Vallance a. Bausch. right, but rather the right of his heirs. What other or further right of property is there or can there be, than the right of its free and exclusive use and enjoyment during life, with a right of free and absolute disposition. These rights the married woman can take, and has under the acts as to her personalty, without interfering with the right of succession of her husband. His right of succession may be a marital right, and vest in him by the marriage; but it vests subject to these rights of the wife, and thus can never interfere with them. There cannot be two antagonistic rights of possession and enjoyment in different persons in the same property at the same time; and, therefore, the acts of 1848 and 1849 have abrogated the husband's common-law right to the use, rents, and profits of his wife's real estate during their joint lives, and also his common-law right to the disposition of her personalty during their joint lives; but there might be a hundred successive estates in remainder, existing in different persons at the same time, and vested too, limited upon an estate for life in possession, without at all interfering with the estate, right of possession, and enjoyment of the grantee or holder of the life estate; and if you give to the grantee or holder of the life estate in possession, an absolute right or power of disposition of the property, this does not prevent the estate of the remainder-man from being technically vested, subject to such right and power of disposi tion, although it may infinitely diminish the probability and value of the remainder-man's expectant future right of possession. The remainder would be vested, if the remainder-man was a person ascertained, and in being, and capable of taking in possession immediately on the termination of the estate for life in possession, without the holder of the estate for life having exercised his absolute power of disposition. Before the Revised Statutes, a general devise of real estate, without specifying any particular estate, with an absolute power of disposition annexed, gave a fee; but a devise for life in express terms with a like power of disposition, gave only a life estate. (Jackson a. Robbins, 16 Johns., 538.) The article of the Revised Statutes as to "powers," permits future estates to be limited on a particular estate for life or years with absolute power of disposition, except as against purchasers and creditors, Where there is no limitation of a remainder on Vallance a, Bausch. the estate of the grantee of the power, it declares that he shall be entitled to an absolute fee. Before the Revised Statutes there could be a limitation of personal goods, chattels, and money, by way of remainder or executory devise after a bequest for life. (Hyde a. Parratt, 1 P. W., 1; Tissen a. Tissen, Ib., 500; Wescott a. Cady, 7 Johns. Ch. R., 335; Moffat a. Strong, 10 Johns., 12.) But a grant or bequest of goods and chattels for life, with an absolute power of disposition, made the gift as to the first taker absolute, and any ulterior limitation over, void. (Fearne's Exec., Dev., Powell's ed., 167, 226, n.; arguments of counsel in Jackson a. Robbins, 16 Johns.) Yet, if a husband by marriage articles, or post-nuptial agreement, gave his wife her goods and chattels, or the use of her goods and chattels for life, with absolute power of disposition, there is no doubt, in case of her death without having disposed of them, that the husband would have taken them as his own, by virtue of his original right and title as husband. See the cases cited by Mr. Bradford in McCosker a. Golden (1 Bradf., 64), above cited; and Moehring a. Mitchell (1 Barb. Ch. R., 271); and Strong a. Wilkin (Zb., 9). No doubt the rights of the husband to his wife's personalty and in her real estate, which he acquired by marriage, and by the birth of issue, as tenant by the curtesy, being rights given him by law, he could waive or release them absolutely, either by ante or post nuptial agreement; but the point is, that if the instrument went no further than to release and give to the wife her goods and chattels, or the sole and separate use of her goods and chattels, or of her real estate, for her life, with an absolute power of disposition, his right of succession to the goods and chattels, and his right as tenant by the curtesy in her real estate, would have remained in him as husband on her death without having disposed of them. The presumption would have been, that he made the agreement in favor of his wife with a knowledge of his legal rights as husband, and that he did not intend to release them any further than the express words of the instrument, and the specific rights and power thereby given to his wife required. Precisely so, in construing these acts of 1848 and 1849, we are to presume that the Legislature passed them with the knowl Vallance a. Bausch. edge of the husband's common-law rights, and that these rights were not intended to be taken away any further than was necessary to secure to married women, as against their husbands, the free, sole, separate use, and enjoyment, and absolute disposition of their property. These are all the beneficial rights of property that could be conferred on them, or secured to them. An alteration by the statutes of the legal right of succession, or of the legal disposition of their property on their death, without having disposed of it by will or otherwise, would have been, unnecessarily for the declared purposes of the acts, taking rights from the husband, and conferring them, not on his wife, but on others. What principle of public policy or political