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Married Women's Acts. The so-called "Married Women's Acts," which began in this State with the year 1848,28 and which were designed to emancipate her from the subordinate status assigned to her by the common law, and, indeed, by the ancient laws of most primitive states, essentially altered the old law of husband and wife. This modern legislation, in substance, invested a married woman with an entirely new juristic status at law, whereby her property became and continued more independently her own at law than it had ever been even in equity, where the modern tendency to the creation of her separate estate first began.29 The result of the legislation just noticed has been much more complicated than the average observer takes note of, and there is a tendency discernible among the more conservative rich (a class with whom law reforms, as history shows, most frequently begin) to modify the results of such legislation by private conventions and compacts, which tend to greater permanence of the family relation and to restrain the excesses which entire freedom from control frequently produces among women of feeble endowment. By statute a married woman may now make a will without her husband's consent and to his entire disinheritance.30

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The construction placed on the Married Women's Acts has, however, been that accorded to all acts which alter the common law --a construction occasionally complained of, because it leaves the old law in force whenever and wherever it is not plainly abrogated. In so complicated an organism as a State, subject to multiform and involved institutions and laws, this rule of judicial construction has been found to be highly expedient. Although the Married Women's Acts have deprived the husband of marital control of the wife's property during the continuation of the marriage relation, they have been held thus far not to deprive him of the common-law right to administration by virtue of his marital rights, in a case of a wife dying intestate without leaving descend

28 Chap. 200, Laws of 1848; and see supra, under this section.

29 See I Spence, Eq. Juris. 595, sq. 30 Chap. 782, Laws of 1867; Wadhams v. American Home Miss. Society, 12 N. Y. 415; and see "Cov

erture" under § 10, Decedent Estate Law, supra, p. 59.

31 Taylor v. Klein, 47 App. Div. 343, 346; Vallance v. Bausch, 28 Barb. 633, 642.

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ants.3 The statute law also preserves this right as we have just

seen.

It has been stated, that the 25th section of the original Statute of Frauds excepted the personal property of married women from the operation of the Statute of Distributions, and that such legislation was in some form continued in force in this State down to the "Married Women's Acts" beginning in the year 1848.33 The first part of this section of this act conforms the law to the legal effect of those acts, and the Statute of Distributions is thereby declared to regulate the distribution of estates of married women who die intestate leaving descendants.34

When Intestate Married Woman Dies without Descendants. When a wife dies intestate without descendants, her husband is not only entitled to administer if he so elect, but even without any administration to retain, subject to her debts all her personal property jure mariti, as at common law, and notwithstanding the Married Women's Acts.35 Consequently if the wife was a shareholder in a stock corporation, upon presentation of an affidavit on the part of the husband, showing that the wife died intestate without parents and without descendants, the registrar must transfer the stock standing in her name on the books of such corporation to the husband, and the registrar is not entitled to require of the husband the production, or other proof, of letters of adimnistration on the

82 Shumway v. Cooper, 16 Barb. 556, 560, affd., Ransom v. Nichols, 22 N. Y. 110; Vallance v. Bausch, 28 Barb. 633; Barnes v. Underwood, 47 N. Y. 351; Robins v. McClure, 100 id. 328; Matter of Harvey, 3 Redf. 214; McCosker v. Golden, I Bradf. 64; Lush v. Alburtus, id. 456.

33 Supra, p. 59.

34 § 100, Decedent Estate Law; Kintz v. Friday, 4 Dem. 540.

35 § 2660, Code Civ. Pro.; § 103, Decedent Estate Law; Matter of

Harvey, 3 Redf. 214; Barnes V. Underwood, 47 N. Y. 351; McCosker v. Golden, 1 Bradf. 64; Shumway v. Cooper, 16 Barb. 556, 560; Vallance v. Bausch, 28 id. 633; Robins v. McClure, 100 N. Y. 328; Matter of Bolton, 159 id. 129, 133; Matter of Nones, 27 Misc. 165; Matter of McLeod, 32 id. 229; Matter of Thomas, 33 id. 729; and see under § 103, Decedent Estate Law. Cf. Matter of Green, 68 Misc. I.

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estate of the wife. The only penalty on the husband for not taking out letters of administration under such circumstances is that he becomes liable for the wife's debts, whether or not he has received assets.37

Life Insurance. Insurance on the husband's life, in favor of his wife who dies intestate without issue before him, does not pass to her representatives but to the husband.38 The fact that the husband effects the insurance without the wife's knowledge is immaterial.89

If Wife Die Leaving Descendants. If a wife die leaving descendants, the husband is entitled to the first right to administer,1o and he is entitled to retain on a distribution the same distributive share in the personal property of his wife which a widow is entitled to receive in the personal property of her intestate husband, and no more.41

The text of the commentary under this section should be read in conjunction with that given under section 103 of this act.

