
    Mortimer Hendricks, Resp’t, v. Montefiore Isaacs, Adm’r, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed November 26, 1889.)
    
    1. Married women —Husband and wife—Contracts between, when VOID.
    The common law doctrine that husband and wife cannot contract together has not been changed in this state by legislation respecting the rights of married women. If any exception exists, it has been created by Laws 1887, chap. 637, in regard to conveyance of real estate.
    2. Same.
    Plaintiff in 1884 advanced money to his wife, from whom he was separated, for the support of their children, upon her written promise to repay the same from her interest in the estate of his father, who had willed his son’s share to her. Held, that the contract was void at law and could not be enforced against the adminstrator of the wife’s estate.
    3. Same—Consideration—Equity—Rights of creditors.
    The referee refused to allow defendant to prove that the wife had expended from her own means, in support of the children, a larger, sum than would be coming to her from the plaintiff’s father, and that her debts at the time of her death were greater than such sum. Held, error; that while there was a sufficient consideration for the enforcement of the contract in equity, plaintiff acquired no equitable claim against his wife’s estate under such circumstances.
    Appeal from judgment of supreme court, first department, modifying and affirming judgment of special term, entered on the report of a referee upon a reference of a claim against the estate of the wife of plaintiff.
    
      William Man, for app’lt; Abram Kling, for resp’t.
    
      
       Reversing 22 N. Y. State Rep., 663.
    
   Andrews, J.

advances made by the plaintiff to his wife in the summer of 1884 were made for the support of the family and upon her written promise to reimburse the plaintiff from the interest, when received by her, “ out of the estate of M. M. Hendricks, deceased.” This was the clear legal import of the writing, interpreted in connection with the circumstances. The money advanced, though received by the daughter, was received for the mother. The daughter entered into no engagement for its repayment. The receipts acknojwledged the receipt of the sums advanced and that they were to be repaid by the mother out of the-fund specified. They were signed by the daughter but the mother-undersigned them and her signature was preceded by the words,. “I concur and agree to this.” The mother thereby entered into-an original obligation to repay the advances. It was her promise, and not a promise of the daughter guaranteed by her.

The origin and nature of the interest of Mrs. Hendricks in the estate of M. M. Hendricks, deceased, is explained by the evidence. Montague M. Hendricks, the father of the plaintiff, died in May, 1884, leaving a large estate. By his will he devised his real and personal estate to trustees in trust to receive the rents, income and profits during the life of his wife with directions to pay a certain-sum thereout annually to his wife and to distribute the remainder in equal parts to five children, other than the plaintiff, and Justina. B. Hendricks, the plaintiff’s wife, but in case of her remarriage after the death of the plaintiff her share was to be paid thereafter to her issue by the plaintiff. The provision in favor of Justina, the wife of the plaintiff, concludes as follows: “ It is also my will, that whatever moneys may be received by the said Justina under this clause are to be by her applied to the maintenance and support of herself and her issue by her present husband.” The trustees paid to Justina during her life out of the income to which she was entitled under the will the sum of $8,000, the first payment being made November 5, 1884. She died in July, 1885, and the trustees paid to her administrator after her death $2,743.18, for income which had accrued on her share prior to her death, but which had not been paid over.

It appears that the relations between the plaintiff and his wife were not friendly, and in the fall of 1884 they separated and lived apart until the death of the wife, the children, five in number, with one exception, remaining with the mother and being supported by her. The nature of the difficulty between the parents is not disclosed, nor does it appear under what circumstances, the separation took place. The plaintiff presented to the administrator of the wife a claim against her estate for the advances made, which was referred under the statute, and judgment therefor has been awarded, and the point on this appeal respects the right of the plaintiff to have the contract made with his wife enforced against her estate. The contract was void at law. The-common law doctrine that husband and wife could not contract with each other has not been changed in this state by legislation respecting the rights of married women. The entire and absolute disability of married women to enter into any legal contract, which was a stubborn and inflexible principle of the common law, has indeed in some respects been modified. She may now under our laws purchase real and personal property and carry on business on her own account, and as incident to these. rights she may enter into contracts with third persons for the purchase and sale of property, or in the prosecution of her separate business, enforcible in a legal action to the same extent as though she was a feme sole. But the disability to deal with her husband, or to make a binding contract with him, remains unchanged. Contracts between husband and wife are invalid as contracts in the eye of a court of law to the same extent now as before the recent legislation. See Yale v. Dederer, 18 N. Y., 265; White v. Wager, 25 id., 329; Frecking v. Rolland, 53 id., 422; Cashman v. Henry, 75 id., 103. If any exception exists, it has been created by the act of 1887, not applicable to the transaction in question.

But the unity of husband and wife, by which the legal existtence of the wife was merged in that of her husband, prevented them from contracting with each other as if they were two distinct persons, never prevailed in courts of equity. It may be more accurate to say that courts of equity disregard the fiction upon which the common law proceeded, and are accustomed to lay hold of and give effect to transactions or agreements between husband and wife according to the nature and equity of the case. It does not limit its inquiry to the ascertainment of the fact whether what had taken place would, as between other persons, have Constituted a contract, and give relief, as matter of course, if a formal contract be established, but it further inquires whether the contract was just and fair, and equitably ought to be enforced, and administers relief where both the contract and the circumstances require it. The jurisdiction in equity has been frequently exercised to enforce contracts or agreements for settlement made between husband or wife before or after marriage in favor of the wife, whether made with or without the intervention of trustees. ¡Reference to the cases will be found in the elementary treatises. It has also been exerted, though less frequently, to enforce agreements in favor of the husband for a settlement out of the property of the wife, or to charge her separate estate in his favor. Cannel v. Buckle, 2 P. Wms., 243 ; More v. Freeman, Bunb., 205; Livingston v. Livingston, 2 Johns. Ch., 537; Gardner v. Gardner, 22 Wend., 526; 2 Kent Com., 167.