economy would have induced the Legislature to take away the husband's right of succession to his wife's undisposed-of personalty, and give it to her next of kin, after securing to the wife during her life all the beneficial rights she ever had or could have as a feme sole in or over it? If the force and direction of one's affections while living should direct the legal disposition of property after death, I should not like to believe that a majority of married women would ask for the construction of these acts insisted on by the appellant. No doubt it was competent for the Legislature to abolish or change prospectively the right of succession of the husband to his wife's undisposed-of personalty, and his right as tenant by the curtesy in her undisposed-of realty in which she had an estate of inheritance; but I think the Legislature intended to take away neither right by these acts, notwithstanding the able opinion of Mr. Justice Potter on the latter point, in Billings a. Baker (15 How. Pr. R., 525). I express here an opinion on this question, whether the right or estate of tenant by the curtesy has survived the acts of 1848 and 1849, because the opinion of Judge Potter in the case last cited was particularly cited and insisted on, on the argument of this case; and because I admit, after conceding to the appellant her position in this case, that the husband's right to his wife's undisposed-of personalty on her death, if he has any since the acts, is a right as husband existing initiate in the lifetime of the wife, and which has survived the acts; that the Vallance a. Bausch. reasons above stated to show that such right is not inconsistent with the acts, in the main, apply equally to the question of the husband's right or estate as tenant by the courtesy. Of course both questions are mere questions of intention-how far the acts were intended to operate. If these rights of the husband have been taken away by the acts, it is done by implication. In Bower a. Lease (5 Hill, 226), the court says: "As laws are presumed to be passed with deliberation, and with full knowledge of all existing ones on the same subject, it is but reasonable to conclude that the Legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable. Hence a repeal by implication is not favored," &c. (See also McCartee a. The Orphan Asylum Society, 9 Cow., 437, 506.) Much stress has been put on the words, " and shall continue her sole and separate property, as if she were a single female," and the words, "but shall be her sole and separate property, as if she were a single female," &c., in the first and second sections of the act of 1848; and on the words, " and the same shall not be subject to the disposal of her husband, nor be liable for his debts," in the first section of the act of 1849, as showing these acts to be irreconcilable with the continuance of the rights of the husband in question. As to the words above quoted from the act of 1848, taken literally, they are simply absurd, and would involve a legislative impossibility. The property of a single female cannot literally continue in her after marriage as if she were a single female. The act of 1848 was intended to secure to a married woman the sole and separate use of her property as if she was single, and from the peculiar phraseology above quoted, was probably intended to give her, and probably would have given her, a right to dispose of it (otherwise than of her personalty by will), as if she were single; but the act of 1848, probably, did not remove the disability placed on married women by the Revised Statutes of disposing of their personalty by will (Wadams a. The American Home Missionary Society, 2 Kern., 415); nor have both acts removed the disability of coverture as to her property, so that she Luling a. Stanton. can bind herself personally as a feme sole by her contracts, and thus at law lead to an involuntary alienation of her property by judgment and execution. (Yale a. Dederer, recently decided by the Court of Appeals, not yet reported.) These acts have not therefore in all respects removed the disability of coverture as to the property of married women. They have removed it, so far as it was for their benefit, and no further. Before the personality of married women dying intestate can go to their next of kin, the exception of their estates from the statute of distribution must be repealed-who can say that the acts of 1848 and 1849 imply such repeal, or that such repeal would be for their benefit? So as to the phraseology of the act of 1849," and the same shall not be subject to the disposal of her husband, or liable for his debts;" the act was intended to protect the property of the wife against the husband and his debts in her lifetime. Of what consequence is it to her whether the property is sold for the debts of her husband, or of her next of kin, after her death? For these reasons, which have been stated much more at large than I intended before I looked into the cases bearing on the construction of these acts, I am of the opinion that the decree of the surrogate in this case should be affirmed, with costs. LULING a. STANTON. New York Common Pleas; Special Term, January, 1859. - ACTION ARISING ON CONTRACT, FOR RECOVERY OF MONEY ONLY.FORM OF SUMMONS. The provision of subdivision 1 of section 129 of the Code-which prescribes the form of the notice to be contained in a summons, in an action arising on contract for the recovery of money only-is to be applied only to contracts which, in terms, provide for the payment of money. In an action to recover unliquidated damages for breach of a contract, the sum |