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crued from it to the widow.87 And such seems the present rule, except where real estate has been advanced, in which the widow has a dower interest.88
Whether debts due from heirs or distributees are to be treated as advancements depends on the statute. In some jurisdictions a distinction is made between debts and advancements, and between heirs taking in their own right and by representation.se Heirs taking in their own right, not being liable for the debts of their ancestors, may take their shares free from any deduction on account of their ancestor's debts. But when they take by representation they can take no more than the person they represent would have taken had he survived the intestate.90 The indebtedness of a distributee constitutes assets for the benefit of the estate. 91 If a debt exceed the debtor's distributive share it will in this jurisdiction be treated as assets to the extent of such share.92
The value of advancements is reckoned as of the time when made, unless a contrary intention appears from the terms of the conveyance.03 The statute provides for an express valuation by an acknowledgment of the recipient, and it seems to make it conclusive even as to other children not advanced.94 Interest is not as a rule, in the absence of agreement otherwise, allowed on advances, and the same would hold true of advancements.95 After intestate's death, it may, however, be just to charge interest on advancements from the time of intestate's death, in order to equalize the shares of those entitled to distribution.96
87 Ward v. Laut, Prec. Chan. 182, 184; Kircudbright v. Kircudbright, 8 Ves. 51, 64. Cf. Howland v. Heckscher, 3 Sandf. Ch. 519, 525.
88 Woerner on Administration, 1217.
89 Woerner on Administration, 149; Smith v. Kearney, 2 Barb. Ch. 533 ; Expr. Oakey, i Bradf. 281.
90 Woerner on Administration, 150; Beebe v. Estabrook, 79 N. Y. 2446; Parker v. McCluer, 36 How Pr. 301 ; S. C., 5 Abb. Pr. N. S. 97, 3 Keyes, 318.
92 Howland v. Heckscher, 3 Sandf. Ch. 519, 526. Cf. Ebeling v. Ebeling, 61 Misc. 537, 539; Verplank v. Dewent, 10 Hun, 611; Cases on Wills.
96, Decedent Estate Law; Parker v. McCluer, 3 Keyes, 318; Palmer v. Culbertson, 143 N. Y. 213. Cf. March v. Gilbert, 2 Redf. 465; Hoerle v. Hoerle, 94 App. Div. 615.
94 § 96, Decedent Estate Law, and see Woerner Administration, I 221.
91 Smith v. Kearney, 2 Barb. Ch. 533
95 Matter of Keenan, 15 Misc. 368, 38 N. Y. Supp. 426.
96 Woerner on Administration, 1222.
This section, like the original Statute of Distributions,ø7 excludes children and descendants who have been fully advanced from any shares in the distribution of an intestate's estate.98 Section 97 of the act directs that advancements made out of real property shall be adjusted out of the real property descendible to heirs, and that advancements of personalty shall be adjusted out of the surplus of personalty distributable under the existing Statute of Distributions. If either species of property is insufficient for that purpose the deficiency is to be adjusted out of the other. The surrogate may adjust the advancements out of personal property.2
97 See p. 436, supra.
99 $ 98, Decedent Estate Law; Terry v. Dayton, 31 Barb. 519.
18 97, Decedent Estate Law.
2 § 2733, Code Civ. Pro. and see under $ 97, supra.
$ 100. Estates of married women. The provisions of this
article respecting the distribution of property of deceased persons apply to the personal property of married women dying, leaving descendants them surviving. The husband of
any such deceased married woman shall be entitled to the same distributive share in the personal property of his wife to which a widow is entitled in the personal property of her husband by the provisions of this article and no more.
Formerly $ 2734, Code of Civil Procedure, as amended by chap. 686, Laws of 1893 :
§ 2734. Estates of married women.- The provisions of this article respecting the distribution of property of deceased persons apply to the personal property of married women dying, leaving descendants them surviving. The husband of any such deceased married woman shall be entitled to the same distributive share in the personal property of his wife to which a widow is entitled in the personal property of her husband by the provisions of this article and no more,3
$ 2734, Code of Civil Procedure was in 1893 taken out of 2 R. S. 08,
$ 79. The preceding provisions respecting the distribution of estates, shall not apply to the personal estates of married women; but their husbands may demand, recover, and enjoy the same, as they are entitled by the rules of the common law.4
History of this Section. By the old law a husband had the exclusive right of taking out administration. This right was confirmed by the Statute of Frauds, which provided in substance, that the original Statute of Distributions should not " be construed to extend to the estates of femes covert that shall die intestate, but that their husbands may demand and have administration of their rights, credits and other personal estates and recover and enjoy the same as they might have done before the making of the said
3 Repealed, $ 130, Decedent Estate Law.
4 Repealed by chap. 686, Laws of 1893.
5 Humphrey v. Bullen, i Atk. 459; Sand's Case, 3 Salk. 22; Johns v.
Rowe, Cro. Car. 106; Goodeve, Pers. Prop. 366; Williams on Executors, 267; Barnes v. Underwood, 47 N. Y. 351; McCosker v. Golden, i Bradf. 64.
