
    Frederick Hall White, an Infant, by Guardian, Plaintiff, v. Josiah J. White, Defendant.
    (Supreme Court, Kings Special Term,
    June, 1897.)
    Antenuptial contract — Separate property — Privity of an heir-at-law. • Where a resident of a foreign state, before her marriage to a citizen of this state, enters into an antenuptial contract under seal, which, after reciting her ownership of personal property and also that of real property in several states, provides that she, in consideration of the marriage, shall forever retain possession and control of all her estate, real and personal, and that her husband will not make any claim against it nor to its income, and will permit it to pass by her will to her devisees, or, by descent, to her heirs-at-law, as it would have passed had she remained single and unmarried, and the wife makes a similar agreement in respect to the property of the husband, and subsequently dies intestate, the infant child of the marriage is sufficiently in privity with his mother, by virtue of his relationship, to enforce rights under the contract, and to maintain an action, by a guardian, to compel his father to deliver up premises which belonged to his wife and which he now claims to hold as tenant by the curtesy.
    This is an action of ejectment. The plaintiff, thirteen years of age, is the son and only heir of the defendant and his deceased wife. The house and lot in question was the property of the said wife before the defendant married her. She was a resident of the state of Oonnecticut, and he of the state of Hew York. They entered into an antenuptial contract of specialty, which recited that she was the owner of personal property, and also owned real property in the states of Oonnecticut, Wisconsin, Hew York and elsewhere, and in which he agreed that she in consideration of the marriage “ may and shall retain and keep possession of and control over all her said estate, real and personal, and that the same shall be- and remain hers and to her sole and separate use forever; and that I will not exercise or attempt to exercise any dominion- over any part of said estate, nor will-I claim any interest therein, or in the income thereof, or in any part of said income; ” and that in case of her death “ I will not claim to have or pretend to have any right or interest in or to any part of her said estate or of said income, but will permit the same to pass by her will to her devisees, or by descent to her heirs-at-law as the same would pass if she had remained single and unmarried; ” and she correspondingly agreed in respect of his property. She died intestate. The family was living in the said house at the time of her death, and father and son have continued to reside there; A guardian of the plaintiff’s property was appointed,- and demanded possession of the said house of the defendant, which he refused to deliver. Hpon petition of the said guardian the guardian ad litem was thereupon appointed to begin and prosecute this action.
    George S. Ingraham, for plaintiff.
    Josiah T. Marean, for defendant.
   Gaynor, J.

It is contended for the defendant that the ante-nuptial agreement is executory; that the plaintiff cannot maintain this action without a release or conveyance to him of the defendant’s estate by the curtesy; and that as the defendant did not agree to make such a conveyance, but only to passively permit the property to pass by descent, he cannot be required to make it, or be deemed as having made it, upon the equitable principle of deeming that clone which should be done.- Justice requires that the contract be otherwise -interpreted if- possible, for its plain intention is that defendant should not have an estate, by the curtesy. The agreement not to assert any right or interest after the wife’s death, but to let the estate pass, coupled with the prior part, shows that the words first used had reference to the death of the wife as well as to her lifetime. So viewed, the contract became an executed agreement in all respects upon the marriage, and the defendant became by it incapable of having an estate by the curtesy, either initiate or consummate. The intention was to avoid the laws of coverture, descent and distribution, and the agreement executed that purpose so soon as made. Neves v. Scott, 50 U. S. 196; Matter of Young, 92 N. Y. 235.

It is also contended that the plaintiff cannot claim under the contract, for want of privity. In Lawrence v. Fox, 20 N. Y. 265, and kindred cases, the holding is that if A. owes B., and takes the agreement of 0. to pay the debt, B. may maintain an -action against 0. upon such agreement. The legal obligation of A. to B. makes B. privy to the contract for his benefit of A. with 0. In Vrooman v. Turner, 69 N. Y. 280, no such legal obligation existed of A. to B., for which reason it was held that B. could not sue 0. upon the agreement for lack of privity. These two cases by contrast show the rule with precision, and all misconception of it comes from looseness of statement in other cases. There was no legal obligation of the mother to havé her lands descend to this son free of the estate by the curtesy, and that element is lacking to make a privity between him and his father through the antenuptial contract. But it seems that the rule of privity through legal obligation does not apply to contracts like this. King v. Whitely, 10 Paige, 465. The necessary privity is had here through the land itself, and the laws of descent. The antenuptial contract runs with the land. Heirship suffices to establish privity here, as a deed of conveyance by the wife would have done for her grantee, assuming that our statute allowing married women to convey as if sole had not existed. Moreover, mere relationship "alone will make such privity. Schouler on Hus. & W., § 249; Michael v. Morey, 26 Md. 239; Schemerhorn v. Vanderheyden, 1 Johns. .139; Shepard v. Shepard, 7 Johns. Ch. 57; Todd v. Weber, 95 N. Y. 181. In the Sehemerhorn and Shepard cases there was no privity except by relationship between the promisee and the third person. The lack of precision of statement in the Todd case may defy any attempt to ascertain from the very much said upon'what ground the privity of the plaintiff there to the contract of the deceased with-the plaintiff’s relatives was put, but it must have been upon her relationship to them or nothing; for the case did not change the law in respect of the requirement of privity, as the later decisions of that court show: In none of these cases was there any legal obligation from the promisee or covenantee to the third person.

Ho ground seems to be stated for the objection that the defendant has a right to retain possession, because the infánt says he may. The guardian of an infant’s property is not subject to the restraint of the infant’s wishes or agreements.

Judgment for the plaintiff.  