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Benedict and wife agt. Seymour and others.

interests of married women, in lands sold under decrees in partition, it was provided, that unless they chose to execute releases to their husbands, their inchoate right of dower, in such cases, should be valued, and a corresponding portion of the proceeds invested or paid over, as the court should deem best, to secure and protect the rights and interests of the parties. Under this act the ordinary practice, formerly, when a release could not be obtained from the wife, was to pay the money set apart for her dower into court.

By the acts of 1848-9, however, for the better protection of the rights of married women, such persons were, in effect, declared, in respect of property and its management, to stand precisely upon the same footing as “ single females,” and with the same power of disposal “as if they were unmarried.” Why, then, should money awarded to them be any longer paid into court? Why, in other words, should the chamberlain of the city, without their request, be made their trustee?

Money paid to a married woman is not, as formerly, her husband's property, nor subject to her husband's “ disposal,” nor “ liable for his debts.” His legal control over it is gone. And as to undue influence, no woman of the present day is presumed so deficient in strength of mind, as to need protection against the persuasive potency of any husband. The law regards her capacity to resist as in no wise impaired by her promise to obey, and assumes that she can say, no, quite as freely, and quite as energetically, after marriage, as while she was only “a single female." True, the amending act of 1849 indicates, on this point, some slight misgiving, and provides that where an express trust has been created for a married woman, it shall not be discharged, even “ on her written request,” unless a justice of the supreme court, after due examination and inquiry, shall accompany such request with his “certificate,” to the effect—for such I am inclined to think, although not very clearly expressed, was the intention of the act—that he is satisfied with “ the capacityof the lady “to manage and control.” But even this qualification, confined, as it is, to particular trusts, and bearing on the present case only as a source of analogy, is,

Benedict and wife agt. Seymour and others.

in a great degree, neutralized by the spirit of a subsequent statute, passed on the 30th of June, 1851, which gives to all married women, who are stockholders or members of any corporation, the absolute right “to vote at any election for directors or trustees,”—and this without consulting either their husbands, or a justice of this or any other court.

After these strong and unequivocal legislative indications, it would seem to be the duty of the judiciary to reverse the former common-law presumption, and to assume (unless the contrary be expressly proved) that every married woman, of full age, is as “competent to manage and control” as any man or "single female."

Next, as to what has been called the curtesy estate of the husband. By the common law, every husband, in right of his wife, immediately on the marriage, except where a settlement was agreed upon, became seized of his wife's houses and lands, during their joint lives, and (if issue followed) during his own life.

The act of 1848, while it left to the married woman her common-law right of dower in her husband's property, it would seem, took from the husband, intentionally or otherwise, his common-law right of curtesy in that of his wife. As marriage, whatever may be its other attributes, is, in law, a civil contract, it is obvious that this act of the legislature, so far as it operates on existing marriages and existing property, impairs the obligation of contracts, and is, on that ground, unconstitutional and void. (White agt. White, 5 Barb. 474.) As to subsequent marriages, however, and as to subsequently acquired properly under prior marriages, its validity, I presume, whatever may be said of its justice, cannot be disputed. Hence the necessity, in all cases involving the claim of tenancy by the curtesy, of stating the dates when the union between the parties was formed, and when the property sought to be partitioned was acquired. Without these elements, it is impossible for the court to determine—as they are called upon to do—the rights of the parties. And even when these elements are supplied, if they show a constitutional right in the husband beyond the

Benedict and wife agt. Seymour and others.

reach of the legislature, its duration, and of course its value, still depends on the further circumstance, generally overlooked, of issue born. With issue, the estate is for the husband's own life; without issue, it cannot extend beyond his wife's. Its value, therefore, depends not only upon the principles applicable to life annuities and survivorships, but upon the fact of issue; and if none, upon the likelihood of issue. In this respect it differs materially from the inchoate dower of the wife. The widower, after his wife's death, takes only on the condition of paternity—the widow, after her husband's, whether she has been a mother or not.

