
    BURKE against VALENTINE.
    
      Supreme Court, First District ; General Term,
    
    
      Nov., 1868.
    Teh AHOY BY THE CURTESY.—MARRIED W OM AH’S ACTS.— COHSTRUCTIOH OE WlLL.—TRUST.—SlTSPEHsioh oe Power oe Aliehatioh.
    The estate of tenancy by the curtesy still exists in this State, notwithstanding the statutes of 1848 and 1849, known as the Married Woman’s Acts. Those statutes have not interfered with the right- of the husband to the personal estate, or the estate by curtesy, in the real property of the wife, after her death, if not disposed of by her, either during life, or by will ' to take effect at her death.
    A direction in a will that all the residue of the estate shall remain in the hands of the executors, or under their control, for the use of the testator’s wife and children, while under age, and that after the youngest child shall have arrived at age, the same shall be divided among the children,—does not give the executors an estate in trust.
    Where it is apparent from the whole frame of the will that the testator did not contemplate any of his children dying before coming of age, but limited the distribution of the estate upon the majority of the youngest child, the bequest may be regarded dependent on the life or minority of that child alone, and is not void as suspending the power of alienation beyond the period of two lives.
    Appeal from a judgment in partition.
    John Valentine died, December 14, 1853, seized of certain real estate ; and left a ivill which contained the following clause, after providing for the payment of certain debts.and specific legacies : “Further it is my will, and I do order, that all’ my estate that may be left after paying the above expenses and legacies, when called for, shall remain in the hands of my executors, or under their control, and for the use of my wife and children, while under age ; and after my youngest child shall have arrived at the age of twenty-one years, my will is, and I do order, that all my property that remains when the youngest child becomes of age, shall be divided among my children, male and female, share and share alike, excepting the right of my wife, Eliza Valentine, hereinbefore mentioned.”
    At the time of his death, the testator left him surviving a widow and twelve children, six of whom were minors, and one of whom had married the appellant Burke, and died, after issue born alive, and before her father, intestate, and without having made any disposition of her interest in the premises. The testator’s youngest child, Caroline H. Valentine, attained her majority in' November, 1865.
    This action was brought by the appellant Burke, claiming as tenant by curtesy of his wife’s share of the testator’s real estate ; and by the appellants, Mrs. Brown and her husband, as heir-at-law of the testator. The defendants were, the widow of the testator, and the rest of the heirs-at-law and their respective husbands and Wives. The greater part of the rents and profits of the real estate was received by the widow until January, 1866. They were collected by three'of the defendants, sons of the testator, one of whom was, by order of court, appointed receiver of the estate. Letters of administration were duly taken out by the appellant Burke on the estate of his wife.
    The object of the suit was to set aside the provisions of the will referred to, and also to obtain a partition of, and to compel the defendants to account for rents by them collected from, the real estate in question. The several answers substantially admitted the facts, but denied the conclusions of law.
    The cause was tried at special term, before Justice Daniels, October 12,1866, who dismissed the complaint as to the appellant Burke, holding that the devise was valid, and that no estate in possession vested in his wife, and while allowing the partition asked, denied the prayer for an accounting. Exceptions to the findings were duly taken by the plaintiffs, who now appealed from the judgment.
    
      George R. Schiefflin and Elbridge T. Gerry, for the appellant Burke.
    —I. The intention of the testator evidently was, that his estate should not be divided, while any of his children were minors. (1.) He expressly declares, that it should remain in the hands of his executors for the use of his wife and children while under age. Of the latter there were six at the time of his death. (2.) He directed a division after the youngest child came of age. By this expression he did not mean his daughter Caroline who was in fact his youngest child, for he did not use her name. (3.) He simply meant his youngest child attaining the age of twenty-one; so that if Caroline died, the estate would still remain in trust until the next oldest child came of age (McSorley v. Leary, 4 Sandf., 414).
    II. This clause of the will was void under the Revised Statutes, for it suspended the power of alienation for more than two lives in being at the creation of the estate (Brewster v. Striker, 2 N. Y. [2 Comst.], 19-34 ; Post v. Hover, 30 Barb., 312 ; Vail v. Vail, 7 Id., 226 ; Amory v. Lord, 9 N. Y. [5 Seld.], 403 ; Tayloe v. Gould, 10 Barb., 388 ; Hawley v. James, 16 Wend., 61).
    III. If, as contended, the devise was void, the real estate descended to the heirs-at-law in fee simple, as tenants in common, subject to the dower. Mrs. Burke, wife of the appellant, was one of these heirs, had issue bom alive, and died intestate, and her husband, therefore, has an estate in her share as tenant by the curtesy. (1.) She had seizin in fact, for there was no prior estate to be determined, and if her children had survived, they would have inherited from her (Jackson v. Johnson, 5 Cow., 74 ; Gray v. Richardson, 3 Atk., 469 ; Chew v. Commissioner, 5 Rawle, 161 ; Robertson v. Stevens, 1 Ired. Eq., 247 ; Sterling v. Penlington, 7 Viner Abr., 150 ; Elsworth v. Cooke, 8 Paige, 643 ; 1 Greenl. Cruise, 141, and note). (2.) Tenancy by the curtesy still exists in this State, and the statutes relative to married women have not affected it where no adverse disposition of the real estate is made by the wife, either in her lifetime or by will (Woodbeck v. Havens, 42 Barb., 66 ; Ryder v. Hulse, 24 N. Y., 372 ; Laws of 1848, ch. 200 ; Laws of 1849, ch. 375 ; Hurd v. Cass, 9 Barb., 366 ; McCosker v. Golden, 1 Bradf., 64 ; Shumway v. Cooper, 16 Barb., 556 ; Smith v. Colvin, 17 Id., 157 ; Clark v. Clark, 24 Id., 581; Vallance v. Bausch, 28 Id., 633 ; Laws of 1860, ch. 90 ; Laws of 1862, ch. 172 ; Lansing v. Gulick, 26 How. Pr., 250 ; Jaycox v. Collins, Id., 496 ; Ransom v. Nichols, 22 N. Y., 110). (3.) The court erred in refusing to compel the defendants to account for the moneys collected by them out of the estate.
    
