
    Pierre Rieben, husband of Eliza Hicks Rieben, deceased, appellant, vs. Hannah T. White, and John J. Merritt, administrator &c., and others, respondents.
    
    A trust for the benefit of an unmarried female, accompanied by a limitation of the income of the trust property to her sole and separate use, for life, free from the control or interference of any future husband, created prior to the acts of 1848 and 1849 for the more effectual protection of the property of married women, will prevent a husband whom she may marry subsequent to those acts, from acquiring, by the marriage, any vested rights, in the wife’s lifetime, in or to her savings from her income. And those acts give to the wife the power to dispose of such savings, by will.
    If she dies without having disposed of such sarongs, or of the property arising therefrom, by will or otherwise, her husband, on her death, will be entitled, in his marital right, to such savings or property. Ber Sutherland, J.
    APPEAL from a decree of the surrogate of the county of Hew York, made on passing the accounts of John J. Merritt, administrator &c. of Eliza Hicks Bieben with the will annexed. Samuel Hicks, father of the testatrix, died in the city of Hew York in 1837. He devised to his executors a house, &c. on Broadway in trust, among other things, to receive the rents and profits thereof, and pay the same over to her as received, during her natural life. He also bequeathed to his executors $100,000 to be invested and the income paid over to the testatrix during her life. In the event of her marriage, he directed that the income of the said personal fund “and also the rents and profits of said house, &c. be paid to her on her separate receipt, as a voucher, and for her sole and separate use and benefit, and free from the control, debts or interference of her husband.” And upon her death without issue, “then in trust to pay over one half thereof, to wit, $50,000, to such person or persons, whether her husband (if she be married) or otherwise, as she may by last will and testament appoint.” The testatrix married Pierre Reiben, the appellant, December 15, 1847, and died without issue May 20, 1855. Letters of administration, with Tier will annexed, were issued to John J. Merritt, October 6, 1857. The sum of $50,000, over which Mrs. Rieben had said power of appointment, remains in the hands of her father’s executors, to be accounted for by them, with interest from her death, to the person or persons who may be entitled to the same. Certain clothing, jewelry and personal effects, valued at $4392.91, in Mrs. Rieben’s possession at her death, which were purchased by her out of the savings of her income under her father’s will, were bequeathed in her will to her cousins, Elizabeth White and Sarah Hicks White. Merritt, the administrator, delivered these articles to said legatees accordingly. The surrogate’s decree, now appealed from, allowed and approved this disposition. Mr. Rieben’s counsel objected to the decision, before the surrogate. And he, in like manner, objects to the same on this appeal. Merritt, as administrator of Mrs. Rieben, cited the father’s executors to account, and on May 9, 1858, obtained a decree against them for the income of her separate estate not previously paid over to her. The whole fund in the hands of Merritt, as administrator, and for which he was held or claimed to be accountable in the present proceedings, was shown to be “savings of income of the fund and land held in trust for her [Mrs. Rieben] under the will of her father.” Mrs. Rieben’s will is dated May 19, 1855. It takes no notice of her father’s will. Its material parts are in the following words : “In this my last will, I give to my husband, Pierre Rieben, $50,000; to my aunt, Hannah T. White, $20,000, to buy a house; to my cousin, Samuel Hicks Seaman, $5000; to my cousin, Maria W. Corlies, $1000; to Fanny Haff, $1000 ; to Luther Terry, [of Rome,] as a trifling return for his many acts of brotherly kindness, $5000. The remainder to be equally divided between my cousins, Elizabeth White, Sarah Hicks White and Cornelia White.” The surrogate by his final decree, made Hovember 7,1860, directed the administrator to pay $34,575.51, being the whole sum in his hands, among Mrs. Rieben’s said legatees pro rata. On behalf of the husband, it was objected in the petition of appeal that the wife had no power to bequeath the savings of her separate estate, but that the same was his individual property, by virtue of his marital right as husband of the testatrix, and became vested in him absolutely, by law, by, upon and in virtue of his marriage with her prior to the enactment of the married woman’s acts of 1848 and 1849; and that no will made by her could dispose of said property. And it was contended that the will made by Mrs. Rieben was merely an execution of the power of appointment as to the $50,000, conferred upon her by her father’s will. It does not appear by the return in any way, directly or indirectly, nor could it be inferred, that any portion of the funds which came to the hands of Merritt, the administrator, were savings from Mrs. Rieben’s antenuptial income. The objections presented by Mr. Rieben to the administrator’s account were in writing. They suggested no such'point, but merely claimed that the whole income of the provision made by her father for her use became the husband’s property jure mariti, and that “ any will executed by Mrs. Rieben could only affect the” $50,000 of capital over which she had a power of appointment.
    
      Pierre Rieben, the husband of the testatrix, appealed from the decree of the surrogate.
    
      Edw. F. Delancey, for the appellant.
    
      C. O’Conor, for the respondents.
   By the Court,

Sutherland, J.

