
    Merritt v. Merritt.
    
      (Supreme Court, General Term, Third Department.
    
    March 15, 1892
    1. Jurisdiction of County Court—Equitable Action—Evidence.
    By an antenuptial agreement the prospective wife relinquished all of her contingent dower rights in the property of the husband, in consideration that her support should be made a charge and lien on his estate. After the marriage the husband conveyed his property to his children, taking from each a bond conditioned for his support and that of his widow after his death. Held, that an action by the widow on one of those bonds to enforce its provision in her favor was an action at law, and not an action in equity to enforce the antenuptial agreement, and that, therefore, the county court had jurisdiction.
    3. Same—Accounting.
    The fact that similar bonds of the other children were offered in evidence for the purpose of determining the quota which defendant was liable to contribute to plaintiff’s support did not constitute an accounting which would change the action to an equitable proceeding.
    Appeal from Sullivan county court.
    Action by Esther A. Merritt against Martin Merritt. From a judgment for defendant, plaintiff appeals.
    Beversed.
    Argued before Putnam and Herrick, JJ.
    
      George H. Smith, for appellant. T. F. Bush, for respondent.
   Herrick, J.

This action was brought in the county court upon the following state of facts: On the 8th day of May, 1869, the plaintiff, whose maiden name was Esther A. G-illet, entered into an antenuptial contract with Martin F. Merritt, the defendant’s father, by which, in case of their intermarriage, the plaintiff agreed to release all her claim to dower or third interest in the property of said Martin F. Merritt, both real and personal, and in consideration thereof the plaintiff was to receive her support during life in case she survived him, such support to be a charge and lien upon his property; and the said Merritt made it, by said agreement, “incumbent upon his said heirs, so long as she and they, or either of them, can satisfactorily agree that they shall make such provision for her, the said second party; and, in case they fail to provide for said second party’s maintenance as comfortably as when she was the wife of said first party, that in that case the said second party is to -make provision for herself, and the expense thereof to be a charge upon any and all of my real estate or property that I no w own or may hereafter acquire, notwithstanding any contract, deed, or will that I may hereafter make, or suffer to be made;” and he further agreed that such agreement should be a lien upon any and all of his estate, both real and personal; that such agreement was delivered to the plaintiff, May 8, 1869, and recorded in the Sullivan county clerk’s office, September 8, 1874; that on the same day the plaintiff executed and delivered to the said Martin P. Merritt, in consideration of said antenuptial agreement, and of his marrying her. a release of all claims to dower or third in any and all property the said Merritt might die seised of, both real and personal, which release was recorded in the Sullivan county clerk’s office. Shortly after the execution of said agreement and release, the plaintiff married the said Martin F. Merritt, and they thereafter lived together as husband and wife until his death, January 14, 1890. The complaint alleges that at the time of such agreement and marriage, Martin P. Merritt was the owner and in the possession of a large amount of property, both real and personal; that in the month of April, 1883, the said Martin P. Merritt transferred to four of his sons, including the defendant, various pieces of property, and in ISTovember and December of the same year he transferred to three other children various other property, and thereby his said children became the owners and possessed of all the property of said Martin F. Merritt; that at the time of such transfers, and as a part consideration therefor, the children of Martin P. Merritt executed and delivered to him their several bonds, conditional that, in case the plaintiff should survive'the said Martin F. Merritt, they would each contribute his and her pro rota share towards the plaintiff’s support as long as she should live. Upon the trial the antenuptial agreement and release were put in evidence; also a deed of real property from Martin P. Merritt and the plaintiff, his wife, to the defendant, dated April 7, 1883; also a deed from the same party to the defendant and two other children of Martin P. Merritt of other real property, dated April 25, 1883. Plaintiff also put in evidence a bond executed by the defendant to Martin P. Merritt, dated April 25, 1883, which recites that Martin P. Merritt has conveyed lo Martin Merritt certain real estate, on condition that Martin Merritt shall contribute to the support of Martin F. Merritt during his life, and shall also contribute to the carrying out of the antenuptial contract between plaintiff and Martin P. Merritt. It recites the amount that shall be paid to Martin F. Merritt during his life-time, $62.50 annually, and after his death to contribute his due share, according to the property he has then received, to carry out said antenuptial contract. The plaintiff offered in evidence similar bonds executed by the other children of Martin P. Merritt, who, it was claimed in the complaint, had received conveyances of his property. The plaintiff also offered in evidence deeds from Martin F. Merritt and the plaintiff, his wife, to the said several children of Martin F. Merritt. Upon the objection of the defendant, the court refused to admit either the bonds or deeds in evidence. Other evidence was offered by the plaintiff that was not received by the court, but as to which there is no occasion to advert now, it apparently being rejected for the same reason that the court refused to receive the bonds and deeds. In rejecting the evidence, the court said: “This action is virtually to obtain an enforcement of the antenuptial agreement. It is no doubt proper and right that this defendant, with the other heirs and next of kin, should carry out that antenuptial agreement, so far as it binds them, but, if they refuse to do it, the remedy is for an enforcement of that agreement, and pertains entirely to a court of equity.” At the close of the evidence of the plaintiff, the court directed the dismissal of the complaint. I do not think the action is one in equity; it is an action to enforce the condition of the bond. Under the antenuptial agreement, the plaintiff was given a lien upon Martin F. Merritt's property to enforce it. By uniting with her husband in the deeds to his children, she released all lien she had upon the property described in those deeds, and the several bonds taken by the husband, so far as she was concerned, were substituted for the lien given by the antenuptial agreement. The agreement to support the father, and to carry out the terms of the antenuptial agreement, w'ere the consideration for the conveyances to the children. The plaintiff, in turn, contributed her share of the consideration •moving the children to execute their several bon is, by her signature to the deeds; and she had a right of action to enforce those conditions in the bonds ■that were intended for her benefit. Arnold v. Nichols, 64 N. Y. 117; Todd v. Weber, 95 N. Y. 181; Rector, etc., v. Teed, 120 N. Y. 585, 24 N. E. Rep. 1014. The amount the defendant was to contribute was to be determined ac-. •cording to the property he had received from his father. The other bonds,1 offered in evidence and rejected, were stated to be for the same purpose as the one given by the defendant. In other words, each one who received a share of the father’s property was to contribute to the plaintiff’s support in an amount proportioned to the share of the estate he or she received. Hence, in determining the proportion that was due on the defendant’s bond, it became competent and material to show a like agreement on the part of the other children, and the amount of the property each one had received; and the bonds and •deeds so executed were, I think, admissible in evidence for the purpose indicated. The reception of evidence to determine the defendant’s “due share, -according to the property he has received, ” does not constitute an accounting which changes the action to a proceeding or action in equity. I think the trial court erred in holding that the action was one in equity, of which the ■county court had no jurisdiction, and that it also erred in rejecting the bonds and deeds offered in evidence by the plaintiff, and that for such errors the judgment should be reversed, and a new trial granted, with costs to abide the ■event.  