When this case was first before this court (45 N.Y., 723) it was held that when a party loaned money and took a note therefor payable to the order of himself and wife, it constituted a gift of the note to the wife if it remained unpaid in the hands of the husband at the time of his death and the wife survived him. (See opinion of PECKHAM, J., and authorities cited.)
It was further held that the plaintiff was not put to her election between taking the note as survivor and the provision made for her in the first clause of the will of her husband. By that clause the testator gave to the plaintiff certain real estate, together with certain specified articles of personal property and a legacy of $10,000 in cash, all of which was to be accepted and received by her in lieu of dower, and every and all claims upon his estate. Although this point was not discussed in the opinion, it was in the case and must have been considered, as the new trial was ordered for the exclusion of evidence which would have been wholly immaterial had the plaintiff been required to elect between taking the note and what was given her by the will; that she was not put to her election is manifest for the reason that the plaintiff's right to the note, in case she survived her husband, was vested in her wholly, independent of the will. The husband had already given her this right and it was her's, and constituted no part of his estate at the time of his death. She did not acquire the note as a part of his estate at the time of his death, but under a title which he had before given. There is no ground upon which the plaintiff can be estopped from claiming title to the note. True, when a committee of the husband's estate was appointed she delivered this note as part of the property of her husband, and after his death received it back as his property and gave it to the appraisers of his estate as a part thereof and it was inventoried as such *Page 73 with her knowledge. This was evidence tending to show that by some arrangement between the plaintiff and her husband she had released to him her right of survivorship, and the court held that the evidence should have been received for this purpose. But it was proved upon the last trial that these acts of the plaintiff were done in ignorance of her right to the note; and evidence was given tending to show, and the judge in substance found, that the plaintiff had not made any agreement with her husband by which she transferred to him her contingent right to the note. There was no evidence showing that any one had, in any respect, changed his situation in consequence of these acts, or that any transaction had been had in reliance thereon. Hence, there is no foundation for an estoppel. I have examined the exceptions taken to the rulings as to the competency of evidence and think that no error was committed.
The judgment appealed from must be affirmed.
All concur.
Judgment affirmed.