Coakley v. Chamberlain. COAKLEY against CHAMBERLAIN. New York Superior Court; General Term, Nov., 1869. ACTION AGAINST REMAINDER-MEN AND HEIRS.-LEASE BY TENANT FOR LIFE.-POWERS OF MARRIED WOMEN. An action for damages for the breach of a covenant of quiet enjoyment, contained in a lease executed by a person having a life estate in the premises, which breach was occasioned by the death of the life tenant, will not lie against the executor of such life tenant and the remaindermen jointly, nor against the remainder-men in any form. The mere fact that the remainder-men, by an action instituted for that purpose, collected the rent reserved by the lease, from the death of the life tenant up to the time of the final partition of the premises, cannot be construed into an adoption and ratification of such covenant on their part. An unexpired lease, executed by a person having only a life estate in the demised premises, becomes void and inoperative upon the death of the life tenant as against the remainder-men, and from that time constitutes no further lien or incumbrance upon the premises. ent" before the word "hope;" but on reading it over to the deceased, she suggested the words "at present." She said, "No hope at present of my recovery." The word "present" was accordingly interlined by the clerk. The other evidence was such that the conviction rested on the admissibility of this declaration. Held, that it was not admissible. "The result of the decisions is," said KELLY, C. B. "that there must be an unqualified belief in the nearness of death; a belief without hope that the declarant is to die. ...... We, as judges. must be perfectly satisfied beyond a reasonable doubt that there was no hope of avoiding death; and it is not unimportant to observe that the burden of proving the facts that render the declaration admissiole is upon the prosecution." BYLES, J., who admitted the declaration on the trial, reserving the question, concurred in quashing the conviction. He said, "In order to make the dying declaration admissible, there must be an expectation of impending and almost immediate death. The authorities show that there must be no hope whatever." Coakley v. Chamberlain. No tenure and no relation necessarily exists between remainder-men and the tenant of the life-tenant. The acts of 1848 and 1849 did not confer any greater authority upon married women to make contracts generally, than previously existed, and did not remove the legal incapacity of a married woman to enter into a personal obligation; nor did those acts authorize a married woman to charge her separate estate for a debt which did not arise in connection with it, or which was not contracted for her own benefit, or the benefit of her separate estate. The reported cases arising under these acts, reviewed, and the case of Kolls v. De Leyer (41 Barb., 208), explained. Where a married woman, having a life estate in certain premises, executed, prior to the year 1860, a ten years' lease of such premises, with a covenant contained therein, that on payment of the rent thereby reserved, the lessee might quietly have and enjoy the said premises for the full term, and thereupon died before the expiration of the term, and the lessee was dispossessed by the remainder-men;-Held, that no action for damages occasioned by the breach of such covenant could be maintained by the lessee against the executor of such married woman, in the absence of proof that the covenant was for benefit of her separate estate Appeal from a judgment. This action was brought by Andrew Coakley against James F. Chamberlain, sole surviving executor of the last will and testament of Mary Ann Burdock, deceased. Mary Ann Seaman. Charlotte Maria McKenzie. William Henry Burch, Emily Jane French. George Frede rick Burch, and Matilda Angusta Burch. It appeared that one William Burch was, at the time of his death, the owner in fee of premises No. 326 Eighth-avenue, in the city of New York, and, by his will, gave the use of said premises to his wife, Mary Ann Burch, during her natural life, and the fee to his children. In 1856, the widow of William Burch became the wife of Paul Burdock, and they lived together as husband and wife until her death in 1864. In 1857, while the wife of Paul Burdock, she leased to the plaintiff the said premises for the term of eleven years, by lease, duly executed and recorded, at a yearly rent of seven hundred and fifty dollars; and, in that instrument, covenanted for herself only that the plaintiff, on paying the said yearly rent, &c., should Coakley v. Chamberlain. peaceably and quietly have, hold, and enjoy the said demised premises for the term aforesaid. In 1864 before the term expired, she died, and the children of William Burch commenced an action in the supreme court for a partition of the premises, making the plaintiff a party; and, on March 3, 1835, julement was entere in said action adjudging that William Burch died seized of the premises; that Mary Ann Burdock had only a life estate therein; that upon her decease plaintiff's lease became void and inoperative, and constituted no further lien or incumbrance on the premises. Under this jugment the premises w re soll, the plaintiff dispossessed, and the proceeds distributed amongst the heirs of