36 Sometimes transfer is wrongfully refused under such circumstances until corporation is advised by counsel to comply.

37 § 103, Decedent Estate Law. 38 Waldheim Hancock Mut. Life Ins. Co., 8 Misc. 506; Matter

V.

of Warner, 32 St. Rep. 897, II N. Y. Supp. 894.

39 Whitehead v. New York Life Ins. Co., 102 N. Y. 143.

40 § 2660, Code Civ. Pro.
41 § 100, Decedent Estate Law.

§ 101. Liability of heirs and devisees for debt of decedent. The heirs of an intestate, and the heirs and devisees of a testator, are respectively liable for the debts of the decedent, arising by simple contract, or by specialty, to the extent of the estate, interest, and right in the real property, which descended to them from, or was effectually devised to them by, the decedent.

Formerly Code of Civil Procedure, § 1843:

§ 1843. Liability of heirs and devisees.— The heirs of an intestate, and the heirs and devisees of a testator, are respectively liable for the debts of the decedent, arising by simple contract, or by specialty, to the extent of the estate, interest, and right in the real property, which descended to them from, or was effectually devised to them by the decedent.42

History of this Section. We have just seen above that this section was taken from the Code of Civil Procedure.43 It was, however, carried into that Code from the Revised Statutes in the year 1880 when the revision of the laws relating to decedents' estates and surrogates, was made, and it was then re-enacted, as section 1843, part II, of the Code of Civil Procedure of that year** Like most similar provisions of the Code it was directly derived by the codifiers of 1880 from the Revised Statutes," 45 which had also attempted a general revision of the laws relating to surrogates. But this section had a still older history than the Revised Statutes, having been originally enacted in this State as part of the legislative scheme for the relief of creditors against heirs and devisees. Creditors had complained of the hardship of the common law.

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By the common law lands of a deceased person were not liable to answer his simple contract debts, and, indeed, the heir was only liable for the specialty debts of his ancestor when he had not aliened. Lands devised were not answerable at all, unless charged in the will. The course of the legislation, altering the common.

42 Repealed, 8 130, Decedent Estate Law.

43 § 1843, Code of Civ. Pro.

44 Chap. 178, Laws of 1880. 45 2 R. S. 452, § 32.

46 Supra, p. 478.

47 Read v. Patterson, 134 N. Y. 128; Deyo v. Morss, 30 App. Div. 56; Rogers v. Patterson, 79 Hun, 483.

law in this particular, has been stated elsewhere and need not be repeated at large. 48 In 1774 the act of 3 & 4 William and Mary, chapter 14, giving specialty creditors relief, was re-enacted in New York.49 In 1786 the heir and devisee were made liable in all cases for all debts of the decedents, special or simple, to the extent of the lands received by them, but only in case the personalty was insufficient.50 The act of 1786 was re-enacted by the revisers of 18015 and 181352 and thence with some enlargements passed into the Revised Statutes,53 from which it was taken into the Code of Civil Procedure.54 A single section is now again removed to this present act.55 The adjective, or procedural, part of the legislative scheme of the Revised Statutes to give relief to creditors against heirs and devisees of a deceased debtor, is still to be found in the Code of Civil Procedure.56

The statute law now provides two modes by which lands of deceased debtors, situated in this State, may be applied to the payment of their debts and funeral expenses. Within three years from the granting of letters, creditor may apply to the surrogate by petition asking for a sale; or in the alternative, the creditor may pursue the real property of the deceased debtor which falls to the heirs or passes to the devisees of such debtor.57 It is to the last mentioned mode of redress, that section 101 of the Decedent Estate Law is referred. But section 101 standing alone is incomplete, and its provisions in practice require to be supplemented by a crossreference to the Code of Civil Procedure.5 58

Payment of What Debts Enforceable under this Section. It is contractual debts of the deceased which are enforceable, under

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54 §§ 1837-1842, Code Civ. Pro. 55 101, Decedent Estate Law. 56 §§ 1837-1860, Code Civ. Pro.; ibid. §§ 2722, 2749-2777.

57 §§ 1837, 1860, 2749, 2777, Code Civ. Pro.; Cunningham v. Parker, 146 N. Y. 29, 31; Deyo v. Morse, 30 App. Div. 56; Hentz v. Phillips, 23 Abb. N. C. 15, 6 N. Y. Supp. 16.

58 §§ 1844-1860, Code Civ. Pro.; Hill v. Moore, 131 App. Div. 365, 367; Lawrence v. Grout, 112 id. 241, 243.

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