      C. A. Rapallo, for the appellants Brown.
    
      W. W. Niles and S. H. Thayer, for the respondents.
    —I. Tenancy by the curtesy no longer exists in this State (Colvin v. Currier, 22 Barb., 371 ; Blood v. Humphrey, 17 
      Id., 660 ; Sleight v. Read, 18 Id., 159 ; Billings v. Baker, 28 Id., 343 ; Benedict v. Seymour, 11 How. Pr., 176 ; Knapp v. Smith, 27 N. Y., 277).
    II. The clause of the will objected to suspends only the division of the estate; no trust is created by it (Doubleday v. Newton, 27 Barb., 431). It is during the minority of only one individual, who is distinctly designated (Butler v. Butler, 3 Barb. Ch., 304).
    III. The appellants Brown are not entitled to any accounting, because the receiver must himself account before the referee upon the partition.
   By the Court.—Ingraham, P. J.

—Two questions are submitted on this appeal.

1. Is the estate of tenancy by curtesy abolished as to subsequently-acquired property of a married woman, by the acts of 1848 and 1849 ?

2. If not, was there such an estate vested in the wife of the plaintiff Burke, as to entitle him to an estate by curtesy after her death %

. The property was devised by will in 1853, and, consequently, the title of the plaintiff’s wife, whatever it was, was subject to the operation of those statutes. The acts of 1848 and 1849 were intended to protect a married woman in the free use, enjoyment and disposal of her estate for her sole separate use, and provided that such property should not be subject to the disposal of her husband, nor be liable for his debts.

Neither of these statutes in words relate to the property or the right of any one in the property of the wife after her death, in cases where she has not conveyed the same during coverture, or devised the same to others after her death. In such cases it is very clear the husband could have no estate by the curtesy, because it would interfere with the right conferred upon her of conveying or devising the same or any interest therein. If thus, this estate of tenant by the curtesy is taken away, it is because it is inconsistent with the provisions of these statutes and the intent of the legislature in passing them.

The first case on this subject is that of Hurd v. Cass, (9 Barb., 366), at special term before Justice Mason, where he holds that the statutes of 1848 and 1849 have not taken away the husband’s right to the property after her death, if she has not by deed or will disposed of it. The reasoning in that case is founded on the proposition that ‘ those statutes have not and were not intended to alter the law of descent, or for any other purpose than to protect the property of the wife during coverture, and to empower her to convey by deed or devise. In Blood v. Humphreys (17 Barb., 660), Mason, J., held that the intent of these statutes was to place married women, as far as the lands which they held were concerned, on the same basis as unmarried females. In Shumway v. Cooper (16 Barb., 556), it was held that these acts did not interfere with the rights of the husband after the death of the wile, if she omitted to exercise her right of disposal, and therefore left the general statute, regulating the marital rights of the husband, in case of intestacy of the wife, in force. In Clark v. Clark (24 Barb., 581), Judge Marvin concurred with the case in 9 Barb., 366, and held that the statute under consideration did not deprive the husband of his rights as they existed previously, after the death of the wife intestate. If the legislature had intended to deprive the husband of these rights, it should have so declared expressly in the act. Lansing v. Grulick (26 How. Pr., 250), adopts the same conclusion, and holds that the right of tenancy by the curtesy still exists, notwithstanding the acts of 1848 and 1849, subject to be defeated by the wife by any disposition of the property in her lifetime by deed or will. In Jaycox v. Collins (26 How. Pr., 497), the supreme court at general term in the 7th district held that the estate of a tenant by the curtesy had survived the acts of 1848 and 1849. So in Vallance v. Bausch (28 Barb., 633), the general term in this district held that the right of succession to the personalty of the wife undisposed of by her at her death, remained in the husband. It was added in that case, “I think the •legislature intended to take away neither ” the right of succession to the personalty nor his estate as tenant by the curtesy in her undisposed-of realty.

