
    LOOMIS against RUCK.
    
      Supreme Court, Second Department, Second District;
    
    
      General Term, May, 1873.
    Married Women’s Note.— Negotiability.— Specific Charge on -Separate Property.
    
    A note made by a married woman, payable to her own order, and at a future date, and at a specified place, is negotiable, although it contain a clause making the amount of the note a charge upon her separate estate.
    
      John I. Loomis sued Martha and John Ruck, on a promissory note made by Martha, the wife of John, payable to her own order, and indorsed by her, and also indorsed by John, her husband. The note was in the usual form of a note to the maker’s order, and was payable four months after date, containing, however, after the words “valuereceived,” the following clause, “which is hereby made a charge upon my separate estate, the consideration hereof having been for the benefit of said estate.”
    The wife put in an answer in the action setting up among other things that she was a married woman at the time of making the note, and also alleging want of consideration, and duress or coercion by her husband.
    
      The referee found that she made the note with the clause in question, as alleged in the complaint, and that before maturity it was indorsed by her, and also by her husband, who delivered it to plaintiff for a valuable consideration, viz: an outstanding over-due note previously made by Buck for goods sold to Mm by plaintiff, on wMch plaintiff .had threatened suit. That the wife’s note was, as between her and her husband, an accommodation note, and not actually for the benefit of her estate, of which fact plaintiff had knowledge ; also that defendant was coerced into making the note, but that of this fact the plaintiff had no knowledge. .
    On these facts he found in favor of the plaintiff against both defendants.
    
      B. M. Stillwell, for the appellants.
    I. The wife could not make a valid promissory note except in her separate business, or for the benefit of her separate estate (Yale v. Dederer, 18 N. Y., 265 ; 22 Id., 450 ; Owen v. Cawley, 36 Id., 600 ; Corn Exchange Insurance Co. v. Babcock, 9 Abb. Pr. N. S., 156 ; S. C., 42 N. Y., 624).
    II. The instrument by which a married woman may charge her separate estate is not a promissory note within the law merchant. It must be a special contract (White v. McNett, 33 N. Y., 376, and cases above).
    III. Hence, plaintiff is not an indorsee, but only an assignee holding subject to equities.
    IY. The action would not lie in its present form against the married woman,-for the complaint in such an action must be special (Baldwin v. Kimmel, 16 Abb. Pr., 359 ; Corn Exchange Bank v. Babcock, above).
    
    
      Edward J. Maxwell, for respondent.
    I. As to the wife’s liability, cited and commented oh, the additional cases of Deck v. Johnson, 1 Abb. Ct. of App. Dec., 497 ; Barrett v. Lichtenstein, 39 Barb., 194 ; Story Eq. Jur., §§ 1396, 1399 ; Stewart v. Kerwall, 3 Mad., 387.
    II. Assuming, then, that the note was executed and delivered as stated, and that prima facie, it is a valid subsisting obligation, which might be enforced against her, will a recovery be defeated in this case upon her showing that it was procured from her by coercion of of her husband ? The answer is most decidedly a negative (Bank of St. Albans v. Gilliland, 23 Wend., 311 ; Youngs v. Lee, 18 Barb., 187 ; affirmed in, 2 N. Y. [2 Kern.], 551 ; Gould v. Segee, 5 Duer, 260 ; Purchase v. Mattison, 3 Bosw., 310 ; McBride v. Farmers’ Bank, 26 N. Y., 450 ; Brown v. Leavitt, 31 Id., 113 ; Bromley v. Walker, 51 Barb., 203 ; Pratt v. Coman, 37 N. Y., 440 ; Day v. Saunders, 3 Keyes, 347 ; Magee v. Badger, 30 Barb., 246 ; Vallett v. Parker, 6 Wend., 615 ; Morton v. Rogers, 14 Id., 575 ; Rockwell v. Charles, 2 Hill, 499 ; Hall v. Wilson, 16 Barb., 548 ; Osborn v. Robbins, 36 N. Y., 365 ; Swift v. Tyson, 16 Pet., 1 ; Chitty on Bills, 104, 105 ; 5 Bin., 469 ; 1 Bailey Re., 355 ; Edwards on Bills, 308 ; Id., 354).
    