The greater or less likelihood of issue, in any given case, must depend again, it is obvious, not only upon the principles applicable to life and survivorship, but upon facts and circumstances not usually taken into consideration by the law. One extreme case it is true, has been admitted, and that only under the system now abolished, of entailment. An estate-tail, “after possibility of issue extinct,” was a recognized head of the ancient jurisprudence. Short of impossibility, there was no case that I am aware of. How, then, in other cases, is an inchoate tenancy by the curtesy to be valued ? In other words, what sum, in gross, as a substitute for the probable prospective income, is to be allowed ?

On this, and other points suggested, I wish to hear the counsel for the parties before adopting the draft decrees which have been submitted in this and some other cases.

Judgment suspended accordingly.

Beecher agt. Conradt.

COURT OF APPEALS.

BEECHER, respondent, agt. CONRADT, appellant.

Where the respondent has omitted to avail himself of the neglect of the appel

lant in procuring the return of the clerk within twenty days after the appeal was perfected, until after the return has been made, and has, after the filing of the return, noticed the cause for argument, the objection that the return

was not made in time is waived. An objection that the return does not contain a copy of the notice of appeal, and

also that the printed copies of the case served do not contain a copy of the notice of appeal, or a copy of a certificate of the clerk of the court below, that the papers returned by him are correct copies of the judgment-roll, &c., are omissions which this court will, on motion, allow the appellant to supply, with

out dismissing the appeal. Where the record shows an actual determination made at general term, although

it does not affirmatively appear that the case was brought there by appeal, this court will not go behind the record to inquire whether there was a judgment at special term from which an appeal had been taken, but presume that the case was regularly at general term by appeal.

March Term, 1855.

This is a motion on the part of the respondent, to dismiss the appeal on the following grounds :

1. That the return by the clerk was not made within twenty days after the appeal was perfected.

2. That the return, as made, does not contain a copy of the notice of appeal.

3. That the printed copies of the case served by the appellant do not contain a copy of the notice of appeal, or a copy of a certificate of the clerk of the court below, that the papers returned by him are correct copies of the judgment-roll, &c.

4. That the judgment appealed from has never been passed upon by the general term of the supreme court, and that no appeal can be taken in the first instance—from said judgment to this court.

5. That no motion for a new trial could be granted by the supreme court upon a bill of exceptions.

Beecher agt. Conradt.

The judgment from which this appeal is taken was entered in Oneida county, on the 10th of February, 1853, and is in the following words:

“ This action having been tried before Philo Gridley, one of the justiees of this court, at a circuit court held in and for the county of Oneida, &c.; and the said judge having then and there rendered judgment in favor of plaintiff against the defendant for the sum of $7.50.60, with costs to be taxed; and the defendant having excepted to the ruling of the judge on said trial, and having made a bill of exceptions, and thereon moved a new trial, and this court having at the January term thereof, held at the city of Utica in the year 1853, denied said motion, which said motion was made and argued at a general term of this court, and the decision of the court thereupon being filed, whereby a new trial in said action is denied, now, on motion, &c., it is ordered and adjudged, &c."

CHARLES A. Mann, for respondent:
SAMUEL BEARDSLEY, for appellant.

By the court-DEAN, J. As the respondent has omitted to avail himself of the neglect of the appellant's attorneys in procuring the return of the clerk within twenty days after the appeal was perfected, until after the return has been made; and especially as he has himself, since the return was made, noticed the appeal for argument, he must be held to have waived all objection on that account.

The second and third grounds of motion are for omissions in the return and copies of the printed case, which this court would, on motion, allow the appellant to supply, and the respondent having waited two years before moving to dismiss on account of such omissions, the appellant must now have leave to perfect the return, and copies of the case already served, and without costs.

The reason for the motion, fourthly named, that the judgment appealed from has never been passed upon by the general

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