
    Cornelius S. See, assignee, appellant, v. Jacob A. Zabriskie, respondent.
    1. The orphans’ court has no power to relieve, a debtor who has assigned his property under the act “ to secure to creditors an equal and just division of the estates of debtors who convey to assignees for the benefit of creditors,” against the action of the assignee in including in his inventory property of the debtor which does not pass by the assignment. Relief can only be had in this court.
    
      2. Under a gift by will of income to a man and his wife for life, each is entitled to one-half of the income.
    Appeal from an' order of the orphans’ court of Hudson county.
    
      
      Mr. John Linn, for appellant.
    
      Mr. M. Bretzfeld, for respondent.
   The Ordinary.

This appeal brings up for review an order made by the Hudson orphans’ court, on the application of the respondent, striking from the inventory filed by the assignee, under an assignment made by the respondent under the act “to secure to creditors an equal and just division of the estates of debtors who convey to assignees for the benefit of creditors,” the following item: “ Income from the estate of Albert Zabriskie during the life of Jacob A. Zabriskie.” The respondent made the assignment after the death of his father, the above-named Albert Zabriskie.

The respondent obtained a rule of the orphans’ court requiring the appellant to show cause before that court, on a day designated, why the item should not be struck out. That rule was subsequently made absolute; the- court ordering that “ the item contained in said assignment, referring to the income of the estate of Albert Zabriskie, deceased, during the life of Jacob A. Zabriskie, be stricken from said assignment,” and the item was thereby declared null and void and of no effect.” The intention of the court, in making this order, was to adjudge that the income in question did not pass by the assignment, and they intended, therefore, to strike the item from the inventory. The income was given to the assignor by the will of his father, by which the testator gave to his executors all his personal estate in trust, first, to pay his debts and funeral expenses and provide a suitable tombstone for Ms grave, and, secondly, to pay from the income thereof all taxes which might be imposed on his real and personal estate, and, in the third place, to pay to his son, the respondent, and Lavinia, the respondent’s wife, the remainder of the interest and income, during the full term of their natural lives. The will subsequently makes disposition of the principal.

The questions which occur in the consideration of this appeal are, whether the orphans’ court had power to make the order appealed from, and, if so, whether their adjudication was correct. The act confers on the orphans’ court no power, in express terms, to amend either the inventory annexed by the debtor to the deed of assignment, or that which, is filed by the assignee in the surrogate’s office. It gives to it, however, jurisdiction over the proceedings, and that grant includes the power to allow or require additions to the inventory of the assignee, and to permit the correction of mistakes therein. It is obviously proper that the power should exist. The orphans’ court is to pass upon the accounts of the assignee. The inventory is the basis of the charges against him. The amount of his bond depends upon the valuation of the property with which he charges himself in his inventory. If the inventory be defective, the parties interested in the estate should have the power to cause it to be corrected. In the case before me the application was made by the debtor. It was undoubtedly entertained on the ground that it was the duty of the court to relieve the debtor from the embarrassment to which, he would be subjected by the action of the assignee, in including in his inventory property of the assignor which, as the court supposed, did not pass by the assignment. This view was erroneous. The orphans’ court has not the power to relieve the debtor in this way. Such relief can only be obtained by the debtor by application to this court. Rut, if the jurisdiction of the orphans’ court were, conceded, the order is erroneous. If the debtor’s property under the bequest, be considered as it stood at the common law, the whole income passed by the assignment. Bolles v. State Trust Co., 12 C. E. Gr. 308; Outcalt v. Van Winkle, 1 Gr. Ch. 513.

Under the acts intended to secure to married women the separate use of their property, the husband, in this case, would be entitled only to an equal share of the income with his wife. His share passed by the assignment. The orphans’ court appears to have considered the bequest as an entirety, legally incapable of partition, as a bequest to husband and wife .for their joint benefit, and, therefore, on the ground that each is entitled to the benefit of the whole, not divisible.' It is to be remembered that the bequest is merely the gift of the income to the debtor and his wife for their lives. In Washburn v. Burns, 5 Vr. 19, it was held that where land is conveyed to husband and wife in fee, the husband is entitled to the use and possession of the property during the joint lives of himself and his wife, and that he has a life estate in the whole property. The question of the efl'ect of our acts, above referred to, in favor of married women, was not considered nor raised in that case. It has been held in other states, where like statutes exist, that the common law right of the husband is abridged, and that he does not hold a life estate in the whole property to the exclusion of his wife, but that her right to the enjoyment of the estate, as joint tenant with him therein, is secured by the acts referred to. McCurdy v. Canning, 64 Penn. 39; Freeman on Partition, § 75. The debtor in this case was, when the assignment was made, entitled to one-half of the income in question. The order appealed from will be reversed, with costs.  