By the Court.
—Two questions are submitted on this appeal.
1. Is the estate of tenancy by curtesy abolished as to subsequently-acquired property of a married woman, by the acts of 1848 and 1849 ?
2. If not, was there such an estate vested in the wife of the plaintiff Burke, as to entitle him to an estate by curtesy after her death %
. The property was devised by will in 1853, and, consequently, the title of the plaintiff’s wife, whatever it was, was subject to the operation of those statutes. The acts of 1848 and 1849 were intended to protect a married woman in the free use, enjoyment and disposal of her estate for her sole separate use, and provided that such property should not be subject to the disposal of her husband, nor be liable for his debts.
Neither of these statutes in words relate to the property or the right of any one in the property of the wife after her death, in cases where she has not conveyed the same during coverture, or devised the same to others after her death. In such cases it is very clear the husband could have no estate by the curtesy, because it would interfere with the right conferred upon her of conveying or devising the same or any interest therein. If thus, this estate of tenant by the curtesy is taken away, it is because [169]*169it is inconsistent with the provisions of these statutes and the intent of the legislature in passing them.
The first case on this subject is that of Hurd v. Cass, (9 Barb., 366), at special term before Justice Mason, where he holds that the statutes of 1848 and 1849 have not taken away the husband’s right to the property after her death, if she has not by deed or will disposed of it. The reasoning in that case is founded on the proposition that ‘ those statutes have not and were not intended to alter the law of descent, or for any other purpose than to protect the property of the wife during coverture, and to empower her to convey by deed or devise. In Blood v. Humphreys (17 Barb., 660), Mason, J., held that the intent of these statutes was to place married women, as far as the lands which they held were concerned, on the same basis as unmarried females. In Shumway v. Cooper (16 Barb., 556), it was held that these acts did not interfere with the rights of the husband after the death of the wile, if she omitted to exercise her right of disposal, and therefore left the general statute, regulating the marital rights of the husband, in case of intestacy of the wife, in force. In Clark v. Clark (24 Barb., 581), Judge Marvin concurred with the case in 9 Barb., 366, and held that the statute under consideration did not deprive the husband of his rights as they existed previously, after the death of the wife intestate. If the legislature had intended to deprive the husband of these rights, it should have so declared expressly in the act. Lansing v. Grulick (26 How. Pr., 250), adopts the same conclusion, and holds that the right of tenancy by the curtesy still exists, notwithstanding the acts of 1848 and 1849, subject to be defeated by the wife by any disposition of the property in her lifetime by deed or will. In Jaycox v. Collins (26 How. Pr., 497), the supreme court at general term in the 7th district held that the estate of a tenant by the curtesy had survived the acts of 1848 and 1849. So in Vallance v. Bausch (28 Barb., 633), the general term in this district held that the right of succession to the personalty of the wife undisposed of by her at her death, remained in [170]*170the husband. It was added in that case, “I think the •legislature intended to take away neither ” the right of succession to the personalty nor his estate as tenant by the curtesy in her undisposed-of realty.
In opposition to these cases, are Colvin v. Currier (22 Barb., 371), and Billings v. Baker (28 Id., 343). In the first case Justice Smith says : “ These acts repeal the common law giving the husband a right to the personal estate of the wife and a freehold interest in her inheritance, and subjecting the same to the payment of his debts.” In regard to this case it is proper to say the point was not necessarily involved, and this, therefore, is not to be regarded as authority. It is also in conflict with the case of Jaycox v. Collins in the same district, where the question was material to the decision of the case.
With this conflict of decision in the supreme court we must yield to the weight of authority, which is clearly in favor of the construction which holds that the estate of a tenant by curtesy still exists, notwithstanding the passage of the married woman’s acts.
We are not, however,. without an expression of opinion on this question from the court of appeals. In Ransom v. Nichols (22 N. Y., 110), the court holds that the husband has the right to recover and enjoy as his own, personal property of a married woman after her • death, which she has not disposed of. Bacon, J., says: “If she fail to make any disposition of the property by way of sale or by testamentary bequest, then the rules, which always prevailed before the statutes of 1848 and 1849 Avere enacted, take effect, and the husband has all the rights given to him by the common law and by those provisions of the revised statutes which have never been repealed by the later acts.”
The principle decided in this case is applicable to the one under consideration, and warrants the conclusion that the acts of 1848 and 1849 have not interfered with, or taken away the right of the husband to the personal estate, or the estate by curtesy in the real property of [171]*171the wife after her death, if not disposed of by her, either during life, or by will to take effect at her death.
