Northrop v. Barnum's

15 Wend. 167

• Court: New York Supreme Court
• Decided: May 15, 1836
• Status: Published

Opinion

By the Court,

Savage, C. J.

The object of giving the bond on which this suit is brought, was to secure to the wife the property which she received from her father as a legacy given to her by his will. It is in the nature of a settlement upon the wife in consideration of a portion received. It is true that the legacy being personal property and bequeathed to the wife directly, became the personal property of the husband; he was therefore under no obligation to dispose of it for the benefit of his wife. He had, however, an undoubted right, and in this case it is to be presumed that he considered it his duty, to do so. Ho objection is raised here by creditors, but by the personal representative. We have the authority of Chief Justice Reeve for saying, that if the husband after marriage receive a portion which came to his wife, from some person deceased, and in consideration thereof make a reasonable settlement, it is good. Reeve Dom. Rel,178, citing Colville v. Parker, Cro. James, 158. In Brown v. Jones, 1 Atk. 188,90, it is said by Lord Hardwieke, that it is admitted, if a settlement is made before marriage, though without a portion, it would be good, for marriage itself is a consideration ; and it is equally good if made after marriage, provided it be upon payment of money as a portion. That was a contest between creditors of the bankrupt husband on the one side and the wife and children on the other. This is a contest between the wife herself in the name of her trustee, and the executor of the husband. If such a settlement is good against creditors, it surely is against the party’s representative. I am clearly of opinion that the bond is valid whether we look into the consideration or not.

The plaintiff is entitled to judgment.