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The People on rel. Morton a. Tieman.

a successor, and, as we think, place his case among those of the first class recounted in this opinion, in which there is an implied restriction upon the right of holding over."

The head note of the reporter upon this branch of the case is-"Under the act of 1831 a second school commissioner could have indefinitely held his office until the election of a successor, and in such case his sureties would have been liable for his acts during his continuance in office. The act of February 2, 1838, repealed the act of 1831, and limited the terms of school commissioners to the precise times for which they were elected, and the sureties are not liable under the law for the acts of the commissioner after the expiration of his time."

Now, it is not necessary to say, with the court in the case cited, that if there is no restriction, express or implied, in the law, an officer, elected for a given time, may hold over until superseded by his successor, for the reason that, in this case, within the rule laid down, there is a restriction imposed by the act limiting the term of office of the relator to the precise term for for which he was elected.

I am of the opinion that upon his own showing, and upon the just construction of the act of 1857, he did not continue in office after the 31st of December, 1858. 1. By the repeal of the act under which he took office-which repeal took full effect upon his office on the day named-his authority as city inspector wholly ceased. 2. There is no provision of law in force authorizing him, expressly or by implication, to continue to perform the duties of the office after that day. 3. His time of office is expressly limited by the act of 1857 to the time for which he was elected, which expired on that day.

It follows that he has not established a right to the writ for which he asks, and the motion must be denied with costs

Vallance a. Bausch.

VALLANCE a. BAUSCH.

Supreme Court, First District; General Term, May, 1859.

CONTESTING WILL OF MARRIED WOMAN.-HUSBAND'S TITLE TO SEPARATE PROPERTY OF Deceased WIFE.

The acts of 1848 and 1849, respecting the separate property of married women (Laws of 1848, ch. 200; Laws of 1849, ch. 375), do not divest the husband's right of succession to his wife's personalty on her decease, except where the power of disposal given to her by the statute is actually exercised.

The relatives of a deceased married woman have no interest, under these statutes, enabling them to contest the probate of her will of personal estate.

Appeal from a decree of the surrogate of New York admitting a will to probate.

The facts are fully stated in the opinion.

John W. Edmonds, for the appellant.

R. M. Harrington, for the respondent.

BY THE COURT.*-SUTHERLAND, J.-This is an appeal from the decree of the surrogate of New York, admitting to probate the will of Catharine E. Bausch, the wife of the respondent.

The testratrix was the owner of certain personal property, and, during coverture, made her will, bequeathing the same, bearing date December 1, 1856. She died on the 27th of March, 1857, leaving no children, but leaving her husband, the respondent, and the appellant, her mother, her surviving.

The appellant attended, as her next of kin, at the probate, and filed objections thereto, and prayed to have said objections heard; but the surrogate decided that she could not be heard in the premises, and had no interest, right, or title in or to the goods, chattels, and credits, whereof the said Catharine died the owner, and in possession; but that the same belonged, after due ad

* Present, DAVIES, P. J., CLERKE and SUTHERLAND, JJ.

Vallance a. Bausch.

ministration, to the respondent, who proposed the will, as her husband; and, therefore, that the appellant had no interest in the matter of the probate of the will.

It does not expressly appear, but it is presumed, that the marriage took place subsequent to the acts of 1848 and 1849, for the more effectual protection of the property of married women; or, if it took place before those acts, that the property of the wife was acquired by her subsequently, so that she had, as a married woman, all the rights in and over the property intended to be given or secured to married women by those acts, irrespective of any constitutional question, or of any vested right of the husband.

The question then is, to whom does the personal property of a married woman, continued in her, or acquired and held by her, as a married woman under the protection of those acts, go on her death, without having made any disposition thereof by will or otherwise, the husband surviving? Does the husband succeed and take it absolutely, or does it go to her next of kin ?

The surrogate held in this case, as he did in McCorker a. Golding (1 Bradf., 64), that the statutes of 1848 and 1849 had not in such case made any alteration in the distribution or right of suecession; that the property passed to the surviving husband absolutely, subject to the payment of the wife's debts, founding his right to the property on his sole right, if otherwise competent, to administer on her estate.

