ANTE-NUPTIAL AGREE MENT. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. the widow where there are no minor children. Daniel W. Guernsey, for applts. In re estate of David Young, of 1849, all contracts made be deceased. Decided May, 1882. An ante-nuptial agreement which provides for the payment of a certain sum to the widow "in lieu of dower, or her rights as tween persons in contemplation of marriage shall remain in force after such marriage takes place. That the agreement in the present case is a good ante-nuptial agreement, even under the case of Cur widow in his estate," and that she agreed ry v. Curry, 10 Hun, 366. It makes to receive the same in full satisfaction of her dower in his estate, either in his real or personal estate," releases her right to the articles set apart by statute for the widow in cases where there are no minor children, and the cases holding that an exemption law cannot be waived do not apply. An ante-nuptial agreement was made under seal between the deceased and his (now) widow, whereby she was to receive upon his death fifteen hundred dollars, with interest from the day of his decease, "in lieu of dower, or her rights as widow in his estate," and she covenanted to receive the same in full satisfaction of her dower in his estate, "either in his real or personal estate." She was to retain her own property with power to dispose of the same by will or during her life. The will of the deceased makes the provision for the $1,500. It also gives certain furniture and an annuity of $100 during widowhood. The deceased left no minor child. This is an appeal by the executors from that part of a decree of the Surrogate of Dutchess County allowing the widow the articles specifically set apart by statute to a provision in lieu of dower and of the rights of the widow in the husband's estate. The principle decided in the case that such a consideration must be proven to uphold an agreement made in contemplation of marriage does not seem to be supported by any good reason. It was an agreement under seal. It was an instrument containing mutual covenants. It was in contemplation of marriage. It was declared good after marriage, by statute, between the parties. That ante-nuptial agreements in favor of the wife have always been favored in equity. 71 N. Y., 154. The only remaining question is as to the force and construction of the agreement. It is provided by statute that "if there be a widow and no minor child," certain articles specifically mentioned shall belong to the widow. The dispute is as to these articles. The agreement is plain that the husband covenanted that upon his death the widow should have $1,500, with interest from the day of his decease, "in lieu of dower, or her rights as widow in his estate." ed that she would receive the same in full satisfaction of her dower in his estate, "either in his real or personal estate." She was to retain her own property, with power to dispose of the same by will or during her life. The will makes the provision for the $1,500. It also gives certain furniture and an annuity of $100 during widowhood. The case is not one involving the rights of any person except the widow. There is no minor child, and the cases holding that the exemption law cannot be waived have no application. The sole question is, can a widow release for a good consideration a title to become vested in her on her husband's death? The widow covenant She can as well release this provision as she can dower. That the agreement is drawn so as to include this property there can be no reasonable doubt, if the same effect is to be given to the paper as is given to other agreements; for a certain sum the covenant is "in lieu of her dower rights as widow, either in his real or personal estate." My conclusion, therefore, is that the widow is not entitled to the articles in question. Decree modified accordingly. Opinion by Barnard, P. J.; Dykman, J., concurs; Gilbert, J., dissents. EVIDENCE. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Robert Beales, applt., v. James Lyons, respt. Decided May, 1882. Books of account are admissible in evidence, after the party offering them has shown that they were examined by the opposing party to the action before the commencement thereof, and admitted by him to be correct, as an admission of the defendant. A payment upon account of an admitted balance is admissible as evidence of a recognition of the bill upon which the payment was made. This was an action for goods sold. The account commenced in the early part of 1874 and continued until July, 1879. There had never been any settlement during the continuance of the account between the parties. The plaintiff was sworn upon the trial and testified that he and the defendant met at the plaintiff's place of business after the close of the dealing between the parties, and looked over the books of the account and the defendant said he was "satisfied the account was right." The defendant, at the time he examined the books with the plaintiff, had a statement rendered in January or February preceding. This showed a balance due the plaintiff of $1,552.60. Upon this state of facts the plaintiff offered his books in evidence and they were excluded. He also offered to prove a payment subsequently made upon the account by defendant, and this was refused. Judgment was upon the referee's report rendered for defendant, dismissing the plaintiff's complaint. H. D. Birdsall, for applt. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. George E. Sheldon, respt., v. Razo Combs, applt. Decided April, 1882. The widow of a deceased intestate owner of lands had become the purchaser of such lands at a sale in partition and was in possession prior to completing the purchase. Held, That as widow, as guardian in socage of the heirs at law, and as holding an executory contract to purchase the lands, she was rightfully in possession, and it was her duty to made the lands productive. The widow made a contract with the defend ant to cultivate the land on shares. Subsequently she failed to complete her purchase and the property was resold and bought by the plaintiff. Plaintiff cut the crop which defendant had sown under his contract, and defendant entered and took it away. Held, That defendant was a tenant in common of the crop, and that only an entry under paramount title or disseizure by a third party of the party by whose consent the land was cultivated could deprive him of his interest in the crop. The sale to the plaintiff was set aside by an order made before the alleged act of conversion, on proof that the widow had been insane, but the order provided that plaintiff should have the growing crops. Held, That as defendant was not a party to that action, VOL. 14.