Citation Numbers: 43 Barb. 92, 28 How. Pr. 320
Judges: Sutherland
Filed Date: 11/7/1864
Status: Precedential
Modified Date: 1/12/2023
By the Court,
The trust property, (the $100,000 and the real estate on Broadway,) to the income of which Mrs. Rieben was entitled under her father’s will, was not vested in her in her lifetime, but in her brothers as trustees ; and by the terms of the trust she was to have the income thereof, during her life, for her sole and separate use.
It can not be said, I think, that her husband, by the marriage, acquired in her lifetime any vested right to, or interest in, the income, or her savings out of the income; for in equity the income and savings were protected from her husband and his creditors, by the trust, and the limitation of the income to her separate use. (Jagues v. Methodist Fpis. Church, 17 John. 548. Molony v. Kennedy, 10 Simons, 254. Proudley v. Fielder, 2 My. & K. 57.) The last two cases, which are referred to by the counsel for the appellant, also show that even such part of the savings or such property existing from the savings, as may have been in the actual possession of Mrs. Rieben at the time of her death, whether cash, bank notes, or chattels, was her sole and separate prop=erty, and as such protected against her husband in her lifetime, equally with the savings or accumulations of the income, in the hands of her brothers, and which had never been paid over to her.
It appears by the English cases that not only the post-nuptial, but also any ante-nuptial savings out of the income of the trust property limited to her sole and separate use, would have been considered her sole and separate property, and as such would have been protected, in her lifetime, from her husband. (Newland v. Paynter, 4 Myl. & Craig, 408,
It appears from the return of the surrogate that the clothing, jewelry &c. specifically bequeathed by Mrs. Eieben, were purchased by her from the savings of the income limited to her sole and separate use, and that all the moneys and securities in the hands of her administrator with the will annexed, came from like savings.
Except the $50,000, over which she had the general power of appointment, it is to be inferred that Mrs. Eieben could not dispose of, and did not intend by her will to dispose of, any property which did not arise or come from these savings. Probably it should be inferred, from the return, that these savings were all post-nuptial.
It can not be doubted, if Mrs. Eieben had died without having disposed of these savings, or the property arising therefrom, by will or otherwise, that her husband, on her death, would have been entitled, in his marital right, to such savings or property. (Stewart v. Stewart, 7 John. Ch. 229. Molony v. Kennedy, 10 Simons, before cited. Ransom v. Nichols, 22 N. Y. Rep. 114. Rider v. Hulse, 33 Barb. 264. S. C. 24 N. Y. Rep. 372.) Nor can it be doubted, I think, if her marriage had taken place subsequent to the act of 1849, amending the married woman’s act of 1848, that Mrs. Eieben could have disposed of such savings, or property, by will, under the acts, though her separate property, not by the acts, but by the trust, and the limitation of the income of the trust property to her sole and separate use.
But it is insisted, on the part of the appellant, as the marriage took place before the amendment of the act of 1848, by the act of 1849, so as to give the power of devising, that by the marriage he acquired vested “rights, which could not be interfered with or taken away by her will, under the acts. In my opinion the trust, and the limitation of the income of the trust property to the sole and separate use of Mrs. Eieben, prevented his acquiring, by the marriage, any
I see no reason to doubt the correctness of this view of the
My conclusion is, that the decree of the surrogate should he affirmed, with costs. .
Decree affirmed.
Leonard, Geo. G. Barnard and Sutherland, Justices.]