The learned and able brief submitted by the counsel for the appellant in this case, is mainly intended to show that the husband's right to the personal estate of his wife, dying intestate, was not, prior to the acts of 1848 and 1849, an incident merely of his administration or right of administration on her estate, but a right as husband, incident to or arising from the marriage relation, existing and continuing in him in the lifetime of the wife, and as such that it would be inconsistent with the object and provisions of the acts of 1848 and 1849, and with the sole and separate rights and interests intended to be given and secured to married women in and over their property by those acts, and therefore was abrogated by those acts.

It must be conceded, I think, that if, since the acts of 1848 and 1849, the husband is entitled to the undisposed of personalty VOL. VIII-24

Vallance a. Bausch.

of his wife on her death, he takes it as husband, and not as administrator.

His right of administration is positive and certain by statute, and it may be necessary for him to administer on her estate in order to recover by action, or to reduce into his possession her choses in action or chattels in the possession of third persons; but it is presumed that a voluntary payment to him, and discharge by him of a bond or note belonging to the wife's estate, without or before administration, would be perfectly good. Who could object?

It may be admitted that this right to her personalty would fol low from his certain and positive right of administration, and from the exception from the statute of distribution of his wife's estate, and the absence of any accountability or liability on his part as administrator or otherwise, except for the debts of his wife; and yet, why was he excepted from the statutes of distribution, except as husband? and why his certain and positive right of administration, if otherwise competent, except as husband? and why, if any other person administered, or the husband died without having fully administered, and administration de bonis non was granted to a third person, was such other administrator, both at common law and by statute, a mere trustee for the husband or his representatives? (2 Kent's Com., 136; 3 Rev. Stats., 5th ed., § 30.)

The language of the statutes in excepting the estates of married women from distribution is, that "their husbands may demand, recover, and enjoy the same as they are entitled by the rules of the common law." (3 Rev. Stats., 5th ed., § 36.)

It is said in the books that the husband is entitled to administer for his own benefit as husband, and that he is entitled for his own benefit to all his wife's chattels real, things in action, and every species of personal property, whether reduced to possession or contingent, or recoverable only by suit. (2 Kent's Com., 135; Butler's note 304 to Lib. 3 Co. Litt.) But he could not take, as administrator of his wife, that which he was absolutely entitled to in the lifetime of his wife; and at the common law, by the marriage he became absolutely entitled to all her goods and chattels then in her possession, or which came into her possession after the marriage, and to such of her choses in action as he should reduce into his possession during her life.

Vallance a Bausch.

I think in giving construction and effect to the statutes of 1848 and 1849, as to the personal estate of married women, the common law, or statutory right of the husband, when those acts were passed, even to the choses in action of the wife, not reduced into possession in her lifetime, should be considered as one of his marital rights, commencing with the marriage, continuing in him during their joint lives, and surviving on her death.

Indeed, it has been recently expressly held by the Court of Appeals, in the case of Westervelt a. Gregg (2 Kern., 202), that the husband, in the lifetime of the wife, had a vested property or interest in his wife's choses in action, not reduced into possession, which the statutes of 1848 and 1849 could not constitutionally take away.

If the right of the husband to reduce the wife's choses int action into his possession in her lifetime, or after her death in case he survived her, was property and a vested right of interest in the husband in the lifetime of the wife, certainly her death could not divest it; the right to reduce her choses in action into his possession absolutely, and for his own benefit, remaining in him after her death, as fully and completely as before.

When the acts of 1848 and 1849 were passed, the husband took and had by the marriage, absolutely as his own, not only the goods and chattels of his wife in her possession, and also a right during their joint lives to reduce her choses in action into possession for his own benefit, by action or otherwise; but he also took and had by the marriage, and held during their joint lives, a right after her death, if he survived her, at common law and by statute, as her administrator or otherwise, to take and hold, reduce into his possession, and recover absolutely for his own use and benefit, subject to the payment of her debts, all of her chattels, personal estate, and choses in action, which he had not reduced into his possession in her lifetime, or which had not become his absolutely prior to his death, by being by her reduced into her possession.

Now, the right of the husband after the death of the wife, to take, reduce into his possession, and keep as his own, her choses in action and personalty after paying her debts, being in the lifetime of the wife just as positive and certain as his right to reduce her choses in action into his possession in her lifetime, if

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