But courts of equity do not entertain jurisdiction to enforce mere voluntary agreements not founded upon any consideration, either in favor of the wife against the husband, or in his favor against the wife, but if they have been consummated, and are fair and just, courts of equity will uphold the transaction, except as against creditors. Reade v. Livingston, 3 Johns. Ch., 481; 2 Story Eq., §§ 986, 1377, and cases cited.

It is insisted on the part of the appellant that the agreement of Mrs. Hendricks to contribute out of her estate to the maintenance of herself and the family is not supported by any consideration, since the law casts upon the husband the duty of maintaining his household. There is no doubt that the primary obligation is upon the husband to provide for the support of his wife and their infant children, and, as between the husband and wife, the latter is not bound to maintain her husband and children during his life out of her separate property, even although his means maybe inadequate. Hodgens v. Hodgens, 4 Clark & Fin., 323; S. C., House of Lords, 11 Bligh, N. R., 62. But when the income of the wife has been applied with her consent to the maintenance of the family, she can make no claim for reimbursement out of the husband’s estate. The question was considered in Jacques v. The Methodist Episcopal Church, 17 Johns., 548, where it was held by the court of errors, reviewing the decision of the chancellor, that where the wife agreed, by paroi, before marriage, concurrently with the making of a marriage settlement, to defray the expenses of the family establishment out of her separate estate, the husband is not only not accountable for the moneys received by him of his wife, and expended for that purpose, but was entitled also to an allowance for all advances made by him for that object.

In the present case the agreement entered into by the wife was, in substance, to share with the husband in defraying the expenses of herself and the family, and to reimburse him for advances made by him for her under the arrangement. There was a technical consideration for her promise, in the payment by the husband to her of a gross sum of money for expenses, to be applied in her discretion, which he was not bound to do under his common law obligation to support his wife and children. In considering the equity of the arrangement, it is an important fact that the income which the wife pledged for her husband’s reimbursement came from the bounty of her husband’s father, and that it was the intention of the testator that she should apply it for the maintenance and support of herself and her children.

It is not necessary to decide whether under the quite peremptory terms of the will the wife took the income charged with a trust, enforcible in favor of the children to the extent necessary for their support and maintenance, although there are many authorities which at least give color to this contention. Bonser v. Kinnear, 2 Giff.,195; Pushman v. Filliter, 3 Ves., 7; Leach v. Leach, 13 Sim., 304; Raikes v. Ward, 1 Hare, 445; Woods v. Woods, 1 Myl. & Craig, 401; Carr v. Living, 28 Beav., 644; Cole v. Littlefield, 35 Me., 439; Chase v. Chase, 2 Allen, 101. But see Clarke v. Leupp, 88 N, Y., 228, and Byne v. Blackburn, 26 Beav., 41.

H there were no other circumstances • bearing upon the general equities than those already stated, it seems to us that the contract made by the wife for reimbursement of the advances made by the husband was reasonable and just and ought to be enforced. There is certainly no moral reason for forbidding a wife having a separate estate to contribute thereout to the support and maintenance of the family, or contract to do so. There was sufficient consideration for her agreement in this case, and the terms of the gift to her in the will of the plaintiff’s father imposed upon her a moral duty to carry out his intention. She, instead of the son of the testator, received the share of the estate which, under ordinary circumstances, would have gone to her husband. Why the son was excluded from the bounty of the father does not appear. But we think facts were offered to be shown on the part of the defendant, which the referee excluded, material to the inquiry, whether the contract in question ought in equity to be enforced. The defendant offered to prove that between the time of the separation of the parties in September, 1884, and the death of the wife, in July, 1885, the latter expended in the support of herself and her children a sum exceeding the entire income to which she was entitled under the will, including both the amount paid to her in her life-time and that received by her administrator after her death, and further, that the debts owing by the wife at her decease exceeded the sum collected by her administrator from the estate of the testator on account of income accrued, but unpaid at her decease. H the wife expended for the support of he;self and her family an amount equal to or exceeding the whole income which accrued to her under the will, there would seem to be no equity in the claim of her husband for the enforcement of the contract in question.

The fact that he made advances for the maintenance of his family, and exacted from his wife a promise of reimbursement, gave him, we think, no equitable claim against his wife’s estate, under the circumstances offered to be proved. His advances under those circumstances ought to be treated as if made in fulfillment of his general marital obligations. We think both facts were competent as bearing upon the equity of enforcing the contract. Whether the wife actually applied, out of her own means, in support of the family, a sum equal to or greater than the income which accrued to her under the will, or obtained supplies in part on her own credit, contracting debts therefor which were unpaid at her death and became a charge on her estate, is not material. In either case there would be no equity in the plaintiff’s claim.

The fact that this is not a proper proceeding for ascertaining the debts owing by Mrs. Hendricks at her death is unimportant. The creditors will not, it is true, be bound by any adjudication as to their debts in this proceeding. But the plaintiff having presented his claim and demanded judgment therefor against the estate of his wife, it was competent for the administrator, in answer thereto, to show any facts which tend to prove that it has no legal or equitable foundation.

We think the judgment of the general and special terms should be reversed and the case remitted to the surrogate for further proceedings.

All concur, Danfobti-i, J., in result.  