-No. 16a, and his rights accrued prior to the order, he was not bound or estopped thereby and it could not operate to transfer his property to the plaintiff. Appeal by defendant from a judgment entered upon a verdict. The action was for conversion of a crop of wheat. a crop of wheat. J. L. Combs, being the owner of a farm, died intestate in 1875, leaving a widow and four children, two of whom were children of a former wife. In July, 1876, this farm was sold in partition to Mary E. Combs, his widow. Before the expiration of the time to complete this purchase, Mrs. Combs, being then in possession, made an agreement with defendant to cultivate the land for her and give her half the product, and defendant sowed a crop of wheat. In March, 1877, Mrs. Combs having failed to complete her purchase, the land was resold and bought by plaintiff, who had knowledge of defendant's contract. In June, 1877, Mrs. Combs having become insane, her committee procured an order setting aside the sale to plaintiff, but providing that he "shall have all the crops now growing upon said premises, and the right to go on, cultivate, harvest and remove the same." On July 21st, plaintiff cut and bound the wheat crop, and on July 23d, defendant entered and took it away. His act in so doing constituted the alleged conversion. Horace L. Bennett, for applt. J. M. Dunning, for respt. Held, That Mrs. Combs' possession of the land was lawful. She was in possession under an executory agreement to purchase. As the sale to plaintiff. He is therefore not bound or estopped by reason of the order from maintaining any interest in the wheat which he previously acquired. widow, she was entitled to a dower | and to As such guardian in socage it was her duty to make the interests of her wards in the land produc tive. Held further, That the defendant and Mrs. Combs under their agreement became tenants in common of the crop. Any subsequent conveyance of her interest in the land would not deprive him of his share of the crop. It is only where another enters by paramount title or by disseizure by a third party of the party by whose consent the land was cultivated that the person who works the land upon shares can be deprived of his interest in the crop. 49 N. Y., 24. Held further, That the plaintiff entered into possession of the land as purchaser with notice of defendant's agreement. His title as purchaser has been set aside, and his only title is by reason of the order providing that he shall have the crops. Whilst this order doubtless operates to transfer to him the interest of Mrs. Combs in the wheat, we are of opinion that it does not reach or transfer the interest of the defendant therein. The defendant was not a party in that action nor upon the motion. The right he had to the wheat accrued prior to the order Judgment reversed and new trial ordered, costs to abide the event. Opinion by Haight, J.; Smith, P. J., and Hardin, J., concur. PARTNERSHIP. ING. ACCOUNT N.Y. SUPREME COURT. GENERAL Orville W. Ranney, respt., v. Decided April, 1882. In an accounting to determine the amount of the profits of a business conducted by two persons after its termination, where one person had title to all of the property and the other was to have one-half of the net profits, a reasonable valuation of the goods of the concern still on hand is proper to be included as part of the profits. Appeal from a judgment in favor of plaintiff entered on the report of a referee. The parties to this action made a written agreement to deal together in salt. The plaintiff was to do the work, and the defendant was to furnish the money. The title of the property was to remain in the defendant, and the plaintiff was to have for his services a sum equivalent to one-half the net. profits at the termination of the business. Action brought to ascertain the amount of the profits and to recover the sum claimed by the plaintiff. The referee had found, as a fact, that the defendant had, at the close of business, appropriated all the assets and avails acquired thereby; that such assets and avails were reasonably worth $1,770.50, and this sum he had included on the credit side of the balance sheet in the calculations upon which his report was based. The appellant relied upon this point as an error. to the foreclosure, but solely to the claim for insurance. The plaintiff sought to recover on the ground that the covenant to insure runs with the land, also on the ground that the defendant McCrum had promised to take out insurance on said premises and have the loss first payable to plaintiff, and that plaintiff had certain policies issued with loss first payable to plaintiff, which said Mc Bowen, Rogers & Locke, for Crum afterwards and without respt. Henry Ware Sprague, for applt. Held, That this item was a part of the accumulation of the busi ness, and was properly included in the calculation as going to augment the amount of the profits. Judgment affirmed. Opinion by Haight, J.; Smith, P. J., and Hardin, J., concur. DEEDS. INSURANCE. GENERAL N.Y. SUPREME COURT. GENERAL Decided May, 1882. In the absence of an express agreement to as sume, pay or perform, no agreement will be implied as against a vendee of land who takes his title subject to a mortgage upon it; and a covenant in such mortgage to keep the premises insured and the policy assigned to the mortgagee is not binding upon such vendee. Such a covenant of insurance does not run with the land. This an action to foreclose a mortgage of $10,000 on premises owned by defendant Hugh McCrum and to reach certain insurance moneys for premises destroyed by fire. No defence was made plaintiff's knowledge or consent Jackson & Burr, for applt. Held, That in the absence of an express agreement to assume, pay or perform, no agreement will be implied as against a vendee of land who takes his title subject to a mortgage upon it. 76 N. Y., 141. That the covenant to keep the premises insured and the policies. assigned or made payable to plaintiff was not one which the defendant McCrum was bound personally to perform. In case a mortgagor effects an insurance upon the mortgaged premises, the mortgagee can claim no benefit from it unless he can base |