The second question is, whether Margaret E. Burke ever had such estate in the lands of the testator, as to vest in her husband an estate as tenant by the curtesy.
The wife of the plaintiff died in October, 1863.
The youngest child came of age in November; 1865. It is apparent from, these dates, that unless the will is declared invalid, no estate in possession vested in the plaintiff’s wife, at any time prior to her death. She was of age when the testator died, and she died before the youngest child arrived of age. She was one of the devisees in whom was the remainder after the death of the youngest child, but she had no possession, and was entitled to no possession under the will, until the happening of that event. The judge below found that the wife and minor children took a legal estate in the testator’s property, during the minority of the youngest child.
The provisions of the will are: “That all my estate that may be left, shall remain in the hands of my executors, or under their control, for the use of my wife and children, while under age, and after my youngest child shall have arrived at the age of twenty-one years, my will is, &c., that the same shall be divided among my children, share and share alike.”
It is objected to this provision that it is void, as suspending the power of alienation for more than two lives. This is partly based on the supposition, that the will created a trust in the executors. But I think the executors took no estate in trust.
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By the Court.
—Two questions are submitted on this appeal.
1. Is the estate of tenancy by curtesy abolished as to subsequently-acquired property of a married woman, by the acts of 1848 and 1849 ?
2. If not, was there such an estate vested in the wife of the plaintiff Burke, as to entitle him to an estate by curtesy after her death %
. The property was devised by will in 1853, and, consequently, the title of the plaintiff’s wife, whatever it was, was subject to the operation of those statutes. The acts of 1848 and 1849 were intended to protect a married woman in the free use, enjoyment and disposal of her estate for her sole separate use, and provided that such property should not be subject to the disposal of her husband, nor be liable for his debts.
Neither of these statutes in words relate to the property or the right of any one in the property of the wife after her death, in cases where she has not conveyed the same during coverture, or devised the same to others after her death. In such cases it is very clear the husband could have no estate by the curtesy, because it would interfere with the right conferred upon her of conveying or devising the same or any interest therein. If thus, this estate of tenant by the curtesy is taken away, it is because [169]*169it is inconsistent with the provisions of these statutes and the intent of the legislature in passing them.
The first case on this subject is that of Hurd v. Cass, (9 Barb., 366), at special term before Justice Mason, where he holds that the statutes of 1848 and 1849 have not taken away the husband’s right to the property after her death, if she has not by deed or will disposed of it. The reasoning in that case is founded on the proposition that ‘ those statutes have not and were not intended to alter the law of descent, or for any other purpose than to protect the property of the wife during coverture, and to empower her to convey by deed or devise. In Blood v. Humphreys (17 Barb., 660), Mason, J., held that the intent of these statutes was to place married women, as far as the lands which they held were concerned, on the same basis as unmarried females. In Shumway v. Cooper (16 Barb., 556), it was held that these acts did not interfere with the rights of the husband after the death of the wile, if she omitted to exercise her right of disposal, and therefore left the general statute, regulating the marital rights of the husband, in case of intestacy of the wife, in force. In Clark v. Clark (24 Barb., 581), Judge Marvin concurred with the case in 9 Barb., 366, and held that the statute under consideration did not deprive the husband of his rights as they existed previously, after the death of the wife intestate. If the legislature had intended to deprive the husband of these rights, it should have so declared expressly in the act. Lansing v. Grulick (26 How. Pr., 250), adopts the same conclusion, and holds that the right of tenancy by the curtesy still exists, notwithstanding the acts of 1848 and 1849, subject to be defeated by the wife by any disposition of the property in her lifetime by deed or will. In Jaycox v. Collins (26 How. Pr., 497), the supreme court at general term in the 7th district held that the estate of a tenant by the curtesy had survived the acts of 1848 and 1849. So in Vallance v. Bausch (28 Barb., 633), the general term in this district held that the right of succession to the personalty of the wife undisposed of by her at her death, remained in [170]*170the husband. It was added in that case, “I think the •legislature intended to take away neither ” the right of succession to the personalty nor his estate as tenant by the curtesy in her undisposed-of realty.
In opposition to these cases, are Colvin v. Currier (22 Barb., 371), and Billings v. Baker (28 Id., 343). In the first case Justice Smith says : “ These acts repeal the common law giving the husband a right to the personal estate of the wife and a freehold interest in her inheritance, and subjecting the same to the payment of his debts.” In regard to this case it is proper to say the point was not necessarily involved, and this, therefore, is not to be regarded as authority. It is also in conflict with the case of Jaycox v. Collins in the same district, where the question was material to the decision of the case.
