White v. White

20 Misc. 481, 46 N.Y.S. 658

• Court: New York Supreme Court
• Decided: June 15, 1897
• Status: Published

Opinion

Gaynor, J.

It is contended for the defendant that the ante-nuptial agreement is executory; that the plaintiff cannot maintain this action without a release or conveyance to him of the defendant’s estate by the curtesy; and that as the defendant did not agree to make such a conveyance, but only to passively permit the property to pass by descent, he cannot be required to make it, or be deemed as having made it, upon the equitable principle of deeming that clone which should be done.- Justice requires that the contract be otherwise -interpreted if- possible, for its plain intention is that defendant should not have an estate, by the curtesy. The agreement not to assert any right or interest after the wife’s death, but to let the estate pass, coupled with the prior part, shows that the words first used had reference to the death of the wife as well as to her lifetime. So viewed, the contract became an executed agreement in all respects upon the marriage, and the defendant became by it incapable of having an estate by the curtesy, either initiate or consummate. The intention was to avoid the laws of coverture, descent and distribution, and the agreement executed that purpose so soon as made. Neves v. Scott, 50 U. S. 196; Matter of Young, 92 N. Y. 235.

It is also contended that the plaintiff cannot claim under the contract, for want of privity. In Lawrence v. Fox, 20 N. Y. 265, and kindred cases, the holding is that if A. owes B., and takes the agreement of 0. to pay the debt, B. may maintain an -action against 0. upon such agreement. The legal obligation of A. to B. makes B. privy to the contract for his benefit of A. with 0. In Vrooman v. Turner, 69 N. Y. 280, no such legal obligation existed of A. to B., for which reason it was held that B. could not sue 0. upon the agreement for lack of privity. These two cases by contrast show the rule with precision, and all misconception of it comes from looseness of statement in other cases. There was no legal obligation of the mother to havé her lands descend to this son free of the estate by the curtesy, and that element is lacking to make a privity between him and his father through the antenuptial contract. But it seems that the rule of privity through legal obligation does not apply to contracts like this. King v. Whitely, 10 Paige, 465. The necessary privity is had here through the land itself, and the laws of descent. The antenuptial contract runs with the land. Heirship suffices to establish privity here, as a deed of conveyance by the wife would have done for her grantee, assuming that our statute allowing married women to convey as if sole had not existed. Moreover, mere relationship "alone will make such privity. Schouler on Hus. & W., § 249; Michael v. Morey, 26 Md. 239; Schemerhorn v. Vanderheyden, 1 Johns. .139; Shepard v. Shepard, 7 Johns. Ch. 57; Todd v. Weber, 95 N. Y. 181. In the Sehemerhorn and Shepard cases there was no privity except by relationship between the promisee and the third person. The lack of precision of statement in the Todd case may defy any attempt to ascertain from the very much said upon'what ground the privity of the plaintiff there to the contract of the deceased with-the plaintiff’s relatives was put, but it must have been upon her relationship to them or nothing; for the case did not change the law in respect of the requirement of privity, as the later decisions of that court show: In none of these cases was there any legal obligation from the promisee or covenantee to the third person.

Ho ground seems to be stated for the objection that the defendant has a right to retain possession, because the infánt says he may. The guardian of an infant’s property is not subject to the restraint of the infant’s wishes or agreements.

Judgment for the plaintiff.