William Burch, deceased. After Mrs. Burdock's death, the said heirs received the rent for the premises from the time of her death up to June 1, 1865. The action was based upon the breach of Mrs. Burdock's cov nant of quiet enjoyment, and was brought to r cover, as damages, the value of the unexpired term in said lease. The defendant Chamberlain was sued as the executor of the last will and testament of Mary Ann Burdock, deceased, and the other defendants as heirs, who received the proceeds of the sale in partition, and the rent of the premises from the time of Mrs. Burdock's death up to June 1, 1865. The action was commenced in June, 1865, and tried before the court and a jury in November, 1867. When the plaintiff rested, the evidence substantially disclosed the foregoing state of facts; and the counsel for Mary Ann Seaman, Charlotte Maria McKenzie, William Henry Burch, Emily Jane French, George Frederick Burch, and Matilda Augusta Burch, the heirs-at-law, thereupon moved to dismiss the complaint against them. The court granted the motion, and plaintiff excepted. Counsel on behalf of the only remaining defendant, James F. Chamberlain, sole surviving executor of Mary Ann Burdock, deceased, introduced some further evi dence establishing the marriage between Paul Burdock Coakley v. Chamberlain. and Mrs. Burch; and that thereupon they lived together as husband and wife, until she died, and also introduced and read in evidence the will of William Burch, deceased. At the close of the testimony, the jury, under the direction of the court, found a verdict for the defendant Chamberlain, to which direction and finding plaintiff excepted. The court directed the exceptions to be heard at the general term in the first instance, and that judgment in the meantime be stayed. S. B. Noble, for the plaintiff. R. II. Bowne and C. H. Hinnau, for the defendants. BY THE COURT.-FREEDMAN, J.-The defendants, Mary Ann Seaman, Charlotte Maria McKenzie, William Henry Burch, Emily Jane French, George Frederick Burch, and Matilda Angusta Burch, were not, in respect to the premises in question, the heirs of Mrs. Burdock, but of William Burch. Therefore, the statute, by which the heirs and devisees of any person who has made any covenant or agreement are held answerable upon such covenant or agreement, to the extent of the lands descended or devised to them, does not apply to them, and the mere fact that they collected rent up to the time of final partition, cannot be construed into an adoption and ratification by them of the covenant for quiet enjoyment contained in plaintiff's lease. They were remainder-men, and between them and the plaintiff, as tenant of the life tenant, no tenure and no relation existed. When the partition of the premises took place, the rights of all parties, including the plaintiff, were judicially determined; the judgment provided for a partition of the premises between such of the parties as had any rights therein, and according to such rights, but at the same time adjudged that the plaintiff had no right or interest whatever, that his lease became void and inoperative upon the decease of the tenant for life, Coakley v. Chamberlain. and from that time constituted no further lien or incumbrance upon the premises. This judgment must be deemed a complete and final determination of the rights of the plaintiff as against the remainder-men. Nor can this action be maintained against the heirs. against whom a dismissal of the complaint took place, upon the ground of receipt of assets, as next of kin, under 2 Rev. Stat., 451, § 23. Whatever assets may be deemed to have been received by them, belonged to the estate of William Burch, deceased, and not to the estate of Mary Ann Burdock. There was no evidence to show that any of the assets belonging to her estate were ever paid or distributed to these persons, as next of kin or legatees, by her executor, so as to entitle the plaintiff, as a creditor, to institute an action against them. Again, the same defendants could not be proceded against upon the theory that they were the heirs of Mrs. Burdock, until after the expiration of three years from the time of the granting of letters testamentary to her executor, for the statate expressly prohibits it (3 Rev. Stat., 5 ed., 197, § 64); and even then they could be beld liable only for a debt of the testatrix, upon proof either that the deceased left no personal assets within this State to be administered, or that the personal assets of the deceased were not sufficient to pay and discharge the same; or that, after due proceedings before the surogate, and at law, the plaintiff, as a creditor, has been unable to collect such debt, or some part thereof, from the personal representatives of the deceased, or from her next of kin, or legatees (2 Rev. Stat., 452, § 33, as amended by Laws of 1859, 293); and in such case the heirs could not be joined as defendants in the action with the executor (11 Barb., 271; 3 N. Y. [3 Comst.], 261). In any aspect of the case, the complaint was properly dismissed against the heirs. Whether the verdict, as directed, was right as to the remaining defendant, depends upon the question whether Mrs. Burdock, as a married woman, had the legal capacity to enter into the covenant, which forms |