
    Mortimer Hendricks, App’lt, v. Montefiore Isaacs, as Administrator, etc., Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 27, 1887.)
    
    1. Husband and wife—Agreement between for support—What constitutes A CONSIDERATION.
    The plaintiff entered into an agreement with his wife to advance money for the support of the family, provided she would repay him the same. She assented to the advancement and use of the money on these terms. Held, that was a sufficient consideration within the acknowledged legal rule applicable to the case, to support a recovery.
    
      % Same—Right of the husband to sue the wife in equity.
    
      Held, that while at common law no action could he maintained upon such an agreement by the husband against the wife, this rule has not been followed in courts of equity. In those tribunals, where an agreement has been entered into between the husband and the wife on a fair and just consideration, he, as well as the wife, has been entitled to seek redress through the instrumentality or under the principles of a court of equity.
    The judgment from which this appeal has been taken was recovered on the report of a referee.
    
      Abram, Kling, for app’lt; William Man, for resp’t.
   Daniels, J.

—The plaintiff was the husband of the deceased intestate. His father died leaving an estate of about one milhon of dollars. _ Ho part of the estate was given to the plaintiff, but the will directed the executor: “After the payment of $15,000 per annum to my wife Rachel, during her natural life, then to pay over and distribute the residue of such rents, issues, interest and income during the natural hfe of my said wife to and among my five children and my daughter-in-law, Justina B. Hendricks, or so much of them that shah be living, and the lawful issue of such of my said five children, and of my said daughter-in-law by her present husband, as shah be dead, “ * * it is also my will that whatever moneys may be received by said Justina B. Hendricks under this clause, are to be by her applied to the maintenance and support of herself and of the issue by her present husband. ”

This money directed to be paid to Justina B. Hendricks, the wife of the plaintiff, was not immediately available after the decease of the testator. The plaintiff and his wife disagreed, and he seems to have been unwilling to provide for the support of herself and the family, but he was induced to make advances of money from time to time which were used for the common benefit of the family, besides other moneys which he supplied for that purpose. These moneys were advanced upon written instruments, being six in number. The first was in the following form:

“Lorn Branch, May 26, 1884.

“Received from father an advance of two hundred dollars, to be repaid him from the interest due mother when received by her, arising out of the estate of M. M. Hendricks, deceased.

“$200. ' “ROWENA HENDRICKS.

“I concur and agree to this.

“J. B. Hendricks.”

And the other five of the same tenor and effect. After the decease of the wife moneys passed into the hands of the defendant as her administrator, which were derived under this provision of the will from the estate of the plaintiff’s father. And to recover those moneys, or obtain satisfaction out of them for the moneys mentioned in these instruments, as far as that could be done, was the object of this proceeding. But the referee held adversely to the plaintiff and directed a dismissal of the proceedings.

In giving his direction he acted under the conviction that there was no consideration for either of these instruments, and that they were inoperative between the plaintiff and his wife. But while it is true that it was the duty of the plaintiff to provide the means for the support and maintenance of the family as far as he had the ability to do that, he had for some undisclosed reason taken a position adverse to the performance of that duty. He and his wife had disagreed, and the result of the disagreement was this disinclination on his part. And while the plaintiff and his wife maintained this relation between themselves, he consented to advance the moneys evidenced by these several instruments, provided they should be repaid to him out of the interest which his wife was entitled to under the will of his father. And she assented to the advancement and use of the money on these terms. That was a consideration within the acknowledged legal rule applicable to the case sufficient to support these instruments as agreements if she obligated herself , in his favor for their performance.

It was clearly the design of the testator that the moneys which she should receive under his will should be applied to the maintenance and support of herself and her issue by the plaintiff. That was the object and the sole object to which the moneys were to be appropriated. But as they were not available at the time for this use, her daughter, with her concurrence and agreement, obtained these several sums of money from the plaintiff by way of anticipation, intending that he should be reimbursed when the moneys should be derived for that purpose under the will of his father There was a direct appropriation of these moneys to the repayment of the advances. The agreement is express that they were to be repaid from the interest due the intestate when received by her arising out of the estate of M. M Hendricks, deceased. And while this agreement was made by the daughter it received the concurrence and additional agreement of the intestate herself, which rendered her as liable for its performance as though she was the only party to the instruments upon which the money was advanced.

