Vreeland's Executors v. Ryno's

26 N.J. Eq. 160

• Court: New Jersey Court of Chancery
• Decided: May 15, 1875
• Status: Published

Opinion

The Ciiaxcellor.

The bill in this cause was filed by the executors of Hartman Vreeland, deceased, to determine the question as to which of two claimants to a legacy in their hands is entitled to receive it. These claimants are the executor of She will of Sarah C. Kvno, the legatee, and her husband, who is her administrator. She became entitled to the legacy while she was the wife of Addis E. Ryno, the administrator. She did not, however, receive it, nor did he reduce it to possession in her lifetime. Her husband did not consent to, nor know of the making of her will, and it was proved without his knowledge of its existence. By it she gave all her property to her mother for life, and then to her sisters. She died on or about the first of May, 1869. She and her husband had lived separate for many years before her death. On behalf of her executor, it is alleged that her husband deserted her, and committed adultery; and it is insisted that, by reason thereof, ho had at the time of her death forfeited all claims to her estate, if indeed he would otherwise have had any uuder the acts of 1852 and 1864; the former of which is known as the “ Married Women’s act,” and the latter confers testamentary power upon married women. Both the defendants having answered, the cause was referred, by consent, to a master upon its merits, and the master reported thereon in favor of the executor. The administrator excepted to the report, and the cause is now before me on the exceptions. It is settled that the act of 1852 gave to married women only the jus tenendi of their property, and not the jus disponendi. Naylor v. Field, 5 Dutcher 287 ; Belford v. Crane, 1 C. E. Green 265. By the act of 1864, it is declared, that any will or testament by any married female, above the age of twenty-one years, thereafter made, of any real or personal property, shall be held and taken to be as valid and effectual in law as if she were, at the time of the making of such will or testament, a feme sole, and unmarried; provided always, that nothing in the act contained shall be so construed as to authorize any married woman to dispose of, by will or testament, any interest to which her husband then was, or would be at her death, entitled by law, in her real or personal property; but such interest shall remain in and survive to the husband, in the same manner as if such will had not been made. By law, the husband then had an interest in the choses in action of the wife, and could reduce them to possession at pleasure, and when so reduced they became his absolutely, and, on his death, went to his representatives. Such of them as had not been reduced to possession by him, at his death, still remained hers, and, on her death, went to her representatives, and not to his. After her death he might, as her administrator, reduce to possession her choses in action not reduced to possession in her lifetime. And he would hold them jure mariti. She could not m'ake a will of chattels without his consent. Williams on Fx’rs 39; VanWinkle v. Schoonmaker, 2 McCart. 384. The act of 1852, while it protects the property of the married woman during her life, does not, at her death, affect the law of succession as to her estate, real or personal. Porch v. Fries, 3 C. E. Green 205. Such has been the construction of a like statute in New York. Ransom v. Nichols, 22 N. Y. 110 ; Ryder v. Hulse, 24 N. Y. 372 ; Barnes v. Underwood, 47 N. Y. 353. The testamentary power given by the act of 1864, is partial only, expressly saving the legal rights of the husband. It seems to me clear, that the will of Mrs. Ryno was of no effect whatever as against her husband, and that lie, as her administrator, might reduce her «-hoses in action to possession. Nor do I think that his adu1’-ry, or his desertion of her, would have worked any foih nure of his rights in the premises. He appears, however, to have supported his wife, though living apart from her, up to about the time of her death, and the arrangement into which he had entered for her support, and under which he had for years provided for her maintenance, was subsisting when she died. He was entitled, by law, to administration of his wife’s estate. He holds letters, accordingly. The existence of the letters testamentary creates no obstacle to a decree in favor of the husband. He is, by law, entitled to the money, and it should be paid to him, deducting therefrom, however, and paying to the executor, the funeral expenses of the wife, which he has paid.

The exceptions are sustained, but without costs. There will be a decree in accordance with this decision. The complainants are entitled to their costs out of the fund.