      
       In Barry against The Equitable Life Assurance Society (Supreme Court; Special Term, February, 1873), it was held,—
      1. That a policy of life insurance, payable to a wife in case she survives her husband, and if not, then to their children, is not the separate property of the wife, within the rule allowing her to assign such property, especially where the premium was paid by her husband as a provision for his wife and children, and he did not consent to the assignment.
      2. That a stakeholder, admitting liability, is not bound to offer to pay the fund into court as a condition of being exonerated from costs, where a suit on the same cause of action is pending against him in another state.
      In this action, which was brought by Rosalie C. Barry against the Equitable Life Assurance Society, Wm. H. Bruñe and Horatio L. Whitridg e, the matter in controversy was the right of the plaintiff to recover the insurance money on a policy issued by the company, on the life of her husband, and in .terms payable to her in case she survived her husband, and if she did not, then payable to her children. Bruñe & Co. claimed the insurance . money by an assignment which the husband in his lifetime had, by undue influence procured the wife to make, and on the faith of which assignment Bruñe & Co., in ignorance of the fraud and undue influence, had given the husband-credit.
      
        C. F. Sandford and E. R. Robinson, for plaintiff.
      
        George De Forest Lord, for the Equitable Society.
      
        Stephen P. Nash, for Brune and Whitridge.
      
