The rule of the common law, which authorized the husband to hold the property of his wife, by virtue of administration, has been extended in this State, so as to entitle him to hold the same also by virtue of his marital rights, and numerous cases sustain this doctrine. In the case of Ransom v. Nichols ( 22 N.Y. 110), it was held that, where a married woman, possessed of separate personal estate, dies without having made any disposition of it in her life-time, or by way of testamentary appointment, the title thereto vests in her surviving husband, and cannot be affected by the granting of administration upon her estate to any other person. In the case cited, letters of administration had been taken out by a third person upon the wife's estate, and an action was brought against the maker of a note to recover the amount of the same, which note was originally given to the deceased wife, and afterward renewed payable to the husband and held by him. It appeared upon the trial that the amount of the note had been settled with the husband and taken up and canceled. It is said in the opinion: "The property, then, in this case, stands precisely upon the footing of choses in action of the wife, which have not been reduced to possession during the coverture.

The opinion reviews the line of decision and legislation in that state. See also Ransom v. Nichols, 22 N.Y. 110; Olmsted v. Keyes, 85 N.Y. 593; Barnes v. Underwood, 47 N.Y. 351, where this subject is very thoroughly discussed. We think this rule is in accordance with sound reason.

He may then release them or take payment of them without administration, if he can get payment. ( Ransom v. Nichols, 22 N.Y. 110.) If administration is needed to reduce the choses to possession, he is entitled to it, and if there are no debts the administration is solely for his benefit. If, after his wife's death, the husband does not release, assign or reduce to possession her choses in action during his life-time, then after his death his personal representatives are entitled to administration upon them for the benefit of his estate as part of his assets.

The defendant demurs. It is the settled law in this State that upon the death of a wife, intestate and without descendants, the title of her personal property of all kinds at once passes to and vests in her surviving husband, and this notwithstanding our Married Women's Acts, which have secured to a wife during coverture the same rights to her separate property and the disposition thereof that she would have enjoyed if unmarried ( Gittings v. Russel, 114 App. Div. 405; Robins v. McClure, 100 N.Y. 328; Ransom v. Nichols, 22 id. 110), and that this title is derived solely from the jus mariti is now also well settled. In Barnes v. Underwood ( 47 N.Y. 351) it was intimated that in such a case the husband's title was derived through his right to administer, but this view was distinctly repudiated in later cases.

In this State this right of curtesy can be destroyed only in one of two ways, to wit, either by a conveyance of the property by the wife during her lifetime, or by a testamentary bequest of the real property to take effect after her death. If she fails to dispose of her real property in one of these two ways the right of curtesy still obtains. ( Ransom v. Nichols, 22 N Y 110; Hatfield v. Sneden, 54 id. 280.) If, then, the will of the testatrix was, by the birth of her son after the will was made, annulled or revoked pro tanto as to his share of the estate, as all the authorities hold, and he takes that share not as legatee but as heir at law by descent, it follows that as to that portion of the estate the testatrix made no valid testamentary disposition, and, consequently, did not cut off or destroy her husband's right to a tenancy by the curtesy.

( Hatfield v. Sneden, 54 N.Y. 280; Burke v. Valentine, 52 Barb. 412; affd., [Ct. App.] 6 Alb. L.J. 167; Ransom v. Nichols, 22 N.Y. 110; Barnes v. Underwood, 47 id. 351; Leach v. Leach, 21 Hun, 381.) So whatever its nature was it is; from whatever it formerly sprung it at present arises.

IV. No time was fixed in which defendant was to pay the taxes and water-rents; as part owner he was interested in having it done, and if the plaintiffs are prejudiced by his delay in payment, they may file a bill to compel payment, but cannot sue for breach of his contract so long as it remains lawful for him to pay (Campbell v. Macomb, 4 Johns. Ch. 534, 538;Hale v. Omaha Nat. Bk., 47 How. Pr. 201;Frazer v. Western, 1 Barb. Ch. 220). V. The judgment was erroneous because Brittania Wakeman was made a party plaintiff, and allowed to recover, although not entitled to anything (Leach v. Leach, 21 Hun, 381; Ransom v. Nichols, 22 N. Y. 110;Hatfield v. Sneden, 54 N. Y. 280). The misjoinder was fatal ( Code Civ. Pro. § 488), and was properly set up in the answer ( Id. § 498).