The trust property, (the $100,000 and the real estate on Broadway,) to the income of which Mrs. Rieben was entitled under her father’s will, was not vested in her in her lifetime, but in her brothers as trustees ; and by the terms of the trust she was to have the income thereof, during her life, for her sole and separate use.

It can not be said, I think, that her husband, by the marriage, acquired in her lifetime any vested right to, or interest in, the income, or her savings out of the income; for in equity the income and savings were protected from her husband and his creditors, by the trust, and the limitation of the income to her separate use. (Jagues v. Methodist Fpis. Church, 17 John. 548. Molony v. Kennedy, 10 Simons, 254. Proudley v. Fielder, 2 My. & K. 57.) The last two cases, which are referred to by the counsel for the appellant, also show that even such part of the savings or such property existing from the savings, as may have been in the actual possession of Mrs. Rieben at the time of her death, whether cash, bank notes, or chattels, was her sole and separate prop=erty, and as such protected against her husband in her lifetime, equally with the savings or accumulations of the income, in the hands of her brothers, and which had never been paid over to her.

It appears by the English cases that not only the post-nuptial, but also any ante-nuptial savings out of the income of the trust property limited to her sole and separate use, would have been considered her sole and separate property, and as such would have been protected, in her lifetime, from her husband. (Newland v. Paynter, 4 Myl. & Craig, 408, 417, 418. Davis v. Thorneycroft, 6 Simons, 420. 2 Story’s Eq. Jur. § 1384, 7th ed. and cases there cited.)

It appears from the return of the surrogate that the clothing, jewelry &c. specifically bequeathed by Mrs. Eieben, were purchased by her from the savings of the income limited to her sole and separate use, and that all the moneys and securities in the hands of her administrator with the will annexed, came from like savings.

Except the $50,000, over which she had the general power of appointment, it is to be inferred that Mrs. Eieben could not dispose of, and did not intend by her will to dispose of, any property which did not arise or come from these savings. Probably it should be inferred, from the return, that these savings were all post-nuptial.

It can not be doubted, if Mrs. Eieben had died without having disposed of these savings, or the property arising therefrom, by will or otherwise, that her husband, on her death, would have been entitled, in his marital right, to such savings or property. (Stewart v. Stewart, 7 John. Ch. 229. Molony v. Kennedy, 10 Simons, before cited. Ransom v. Nichols, 22 N. Y. Rep. 114. Rider v. Hulse, 33 Barb. 264. S. C. 24 N. Y. Rep. 372.) Nor can it be doubted, I think, if her marriage had taken place subsequent to the act of 1849, amending the married woman’s act of 1848, that Mrs. Eieben could have disposed of such savings, or property, by will, under the acts, though her separate property, not by the acts, but by the trust, and the limitation of the income of the trust property to her sole and separate use.

But it is insisted, on the part of the appellant, as the marriage took place before the amendment of the act of 1848, by the act of 1849, so as to give the power of devising, that by the marriage he acquired vested “rights, which could not be interfered with or taken away by her will, under the acts. In my opinion the trust, and the limitation of the income of the trust property to the sole and separate use of Mrs. Eieben, prevented his acquiring, by the marriage, any such vested rights in her lifetime, or to her savings from the income. I think the right which he did acquire by the marriage to succeed to the savings of her sole and separate income, in case he survived her, and in case she did not dispose of them by will or otherwise, was not,, and can not be called, a vested right, so as to raise the constitutional question. I think, while the trust and the limitation of the income of the trust fund and property to her sole and separate use, protected her savings from the income from her husband, in her lifetime, and prevented him from acquiring by the marriage any vested right, in her lifetime, to or in these savings, the married woman’s acts gave her power to dispose of them by will. I see nothing inconsistent in the two parts of this proposition. I think the cases of Westervelt. v. Gregg, (2 Kern. 205,) and Rider v. Hulse, (supra,) do not apply, because the savings were the sole and separate property of Mrs. Rieben,- by the trust and the limitation of the income of the trust property to her sole and separate use. In Rider v. Hulse, (33 Barb. 267,) Justice Brown says: “The effect of the acts of 1848 and 1849 upon such estates [estates settled upon a married woman for her sole and separate use] is to convert the equitable into a legal title in the wife, when there are no trustees, and when there are trustees vested with the legal title, to authorize a conveyance thereof to the wife under the limitations prescribed in section two of the act of 1848. It results, therefore, from this view, that if the choses in action in controversy, or the money and property which they represented, was the separate estate of Elizabeth Ryder at the time the acts referred to took effect, the plaintiff has no title thereto, which he can assert, as against the bequest of the wife, because the act of 1849 expressly authorizes a married woman to convey and devise real and ¡Dersonal property, and any interest and estate therein, in the same manner, and with the like effect, as if she were unmarried.”

I see no reason to doubt the correctness of this view of the operation of the acts of 1848 and 1849, as to the sole and separate estate or property of a married woman, when the acts took effect.

[New York General Term,

November 7, 1864.

My conclusion is, that the decree of the surrogate should he affirmed, with costs. .

Decree affirmed.

Leonard, Geo. G. Barnard and Sutherland, Justices.]  