Byrne v. Van Hoesen

5 Johns. 66

• Court: New York Supreme Court
• Decided: November 15, 1809
• Status: Published

Opinion

Per Curiam.

Here was enough shown to maintain the action. The former husband of Polly Byrne died in possession of the locus in quo, and that possession had been transmitted to him from his ancestors. He left three infant children, who are still minors j and on his death his widow entered into possession, and has retained it ever since. Her possession was sufficient to maintain trespass. But the intendment of law is, that she is in possession by right, and entered as guardian in socage to her children, as her entry and perception of the profits have not been accompanied with any acts or declarations inconsistent with that character. (3 Cruise’s Dig. 411. 3Wils. 516. 1 Johns. Rep. 163.) This guardianship ceases when the infant arrives at the age of fourteen, so far as to entitle the infant to enter and take the land to himself; and yet, if no other guardian succeeds, this will continue. (Litt. s. 123. Andr. 313.)

The guardian in this case being married to the other plaintiff, the suit was properly brought in their joint names; for the husband must join with the wife in her suits.

There is no ground, therefore, to set aside the verdict, and the motion is denied.

Rule refused..