6 22 & 23 Car. II, chap. 10.
act.”? The Statute of Frauds is miscited occasionally in the New York reports.
When the Statute of Distributions was expressly re-enacted in New York, in the year 1774, in the manner before detailed in these pages, this provision of the Statute of Frauds, giving the husband right to administer and excepting the estates of femes covert from its operation, was appended to the New York version of the Statute of Distributions itself.10 After the foundation of the State government, the various revisions of the statute law continued the same provision in force.11 In 1830 it became part of the Revised Statutes,12 and in a somewhat altered form this section is a survival of one of such provisions of the Revised Statutes.13 The balance survives in the Code of Civil Procedure or this act.14 In consequence, the husband is still entitled to administer where the wife dies intestate and without descendants.1
The foundation of the husband's right to administration has been attributed by some to the Statute 31 Edw. III, regulating administration, on the ground that the husband was to be considered
wife's next and most lawful friend” within that statute. But others insist that the husband is entitled to administer jure mariti and independently of statute.16 Whether the right of the husband to take the wife's personalty absolutely on her death depends on his right to administer, or is independent of it and jure mariti, has also been questioned by historical jurists, and the courts of this State do not seem to decide on which ground he originally
7 29 Car. II, chap. 3, § 25. See this act, Fowler's Pers. Prop. Law (2d ed.), p. 301.
8 47 N. Y. p. 355; 100 id. p. 332. See the English Stat. of Frauds, 29 Car. II, chap. 3, $ 25.
9 Supra, pp. 443–446.
10 See chap. II, Laws of 1774. The reader will find the history of the Statute of Frauds in the author's edition of the Pers. Prop. Law of New York (2d ed.), pp. 133-136.
11 2 J. & V. 71, $ 5; 1 K. & R. 539, § 16; 1 R. L. 311, § 17; McCosker v. Golden, i Bradf. at p. 65.
12 2 R. S. 75, $ 29; id. 98, $ 79. See above under this section.
13 $ 100, Decedent Estate Law.
14 § 2660, Code Civ. Pro.; § 103, Decedent Estate Law.
15 Redfield's Surrogate's Practice (7th ed.), $ 346; Matter of Harvey, 3 Redf. 214; Matter of Thomas, 33 Misc. 729, 731.
16 Williams on Executors, 267, 268; Barnes v. Underwood, 47 N. Y. 351, 354; McCosker v. Golden, 1 Bradf. 64.
succeeded to her personalty,1? although the tendency is to assign it to the “jus mariti” 18 That he did so succeed is, however, to be regarded as quite sufficient for practical purposes.
Husband's Right to Married Woman's Personal Property. Prior to the Married Women's Acts in this State19 the title to personal property and chattels real, possessed by a woman (with few exceptions), passed to her husband by force of her marriage.2 This was accounted for in law by some theory of merger or identity which took no notice of the female. Her personal estate and chattels real, not in her possession, became the husband's only by reduction to possession.21 A married woman could not at common law make a will without her husband's consent to the particular will,a2 unless there was an ante-nuptial agreement to that
although she could after coverture execute a devise pursuant to a power to devise her settled lands or property.24 If the wife had any personalty of her own, by virtue of any limitation to her separate use, or by assent of the husband, or in reversion or remainder, the husband's right to be her administrator on her death was complete, and exclusive of all other persons.25 The foundation of this right of the husband though disputed,24 was finally confirmed by the Statute of Frauds, as stated in the preceding paragraph.27
17 Barnes v. Underwood, 47 N. Y. 351, 354, 355; McCosker v. Golden, i Bradf. 64, 65.
18 Ransom v. Nichols, 22 N. Y. 110; Robins v. McClure, 100 id. 328, 333, 334; McCosker v. Golden, i Bradf. 64, 67.
19 Chap. 200, Laws of 1848; chap. 375, Laws of 1849; chap. 576, Laws of 1853; and see Fowler's Real Prop. Law (3d ed.), 607, for later acts.
20 Co. Litt. 300; 2 Black. Comm. 433; Macqueen on Husband and Wife, 18; Barnes v. Underwood, 47
21 Roper on Husband and Wife, 203 sq.; 2 Kent Comm. 135; Barnes v. Underwood, 47 N. Y. 351, 353, 354.
22 Roper on Husband and Wife, 170; i J. & V. 93, § 5; see under $ 10, supra “Coverture."
23 Williams on Executors, 45, 270.
24 Fowler's Real Prop. (3d ed.), 603.
25 McCosker v. Golden, 1 Bradf. 64; Williams on Executors, 267.
26 Ibid., see above, p. 473.
N. Y. 351.