Vanderveer v. Vanderveer — 17 N.Y. St. Rep. 648

Majority

p. 648

George Vanderveer et al., App’lts, v. William Vanderveer, Resp’t.

(Supreme Court, General Term, Second Department,

Filed June 25, 1888.)

Headnote

1. Husband and wife—Tenancy by courtesy.

Tenancy by courtesy is not abolished. There should be plain words to-bar a possibility of a future inheritance in the wife’s lands, by the husband, because since the married woman’s act, this tenancy does not exist in her life.

3. Same—When husband’s right becomes operative.

The wife may convey the land free from it, and she may convey the land by will. If she does neither, the husband’s life estate becomes operative.

Appeal from a judgment in favor of defendant, and', dismissing plaintiff’s complaint, entered in the Kings-county clerk’s office, on a decision rendered by the court-without a jury, at the Kings county circuit, and from an order denying a motion for a new trial on the judges minutes, and from orders granting extra allowances.

Morris & Pearsall, for resp’t; T. C. Cronin, for app’lts..

The case shows that the defendant,. William Vanderveer, and his wife, Lucy Vanderveer, settled a dispute betweeen themselves by an agreement, under-which certain premises were to be conveyed to the husband,, and a lot known as No. 6 Wyckoff tract, Coney Island,, should go to the wife. Title was made to the wife by transfer, from husband and wife to one Devlin, and by Devlin, and wife, to the wife. The wife had six children by the defendant, William Vanderveer, but the case does not show whether all were born before she acquired title to Lot No.. 6. The appellant’s points assume such to be the fact. The-case does not show that Lucy Vanderveer left a will. The-fact is set up in'the answer and a copy is set forth, but it-does not appear to have been proven, and it is not found. The only question presented therefore is whether the defendant, William Vanderveer, has an estate or tenancy by the courtesy, in his wife’s land, when she died, unless having conveyed them in her life-time and without having disposed of them by will.

There is nothing in the effect of the settlement which destroys the husband’s estate. The deed from husband and wife to Devlin, and from Devlin and wife to the wife, contain.

p. 649

no words which go beyond the transfer of the estate as it-was when the deeds were given.

There is not a word in any of the conveyances which authorizes a presumption that the effect of the transaction was intended to be more than a division of property with the rights and possible rights of each in the land of the-other. The wife still had an inchoate right of dower in the-husband’s pieces, and although the husband had no legal right in her portion, he could subsequently acquire a title-therein as tenant by the courtesy. There should be plain words to bar a possibility of a future inheritance m the wife’s lands because since the married woman’s act this tenancy does not exist in her life. She may convey the land free from it and she may convey the land by will.

If she does neither the husband’s life estate becomes operative.

The judgment should, therefore, be affirmed, wifh costs.

The order for an extra allowance is proper. The value-of the land is over $30,000. and the rent some $3,000. a. year. Although the case took little time in the actual trial the question involved an extended examination of the law in respect to a vexed question.

The order should be affirmed, with costs.

Dykman, J., concurs.

It must be considered as well settled that tenancy by courtesy is not abolished. And we do not find, that the conveyances proved in this case contain any estoppel against the defendant, William Vandeveer, in respect-to such estate.

As pointed out in the opinion at special term, he did not cut off such estate by his conveyance to Devlin; the estate did not at that time exist. It did not come into being till the death of the wife, the owner of the fee.

The husband has neither conveyed it nor offered so to do.

It follows that the cause was well decided.