As to the second question, whether Lydia Houghton assented to the sales made by the executor - The evidence appears to us not satisfactory. Courts should be slow to sanction the assent of a wife to the conversion of real estate into money, without convincing proof that she assented understandingly, and with a full knowledge of the legal effect of such a conversion upon her rights and interests, and without any undue influence on the part of her husband. The loose conversations of the wife, such as are proved by the deposition of Polly G. Brooks and George A. Houghton, unsupported as they are by any circumstance to show that she understood the legal effect of such a change, and did not act under the influence of her husband, ought not, we think, to be binding upon her or her heirs. Upon her death, therefore, her share of the real estate descended to her heirs, the sales of the executor being void. But the heirs have since elected to confirm the sales, as they had a right to do, and are, therefore, entitled to an equivalent in their distributive shares of the fund produced by the sales.
They are, however, not entitled to the whole share belonging to Lydia Houghton. The husband, during the life of his wife, was entitled to the profits and income of her real estate; and he continues entitled to receive the same as tenant by the curtesy. The interest of the money for which the lands sold, consequently, belongs to him, he relinquishing his claim to the lands. We are aware that this may probably exceed the profits or income of the estates sold, and so probably the amount of sales exceed the present value of the estates sold. But to these advantages, if any there be, the parties are respectively entitled. The appellant's distributive share will, upon these principles, be the amount of the past interest, and the present value of his life-right in the future interest or income of his deceased wife's share of the fund arising from the sales.
The expectation of life is to be determined by Dr. Wigglesworth's Table of Mortality, and the value of the life-right may be ascertained by computation, or by Dr. Bowditch's life-annuity tables.
The decree of the judges of probate is to be reversed, and a new decree entered up in conformity to these principles, and the papers are to be remitted to the Probate Court for further proceedings.
3. In Husband's Common-Law Right to Wife's Real and
13 Pickering (Mass.), 154. - 1832. [Reported herein at p. 24.]
19 New Jersey Equity, 229. - 1868.
The Chancellor. - The complainant, as administrator of the estate of Ann Riley, calls upon the defendant to account for the rents of certain leasehold property in Jersey City, held by Ann Riley at her death, and which the defendant has received; he claims to have received them in his own right, and that they are legally his own, by a bequest in the will of Miles Riley, the husband of Ann. Ann Riley became entitled to the leasehold estate by the will of her former husband, James Cummings, who bequeathed to her one-third of it, and a right of support out of the other two-thirds. After Cummings' death, she was married to Miles Riley, who died in her lifetime, without having in any way aliened or disposed of the leasehold estate, but by his will gave it to his brother Owen Riley, the defendant.
The defendant claims that Miles Riley in his lifetime had erected buildings upon this property, and collected the rents, and by this he had shown his intention to appropriate this leasehold, which, as a chattel real of his wife, he had a right to reduce into possession, and appropriate.
The evidence shows, that in the life of Miles Riley and after his marriage with Ann Cummings, buildings were erected on the premises, but the clear weight of evidence is that they were erected by his wife, and paid for out of the rents of the whole premises, which the executors of Cummings permitted her to receive and collect for that purpose. Miles Riley appears to have aided by performing some work in the erection of the buildings, and to have contributed a few dollars towards the erection.
The only question that arises is, whether these leasehold premises were disposed of, or appropriated by Miles Riley in his life, so as to vest the property in him, and take away the right of his wife after his death. Miles Riley died in 1848, and this question must be decided by the law as it stood then. By that law, the personal property of a woman, upon her marriage, vested in her husband; her goods and chattels absolutely; he had the right to the possession of her choses in action, and of her chattels real, and could at any time dispose of, collect, or sell them, and by this the proceeds of them became his absolutely; but if he did not reduce them to possession by disposing of them, or some equivalent act, they survived to her, and would not pass by his will, which did not take effect until his death, when the title had become vested in her by the survivorship.
Taking possession, collecting rents, interest, or dividends, has never been held to be a disposition of the property, or a reduction into possession, so as to take away the wife's right of survivorship. Nor has it ever been held that the erection of buildings by the husband on the leasehold lands of the wife was such disposition of them as to take away her right. An actual disposition by sale, lease, or mortgage, or contract for such object, has always been required to take away the wife's right of survivorship. A mortgage or a sale of part, or a lease of part, or for a less term, only bars the wife pro tanto; her right of survivorship remains in the equity of redemption, and the residue of the premises or term.
In this case no interest in the premises passed by the will of Miles Riley; the whole survived to Ann Riley, and her administrator is entitled to the fund.