Hone v. De Peyster

The division by the testator of the money arising from the bond and stock of the Peru Iron Company, by which the amount was divided between the parties from whose interest it arose, and the widow was in effect credited with $5,511, is a plain indication of the intention of the testator to hold such proceeds, not for the benefit of himself, but for the benefit of his widow.

*437It was substantially placing himself in the situation and relation of a trustee as to these moneys, for the benefit of his wife, as well as to the other two shares for the benefit of the persons entitled, to the other parts of the money. There was the same reason for believing that he intended to hold one-third of the proceeds for her, as there was that he intended to hold the other shares, as he did, for the benefit of the other persons, to whom two-thirds of the money was in fact paid by him.

The same observations are alike applicable to the sum of $6,000, received on account of a legacy from the Hone estate, which had been bequeathed to her.

The plaintiff, as executor of the estate of the widow, was entitled to recover those moneys, as funds held in trust for the testatrix by her husband.

The judgment should be reversed and a new trial ordered.

(dissenting). — This opinion of the referee is elaborate and well considered, and our own careful examination of the case has constrained us to the conclusion that upon all the questions, both of equity and law, involved in the case, it is correct We accept it, therefore, as an accurate disposition of the case, although we think, considering all its circumstances, it would have been as well not to have awarded costs to either party.

It seems to us manifest, from the evidence in the case, that both Mrs. and Mr. De Peyster in their life-time acted in reference to her property, which she had received from the estate of her former husband, as though it remained her own, and with the expectation or belief that the ultimate disposition made of it, by her will, would be valid and enforceable after the decease of both. But as she acquired and owned her personal estate prior to the act of 1848, and the other acts familiarly known as the married women’s acts, it was not subject to the provisions of those acts, as is now well settled by the authorities cited by the learned referee; and the acts performed by Mr. De Peyster *438in reference to it and its management were snob as at common law were sufficient to clotbe bin witb tbe legal title, as bus-band, of all tbe personal estate reduced to possession, and witb tbe title, by survivorship, of all not reduced to actual possession. Tbeir misapprehension of tbeir rights cannot be beld to change or affect tbe legal title of Mr. De Peyster, both during ber life and after ber decease.

We think it onr duty, under tbe cicnmstances, in affirming tbe judgment, tó do so without costs of tbe appeal.

Tbe judgment is accordingly affirmed, without costs.