The referee seems to have acted, as the counsel have been impressed in their argument of the appeal, with the conviction that the liability of the intestate, and of her estate, so far as it' has received these moneys, depended upon the construction and effect of the statutes of this state relating to the property and rights of married women. But that is a mistaken theory of the case.

These parties resided at Long Branch, in the state of New Jersey. The moneys were advanced and used there in the family of the plaintiff and the intestate, and the statutes of this state, therefore,have no application whatever to, or control over the case. And as no statute of the state of New Jersey has been proved or read in the proceeding the right of the plaintiff to maintain it must depend upon the general principles of equity which have been applied to the solution of controversies arising between husband and wife. At the common law no action could he maintained upon such an agreement by the husband against the wife, but this rule has not been followed in courts of equity. In those tribunals, where an agreement has been entered into between the husband and the wife, on a fair and just consideration, he, as well as the wife, has been held entitled to seek redress through the instrumentality or under the principles, of a court of equity. And while this is a proceeding as distinguished from an action, the same principles apply to its disposition as might be invoked if a formal action had been brought to secure the redress claimed by the plaintiff. And in such an action under the authorities, a recovery may be had in the husband’s favor under circumstances of this description. A point quite similar to this was con sidered in More v. Freeman (Bunbury’s Reports, 205). There the wife separated from the plaintiff, who was her husband, and her father had devised for her benefit by his will, made in the year 1696, £6,000 to trustees to pay both the principal and interest to such person or persons as she should by deed in writing, subscribed by two or more witnesses, appoint, her husband not to intermeddle therewith,, nor the same to be subject to his debts After the making of this will and while these parties continued to live in a state of separation, the husband obtained the temporary possession of his wife, and they then entered into an agreement that she should be permitted to live separate and apart from him and that she would settle upon him for his life £200 per annum, and also pay him the sum of £1,000 out of her separate estate- This agreement was reduced to writing and witnessed by four persons, and one payment made upon it. The wife afterwards brought an action to set aside the articles, or in case of a failure to obtain that relief, that the husband should make his election to receive £300 per annum. A cross bill was filed by him to carry the articles into execution. Before the cause was finally heard and decided she died and the proceedings were revived against her executor, and the agreement having been found upon an issue, not to have been obtained by duress, its binding validity was sustained by the court and a decree made in favor of the surviving husband. The executor appealed from this decree to the house of lords, where it was affirmed with costs. This case is quite similar in its leading features to the controversy presented by this appeal, and it certainly seems to be a direct authority in favor of the plaintiff’s right to recover these moneys.

In Cannel v. Buckle (2 P. Wms., 243), a bond had been executed by the wife before her marriage to her prospective husband for the conveyance of lands to him in fee. The marriage afterwards took place, but the lands were not conveyed in compliance with the obligation of the bond. A bifi was filed by the heir of the husband after his decease, against the heir of the wife, who was also deceased, for the specific performance of the agreement to convey, and it was held to be a good agreement in equity, though void at law, and such a conveyance decreed by the court.

In Livingston v. Livingston (2 John. Chy., 537), the husband agreed with his wife to erect a house on a lot of land to be purchased in her name, the cost of which was to be borne and paid out of the proceeds of another house and lot owned by her He performed the agreement on his part but his wife died without disposing of the other house and lot, and he filed his bill against the children, to whom the property had descended, for the performance of the agreexnent. And in the disposition of the case the court, after examining the authorities, decreed a sale of the house and lot, directing the husband to be reimbursed out of the proceeds for the expenditures he had made under the agreement. Those authorities fully sustain the validity in equity of an agreement made between the husband and the wife, entitling him to its performance where he is the party to be benefited by its provisions, and support the right of the plaintiff to indemnity for the moneys advanced by him, so far as but no farther than those received by her administrator from the estate of his father, may be sufficient for that purpose.

Instead, therefore, of the proceeding having been dismissed, as it was, the referee should have held the plaintiff entitled to recover. And, for the error intervening in the failure to do so, the judgment which has been recovered should be reversed, and a new trial ordered, with costs to abide the event, on which the amount of moneys in the hands of the defendant applicable to these obligations may be ascertained and appropriated to the payment of the plaintiff’s demands.

Van Brunt, P. J., and Bartlett, J., concur.  