In opposition to these cases, are Colvin v. Currier (22 Barb., 371), and Billings v. Baker (28 Id., 343). In the first case Justice Smith says : “ These acts repeal the common law giving the husband a right to the personal estate of the wife and a freehold interest in her inheritance, and subjecting the same to the payment of his debts.” In regard to this case it is proper to say the point was not necessarily involved, and this, therefore, is not to be regarded as authority. It is also in conflict with the case of Jaycox v. Collins in the same district, where the question was material to the decision of the case.

With this conflict of decision in the supreme court we must yield to the weight of authority, which is clearly in favor of the construction which holds that the estate of a tenant by curtesy still exists, notwithstanding the passage of the married woman’s acts.

We are not, however,. without an expression of opinion on this question from the court of appeals. In Ransom v. Nichols (22 N. Y., 110), the court holds that the husband has the right to recover and enjoy as his own, personal property of a married woman after her • death, which she has not disposed of. Bacon, J., says: “If she fail to make any disposition of the property by way of sale or by testamentary bequest, then the rules, which always prevailed before the statutes of 1848 and 1849 Avere enacted, take effect, and the husband has all the rights given to him by the common law and by those provisions of the revised statutes which have never been repealed by the later acts.”

The principle decided in this case is applicable to the one under consideration, and warrants the conclusion that the acts of 1848 and 1849 have not interfered with, or taken away the right of the husband to the personal estate, or the estate by curtesy in the real property of the wife after her death, if not disposed of by her, either during life, or by will to take effect at her death.

The second question is, whether Margaret E. Burke ever had such estate in the lands of the testator, as to vest in her husband an estate as tenant by the curtesy.

The wife of the plaintiff died in October, 1863.

The youngest child came of age in November; 1865. It is apparent from, these dates, that unless the will is declared invalid, no estate in possession vested in the plaintiff’s wife, at any time prior to her death. She was of age when the testator died, and she died before the youngest child arrived of age. She was one of the devisees in whom was the remainder after the death of the youngest child, but she had no possession, and was entitled to no possession under the will, until the happening of that event. The judge below found that the wife and minor children took a legal estate in the testator’s property, during the minority of the youngest child.

The provisions of the will are: “That all my estate that may be left, shall remain in the hands of my executors, or under their control, for the use of my wife and children, while under age, and after my youngest child shall have arrived at the age of twenty-one years, my will is, &c., that the same shall be divided among my children, share and share alike.”

It is objected to this provision that it is void, as suspending the power of alienation for more than two lives. This is partly based on the supposition, that the will created a trust in the executors. But I think the executors took no estate in trust.

As executors, they were directed to convert the estate into money, and to hold and manage the proceeds, but the interest and estate was in the wife and minor children. Each child had a share of the property while a minor, and the estate of such child ceased on reaching majority, and the share held by such child thereupon vested in the wife and other children who were minors.

In Post v. Hover (30 Barb., 312), on which the plaintiff relies, the provision of the will was that the children were not to take the estate until they severally attained the age of twenty-one years ; and the court held such provision suspended the power of alienation for their lives.

The other case of Savage v. Burnham (17 N. Y., 561), was of a similar nature. There the will created a trust in the executors, to remain during the life of the widow, and during the minority of six sons, and during the minority of four daughters, or until their marriage. In each of these cases, the alienation was suspended during the lives of more than two persons "by express provision in the will. The application of the rule, that when the language is capable of two constructions, one of which would be valid, and the other would make the will illegal, the former should prevail, draws the distinction between the present case and those before referred to, and such a construction is, I think, also consistent with the intent of the testator.

It is evident from the whole frame of the will, that the testator never contemplated the probability of any of his children dying before arriving at the age of twenty-one years; and he made no provision for the inheriting of grandchildren in case of such death, or any disposition of the share of any child in case of such an event.

He selected his youngest child, and made the estate to widow and minor children, limited on the minority of the youngest child. Under this construction, the limitation would be dependent on the life or minority of that child, and would vest at once in all the children living when either event happened (Butler v. Butler, 3 Barb., 304 ; Dubois v. Ray, 35 N. Y, 162).

This construction of the limitation is warranted by Hawley v. James (16 Wend., 119), where Ch. J. Nelsoít says: ‘“Youngest of my children and grandchildren,’ standing alone, might well enough refer to the youngest of each class and the clause in the will in that case was held bad, because it in addition said, “ the youngest living and attaining the age of twenty-one years,” by which the intent to apply it to all the children is apparent.

The conclusions to which I have arrived on these points, render it unnecessary to examine the other point made hi this case, as to the accounting.

Judgment affirmed. 
      
       Present, Ingraham, P. J., and Mullin and J. F. Barnard, JJ.
     