Volume 68 — New York Supreme Court Reports

<p>Tenancy by the curtesy — marriage and birth of issue before the married women's acts — right of the husband to the wife’s real property subsequently acquired — to the wife’s personal property — equitable conversion — contribution■ — “proceeds of a sale ” means the net proceeds — taxes — a controversy under Gode of Givil Procedure, section 2812.</p> <p>A husband and wife were married and had issue prior lo the passage of the married women’s acts (chap. 200, Laws of 1848, as amended by chapter 875, Laws of 1819), and in 1856, through a third person, the husband conveyed certain real estate lo his wife.</p> <p>Held, that the husband did not, by reason of the marriage and the birth of issue prior to 1848, acquire a vested right to a tenancy by the curtesy in such lands, which the wife could not defeat by a subsequent testamentary disposition thereof</p> <p>That property acquired by the wife subsequent to the marriage was subject to any change, as to its disposition on her death, which the legislature might direct.</p> <p>That the husband was entitled to the personal property of the wife acquired before the passage of the married women’s acts.</p> <p>The will of the wife, which related lo both real and personal estate, described a piece of real estate, and stated that in the event of its sale during her lifetime, or of a sale after her death, “ then after such sale and from the proceeds thereof” she gave an annuity to her husband. Bequests to other persons were also made “ from the proceeds of the sale,” and a power of sale was given to her executors.</p> <p>Held, that there was an equitable conversion of the real estate into personalty.</p> <p>The daughters were the principal beneficiaries under the will, which contained general and specific gifts, one of the latter being of the real estate upon the proceeds of which was charged the annuity to the husband.</p> <p>Held, that the taxes upon this real estate, whether accruing before or after the death of the testatrix, should be paid from the joroeeeds of its sale, and that the legacy to the daughters was not obliged to contribute to the payment thereof.</p> <p>The “proceeds” of a sale are ordinarily the amount thereof after deducting the expenses, including taxes.</p> <p>In determining whether a bequest is general or specific tlie intention of the testator, as deduced from the whole will, must govern.</p> <p>A few weeks after leasing a house for a year the testatrix died, and her daughters continued to occupy it until the end of the term. The landlord assigned his claim for rent to one of the daughters, who presented it to the executor for payment. The executor disputed it.</p> <p>Held, that the daughter was entitled to payment, and that the executor had no right, under section 2812 of the Code of Civil Procedure, to retain a sum to meet it, as being “a controversy which arises respecting the right of a party to share in the money or other personal property to be paid, distributed or delivered over.”</p>