        Van Brunt, J.—[After alluding to some minor objections, the remarks upon which are here omitted.]—As to the fact that the assignment was signed by Mrs. Barry in blank, I think that the rule must be applied, which has long been held in this state to be the true one in reference to powers of attorney, viz: that the execution and delivery of an assignment of personal property in blank authorizes the person to whom it is delivered to fill up the blanks, so as to make it an effectual transfer of such property.
      The next objection is that the plaintiff was a married woman, and that, in this State, a married woman cannot assign such a policy. In considering this question I think that we must assume that all the premiums paid were paid by John S. Barry. It appears that they were all charged to John S. Barry upon the books of the firm, being paid by the firm, and that, although the firm was indebted to Mrs. Barry, these amounts were not charged against her. The policy of insurance must be governed by the laws of New York. It is made pursuant to the laws of New York, in New York, and to be performed in New York, viz : to be paid there.
      The case of Eadie v. Slimmon, 26 N. Y., 9, is relied upon by the plaintiff’s counsel as an authority which must control this case; and the language used by the court would certainly, if applied to this case, support that view. In that case the creditor had even kept the policy alive by the payment of the premium, without the payment of which the policy would have lapsed. But even then he was allowed to recover, out of the fund, only the premiums paid. It is claimed that the powers of a married woman over her separate estate have been very much enlarged, and that she has now a power of assignment of her separate estate which she had not when the case of Eadie v. Slimmon arose; but an examination of the opinion in that case will show that the court assumed that the wife had a power to assign any ordinary chose in action belonging to her in her own right as her separate property, and she has no greater power in respect to choses in action now; and, notwithstanding this power, they held that the policy was not assignable like an ordinary chose in action.
      It is to be observed that the policy in Eadie v. Slimmon was payable to the wife or her executors, administrators or assigns. In the case now under consideration, the policy was payable to her in case she survived her husband, and if she did not, then it was payable to their children. The married woman’s acts give her only a power over her separate estate, and if her interest in this policy at the time it was assigned did not arise to the dignity of an estate, or her separate property, no power to assign is conferred by the statute.
      Property is defined to be that which belongs exclusively to an individual, a thing owned, and the words used in the married woman’s acts are “ separate property.” Can a policy of insurance, in which the wife has only a contingent interest, and in which her personal representatives have none whatever, be called her separate property ? Is her right under that policy anything more than a contingent interest, liable to be defeated upon her death, before that of her husband ? It is not at all necessary to discuss here what would have been the effect of the assignment had this policy been payable to the plaintiff, her personal representatives or assigns, because her rights under such a policy might possibly be property, and her separate property. But there is no such provision in this policy. In case of ■her death, the plaintiff had no power whatever to dispose of this policy, and the only interest or claim which she could have under this policy depended upon her surviving her husband. There is no definition given to the words “estate or property,” that I have been able to find, which could be made to apply to such a contingent interest. It seems to me, therefore, that it is not in any sense property, and if this is so, she had no power to make any such assignment, as she can only assign her separate property. o
      There is, however, another view- of this question which would appear to be equally conclusive against the right of the assignees of Bruñe & Co., to recover in this action.
      It must be assumed, from the evidence in this case, that John S. Barry was the real applicant for this policy; that it was expected or understood that he was to pay the premiums thereunder, and that it was intended as a provision to be made by him for his wife, in case she survived him, and for his children in case he survived her.
      Looking upon this policy, in this light, I am unable to distinguish it from the cases in which provision has been made by a husband for his wife and children, through the intervention of a trustee, and the courts have uniformly held that such a trust, once created, is irrevocable (Bell v. Canton, 2 Myln. & K., 503 ; Watson v. Bonney, 2 Sandf.; Peterson v. Murphy, 17 Jurist, 298 ; Gilchrist v. Stevenson, 9 Barb., 9).
      As to the question whether the insurance company are entitled to costs, as against their co-defendants, it has been suggested that the 
        company is not entitled to costs, because they could have paid the fund into court, and thus have relieved themselves entirely from the litigation. I am not by any means convinced that they could, in this case, have relieved themselves from all responsibility by such a course. There is another suit pending against them in Maryland, upon this same policy of insurance, and if a judgment had been obtained in that action, before any judgment was obtained in the action here, it would be-no answer to that judgment for them to say that they had, of their own motion paid the money into court here. This would give them the power to defeat the rights of the most diligent claimants.
      The defendants, by commencing the suit in Maryland, have compelled them to remain parties to the litigation, and should, therefore, pay them their costs.
      Judgment must therefore be rendered in favor of the plaintiff, with costs, as against the defendants, Bruñe and Whitridge, and for costs against Bruñe and Whitridge, in favor of the- defendant, the Equitable Life Assurance Society, &c.
      Sote.—The act of-1873, Laws of 1873, ch. 821, amending Laws of 1858, p. 306, ch. 187, and-Laws of 1870, p. 612, ch. 277, allows a married woman, h aving no issue, to devise or assign by conveyance separately acknowledged, policies issued or assigned to her or to her and her children.
      The rule introduced by the acts of 1848 and ’49, that a deed by a married woman, of her separate property, need not be acknowledged' by a private examination as required by the Revised Statutes; but might be acknowleded as if she were sole, is not modified by the acts of 1860 and 1862, which use a slightly different phraseology (N. Y. Superior Ct Sp. T., 1873, Allen v. Reynolds, not reported)
    
    
      
       This case is mis-reported. See the opinion of the court in 1 Abb. Ct. App. Dec., 495.
    
    
      
       Affirmed in 34 N. 7., 347.
    
    
      
       Present—J. F. Barnard, Ch. J., and Gilbert and Pratt, JJ.
    
   By the Court.—J. F. Barnard, J.

We think that a note made by a mailed woman payable to her own order and at a future date and at a specified place, is negotiable although it contain a clause that the amount of the note is therein made a charge upon her separate estate. To give her a position as to her separate estate as if unmarried, the use of the words whereby her separate estate is charged should not be held to destroy the negotiability of the note.

The plaintiff is a bona fide holder of the note before maturity. He gave up his claim against John Ruck and took therefor the note in question.

The cases establish this to be a good consideration. The judgment should be affirmed, with costs.  