. Y. 508. A decree may be entered passing the account of the executors as filed, and containing a provision for payment over of the residuary moneys and legacies as provided in the will of testator, except as to the legacy to Martha E. Grant, concerning which a provision may be made for its payment to Sweetzer, Pembroke & Co. under their assignment, unless the legatee named in the will shall, within forty days after service upon her attorney of a copy of the findings, conclusions and decree herein, commence an action in the Supreme Court of the State [479] of New York, to have tbe assignment of said legacy invalidated, and for a decree or judgment directing payment of said legacy to berself. Let findings, conclusions and a decree be prepared accordingly. Decreed accordingly.