J. Wesley Dorland, Respondent, v. Cyrenus P. Dorland and Ardella E. Dorland, as Executors, etc., of Zachariah F. Dorland, Deceased, Appellants

J. Wesley Dorland, Respondent, v. Cyrenus P. Dorland and Ardella E. Dorland, as Executors, etc., of Zachariah F. Dorland, Deceased, Appellants. Waiver of a husband’s right, existing prior to the Married Women’s Act of 1848, to money belonging to his wife — effect of his receiving it from his wife in trust for their son. A husband absolutely entitled to reduce to possession money bequeathed to his wife, before the passage of the Married Women’s Act in 1848, might waive such right and permit his wife to hold the money as part of her separate estate and might properly receive it from the wife upon trust to hold it for the benefit ■ of their son. . Appeal by the defendants, Cyrenus P. Dorland and another, as executors of the last will and testament of Zachariah F. Dorland, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 13th day of January, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of January, 1900, denying the defendants’ motion for a new trial made upon the minutes. Hackett & Williams [Frank B. Lown with them on the brief], for the appellants. James G. Meyer [ W. H. Wood with him on the brief], for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: Zachariah Dorland married Susan Chatterton on the 8th day of October, 1845. A son, J. Wesley Dorland, the plaintiff in this action, was born to them on the 12th day of September, 1846. On the 26th day of September, 1846, the mother died, and a few years later Zachariah Dorland married Eliza, the deceased wife’s sister, and, she dying, Zachariah married for a third time in 1894, the last wife surviving him. It was alleged on behalf of the plaintiff that his mother received $2,000 from her father’s estate, and that this sum was taken by the father upon an agreement to invest and care for the same and to deliver it to his son at the father’s death. The father, by his will, neglected to provide for the payment of this trust fund, and this action was brought against his executors to compel the payment out of his estate. The evidence in support of this claim consisted principally of the admissions of Zachariah Borland during his lifetime, the executors being able to afford but little evidence bearing upon the question, and they rely upon this appeal largely upon the theory that, as the money came into thé possession of their testator before the modification of the common law in 1848, the marriage with Susan Ohatterton vested in the husband the right to reduce to his possession, and ownership the wife’s choses in action, and gave him the title to her personal chattels at once and absolutely, and there being some evidence- that this money was invested in a certain farm, it is urged that this is evidence that their testator had availed himself of this right and had actually become the legal owner of the money of his deceased wife. The jury, to whom the question was submitted under a charge which carefully and forcibly called attention to the necessarily one-sided and interested character of the evidence in support of the plaintiff’s claim, found a verdict in favor of the latter for $2,000, less a certain amount found to have been provided for in the will: From the judgment entered upon this verdict and from an order denying a motion for a new trial, defendants bring an appeal to this court. While it is not to be doubted that, under the law as it existed at the death of Susan Borland, plaintiff’s mother, Zachariah Borland might have taken her $2,000 and appropriated it to his own use, this was a right which he might waive, and if he did not choose to avail himself of his marital right, but permitted his wife to have it as her separate estate, and it thus became her separate estate in equity (Savage v. O'Neil, 44 N. Y. 298, 301), there is no doubt of her right to give it to her husband in trust for her son. There is no evidence in the case disputing the testimony offered by the plaintiff that Zachariah Borland during his lifetime admitted repeatedly that he held this sum in trust for his son, and the evidence from both sides indicates that there was an understanding through the family that Susan Borland had some money in her own right, which was always referred1 to as belonging to the first wife. While the evidence is not very clear and satisfactory, we think it is sufficient to support the finding of the jury that the $2,000 was always acknowledged to be Susan Borland’s and to authorize an inference, in support of the judgment, that the money was obtained by the husband as her money, under some arrangement or understanding between the parties that it should be secured to her son. (Syracuse Chilled Plow Co. v. Wing, 85 N. Y. 421, 426.) If the money was received by the husband as his wife’s, to be accounted for or secured by him to her son, he waived his marital rights thereto, and she had an equitable right to the fund sufficient to direct its disposition upon the death of her husband. (Syracuse Chilled Plow Co. v. Wing, supra. See, also, Jaycox v. Caldwell, 51 N. Y. 395.) We think the case was properly disposed of by the trial court and that the judgment and order appealed from should be affirmed, with costs. All concurred, except Hirschberg, J., not sitting. Judgment and order affirmed, with costs.