With this conflict of decision in the supreme court we must yield to the weight of authority, which is clearly in favor of the construction which holds that the estate of a tenant by curtesy still exists, notwithstanding the passage of the married woman’s acts.
We are not, however,. without an expression of opinion on this question from the court of appeals. In Ransom v. Nichols (22 N. Y., 110), the court holds that the husband has the right to recover and enjoy as his own, personal property of a married woman after her • death, which she has not disposed of. Bacon, J., says: “If she fail to make any disposition of the property by way of sale or by testamentary bequest, then the rules, which always prevailed before the statutes of 1848 and 1849 Avere enacted, take effect, and the husband has all the rights given to him by the common law and by those provisions of the revised statutes which have never been repealed by the later acts.”
The principle decided in this case is applicable to the one under consideration, and warrants the conclusion that the acts of 1848 and 1849 have not interfered with, or taken away the right of the husband to the personal estate, or the estate by curtesy in the real property of [171]*171the wife after her death, if not disposed of by her, either during life, or by will to take effect at her death.
The second question is, whether Margaret E. Burke ever had such estate in the lands of the testator, as to vest in her husband an estate as tenant by the curtesy.
The wife of the plaintiff died in October, 1863.
The youngest child came of age in November; 1865. It is apparent from, these dates, that unless the will is declared invalid, no estate in possession vested in the plaintiff’s wife, at any time prior to her death. She was of age when the testator died, and she died before the youngest child arrived of age. She was one of the devisees in whom was the remainder after the death of the youngest child, but she had no possession, and was entitled to no possession under the will, until the happening of that event. The judge below found that the wife and minor children took a legal estate in the testator’s property, during the minority of the youngest child.
The provisions of the will are: “That all my estate that may be left, shall remain in the hands of my executors, or under their control, for the use of my wife and children, while under age, and after my youngest child shall have arrived at the age of twenty-one years, my will is, &c., that the same shall be divided among my children, share and share alike.”
It is objected to this provision that it is void, as suspending the power of alienation for more than two lives. This is partly based on the supposition, that the will created a trust in the executors. But I think the executors took no estate in trust.
As executors, they were directed to convert the estate into money, and to hold and manage the proceeds, but the interest and estate was in the wife and minor children. Each child had a share of the property while a minor, and the estate of such child ceased on reaching majority, and the share held by such child thereupon vested in the wife and other children who were minors.
In Post v. Hover (30 Barb., 312), on which the plaintiff relies, the provision of the will was that the children [172]*172were not to take the estate until they severally attained the age of twenty-one years ; and the court held such provision suspended the power of alienation for their lives.
The other case of Savage v. Burnham (17 N. Y., 561), was of a similar nature. There the will created a trust in the executors, to remain during the life of the widow, and during the minority of six sons, and during the minority of four daughters, or until their marriage. In each of these cases, the alienation was suspended during the lives of more than two persons "by express provision in the will. The application of the rule, that when the language is capable of two constructions, one of which would be valid, and the other would make the will illegal, the former should prevail, draws the distinction between the present case and those before referred to, and such a construction is, I think, also consistent with the intent of the testator.
It is evident from the whole frame of the will, that the testator never contemplated the probability of any of his children dying before arriving at the age of twenty-one years; and he made no provision for the inheriting of grandchildren in case of such death, or any disposition of the share of any child in case of such an event.
He selected his youngest child, and made the estate to widow and minor children, limited on the minority of the youngest child. Under this construction, the limitation would be dependent on the life or minority of that child, and would vest at once in all the children living when either event happened (Butler v. Butler, 3 Barb., 304 ; Dubois v. Ray, 35 N. Y, 162).
This construction of the limitation is warranted by Hawley v. James (16 Wend., 119), where Ch. J. Nelsoít says: ‘“Youngest of my children and grandchildren,’ standing alone, might well enough refer to the youngest of each class and the clause in the will in that case was held bad, because it in addition said, “ the youngest living and attaining the age of twenty-one years,” by which the intent to apply it to all the children is apparent.
[173]*173The conclusions to which I have arrived on these points, render it unnecessary to examine the other point made hi this case, as to the accounting.
Judgment affirmed.
Present, Ingraham, P. J., and Mullin and J. F. Barnard, JJ.