In re Finch

1 Cl. Ch. 538

• Court: New York Court of Chancery
• Decided: March 15, 1841
• Status: Published

Opinion

The Vice Chancellor.

The petitioners seem to labor under the erroneous impression that this money, the proceeds of the sale of the infant’s real estate, is personal property; and as such, of right belongs to the husband. The sale of this real estate was made by order of this court, under the statutes authorising the sale of the real estate of infants. The 180th section of that statute provides that the proceeds of such sales shall be deemed real estate, of the same nature as the property sold. This money,, though in court in money, is to be deemed as real estate 5 and its "disposition must be made under the same rules and with the same formalities, so Far as applicable, as if the property still remained in land. If it still retained the form of real estate, this married infant could not, by joining in a deed with her husband, make a valid conveyance of it. She has not yet arrived at the age of legal capacity for making a conveyance. When she has reached the age of legal discretion, it would doubtless be competent for her, by joining with her husband in a deed, to convey the land—so I apprehend that, after reaching such an age, it would be competent for.her to join with her husband in a petition to have the money paid as they shall direct. But before granting such a petition, I shall feel myself required to take the same precautions to inquire whether it is done with the full and free consent of the wife, as the law requires upon a conveyance of lands. I must then ascertain, either from a personal examination apart from her husband, or from such examination by a proper officer, that the wife directs such a disposition of the money freely and of her own accord, arid without any fear or compulsion of her husband. And such an examination must be preceded by informing the wife fully of her legal rights in relation to this property. After she has become of age, and after such information is given t0 her, and she freely consents to such a disposition of the money, I can see no objection to granting or(]er for its payment. (Ferris vs. Bush and others, 1 Edwards’ Rep. 572.)

Afterwards, upon the wife becoming of full age, a petition was presented by the husband and wife, for the payment of the money in court to the husband. The wife was examined personally by the Vice Chancellor, apart from her husband, and fully informed of her legal rights in relation to such money ; and she then acknowledged that she had signed the petition freely and voluntarily, and without any fear or compulsion of her husband; and desired that the money should be paid according to the prayer of the petition. And it appearing satisfactorily that the wife was then of full age, an order was made for the payment over of the money.