Bunce v. Vander Grift , 8 Paige Ch. 37 ( 1839 )

The Chancellor.

The only allegations in the complainants’ bill which could have justified the issuing of an injunction in this cause are fully denied, not only by the answer of the appellants, but also by the answers of the other defendants; who have a common interest with the complainants in the proceeds of the real estate of which the testator died seized. For the purpose of disposing of the question arising on this appeal, therefore, I must consider it as true that the executrix and her husband were proceeding in perfect good faith to sell the real estate, for the purpose of dividing the proceeds thereof among the several persons entitled thereto, as directed by the testator in his will.

The objection that Gundrey has not filed a consent in writing with the surrogate to be jointly liable with his wife for her acts as executrix, is not well taken. The fourth section of the article of the revised statutes relative to the granting of letters testamentary, (2 R. S. 69,) is only applicable to the case of an executrix who is a feme covert at the time she applies for such letters. Where she is a feme sole at the time, she assumes the trust and takes out letters testamentary, the husband who marries her after-wards is liable for her acts, both before and after the marriage. So long as they both live, he may be sued jointly with her for a devastavit committed by either; and even if he dies before her, his assets are chargeable in equity. She also is liable after the termination of the coverture for moneys which came either to her hands or the hands of the husband, in virtue of the trust. (Adair v. Shaw, 1 Sch. & Lef. Rep. 243. Bellew v. Scott, 1 Strange’s Rep. 440.) Upon a sale of real estate by a feme covert under a power, either as executrix or otherwise, she may convey without the consent of her husband and apply the moneys as directed by the power. But she cannot be coerced by him to execute the deed, as she is required to acknowledge it as her voluntary act, upon a private examination, as in other cases. (1 R. S. 735, § 110, 117.) There is no valid reason, therefore, for depriving the other defendants of the benéfit of the power granted" to the executrix by the will, and subjecting this real estate to the extra expense of a sale under a decree in partition;

The legal title, it is true, is vested in the complainants and defendants jointly, but not in the precise proportions stated in the bill. Upon the death of the testator, the remainder in fee, after the re-marriage of the widow, descended upon the six children ; subject to her right of dower therein, and also subject to the execution of the power of sale as directed by the testator. But the legal title in the share of the one that died did not' immediately descend and vest in the remaining five so as to give each one undivided fifth of the premises, as stated in the bill. On the contrary, the mother took a life estate in that one sixth of the premises under the sixth section of the chapter of the revised statutes relative to the title to real property by descent, as amended by the act.of 1830. (1 R. S. 752, § 6, of 2d ed.) In equity, however, this real estate must be considered as converted into personalty for the purposes of the will from the time of the re-marriage of the widow. The beneficial interests of the several parties in the premises, are for this reason the same as if the land had in fact been converted into personal property at that time. The rights to the beneficial interest in the share of the deceased child, therefore, depend upon the question whether he died before or after he arrived at the age of twenty-one. If he died under age, then his share is to be equally divivided between the five surviving brothers and sisters, under the limitation in the will. But if he was of full age at the time of the happening of that event, then the beneficial interest in the one sixth of the proceeds of the sale which was to be made under the power, belonged to him absolutely ; and must be distributed as personal estate, between his mother and his five surviving brothers and sisters equally. (2 R. S. 96, § 75, sub. 6. Leigh § Dalz. Eq. Corv. 6, 91.)

If the answers of the defendants in this case responsive to the complainants’ bill are true, there was no foundation for an application to this court either for an injunction, or for a partition of this estate which the executrix was proceeding in good faith to sell and distribute, in the manner in which the testator had himself directed it to be done ; and the bill, so far as it seeks either an injunction or partition, will he dismissed at the hearing, unless an entirely different case should he made out by the proofs in the cause. For this reason, I think the decision of the vice chancellor in refusing to dissolve the injunction was erroneous. It must therefore he reversed, with the costs upon this appeal ; and the injunction must be dissolved. The costs of the application to the vice chancellor must take the usual course and abide the event; as it is barely possible that the proofs to be taken in the cause may so far contradict the answers as to show that it was a proper case for equitable interference.