Avnet v. Avnet

• Citation: 204 Misc. 760
• Parties: Mildred Avnet, Plaintiff,<BR>v.<BR>Emanuel Avnet, Defendant.
• Decision Date: 15 September 1953
• Court: New York District Court

204 Misc. 760

Mildred Avnet, Plaintiff,

v.Emanuel Avnet, Defendant.

September 15, 1953.

Morris Berler for plaintiff.

Louis N. Forman for defendant.

CHIMERA, J.

Plaintiff wife institutes this suit in conversion, against defendant husband, to recover the value of furniture, household furnishings and personal effects, claimed by the former to be her exclusive property. The basis of her contention rests upon her story that she alone purchased the items in question from her own personal funds (with the exception of some $200 worth of linens admittedly brought into the household by the husband); that all wedding gifts were in cash and delivered to her personally almost entirely by friends and relatives on the bride's "side"; that they amounted to $1,000 approximately; that a goodly portion of this amount was spent on the honeymoon and the balance was absorbed by the husband in the purchase of personal items of clothing and other expenses.

All of plaintiff's important assertions are sharply contested by the defendant, particularly the amount of cash gifts and the source from which the money came. Defendant husband claims that the total amount was closer to $2,400 and that most of it was given by friends and relatives on the groom's "side". Neither denies that the wife had the ultimate control of the funds or such of them as were left over after the honeymoon, and both agree that a substantial portion of the cash was deposited in the wife's personal bank account and commingled with her own moneys. No statement is made by either party that any of the donors attached any conditions or requests to their gifts.

This is the pathetic and often repeated story of the bride who could not tear herself away from her parental domicile and of the groom who did little if anything to make her assume her proper place and responsibility in the new home. Their marriage has degenerated into a game of "who shall torture whom" and their child has become the tragic victim of their spite and malice. The game was started in some other tribunal and this court is only a stopping place on their weird journey.

Both counsel move for a directed verdict at the end of the case, the plaintiff contending as a matter of law that the chattels are the property of the wife because they were purchased with her own funds, or, in any event, if purchased by gift moneys, the gifts were the property of the bride and therefore the purchases were hers. The defendant on the other hand contends that the purchases were made from gift moneys as a matter of law belonging to both parties and that, in any event, the complaint must fall because plaintiff has failed to establish the value of the chattels at the time of the alleged conversion. On these motions the jury was discharged and decision was reserved by the court.

Ever since man came to abandon the nomadic life, settled in communities and divided the land so that each had his own property, he began to select his women and from that day to this marriage in some form or other has become an honored institution bringing with it myriad questions, moral and legal.

One would think that, after so many centuries of marital experience, all of the rights of the parties to a marriage will have been determined by some judicial tribunal and that at least the question who is entitled to possession of the household furniture and effects will have been settled by now, so clearly that many of the popular misconceptions of the day will have been avoided.

Prior to the enactment of chapter 200 of the Laws of 1848, chapter 90 of the Laws of 1860 and chapter 172 of the Laws of 1862 — ("Enabling Acts") — the issue would have been simple of solution. Then a femme covert was little more than a chattel herself (juridically speaking) and everything she owned became the property of the privileged male, her spouse. Advancing civilization brought with it some refinements however, for even then the courts came gradually to the view that she should be allowed exclusive possession of the things peculiarly adaptable to her own use — such things as her wearing apparel and other items of female adornment. Valuable jewelry however, even though given to her as a gift by the husband, continued to be his property and subject to distraint by his creditors. (Whiton v. Snyder, 88 N.Y. 299, 303.)

With the advent of the "Enabling Acts" woman became free to own her own property and from that day to this the popular misconceptions above-referred to, have come into being. Lawyers and laymen alike have been heard to say at one time or another, that household furniture and effects are presumed to be the property of the husband, the property of the wife, and then again the property of both jointly, this without regard to who purchased it or who brought it into the marital domicile.

One thing is clear and that is that no presumption in law exists as to the ownership of such items used in common by husband and wife where they were purchased with the funds of the husband or the wife or with the funds of both of them. In each case title depends on the facts.

Except for articles adapted plainly to the wife's separate and personal use, and so actually used by her, such as wearing apparel and/or ornaments (even though given to her by her husband), all "articles of a different character, such as furniture and household goods, adapted to the use of and used by the family generally, and in their common possession, a different rule must apply." (Whiton v. Snyder, supra, p. 305.)

Implicit in this decision, title must be proven either by conclusive evidence of sale or of gift and no presumption obtains.

In Tyrrell v. York (57 Hun 292), the controversy involved furniture formerly owned by the husband and brought by him into the marital domicile. It was there held that when husband and wife are living together under these circumstances, an executed gift may not be proven by mere evidence of possession where there was nothing to show her possession beyond ordinary family use. Here again, no presumption of ownership was indulged in, in favor of the wife. Vice versa — the simple appropriation of any portion of her personal property to household use by the husband and wife, or the husband alone, even with her consent, was held not to render it the property of the husband. (Fitch v. Rathbun, 61 N.Y. 579.)

Matter of Spingarn (111 N. Y. S. 2d 173) is an interesting case. This case clearly indicates that there is no presumption of ownership of household furniture in the wife and if a gift is claimed, title must rest upon clear proof of delivery and acceptance. The case concerned household furniture in an apartment and in a farmhouse part of which was the husband's before the wife came into the picture. Sufficient proof of gift of the apartment furniture within the meaning of the law was predicated upon the following facts: 1. Declaration by the husband. 2. Exercise of control and dominion by the wife. 3. Active participation by the husband in a sale by the wife, and 4. transfer by the husband of the fire policies on the furniture from his name to that of his wife. The ruling was against the wife in connection with the farm furnishings, evidence of acts of dominion and of delivery not having been proven to the satisfaction of the Surrogate.

Tassell v. Tassell (N. Y. L. J., March 5, 1947, p. 883, col. 1) is a case where among other things a trust was sought to be impressed on furniture and household effects. The court found as a fact that the chattels were purchased with the wife's exclusive funds and ruled that no trust expressed or implied existed in favor of the husband.

All of the foregoing is true in spite of the tendency of the Legislature in recent years to reserve to the surviving spouse an inalienable quantum of household effects (Surrogate's Ct. Act, § 200), and rightly so, for the rules that apply to the disposition of decedent's estates are grounded on considerations other than the facts of title or gift to be gleaned from the conduct and acts of the living.

But what of household goods and furniture purchased with money wedding gifts or which came as gifts in kind? Does it make a difference whether the money or the object itself was delivered into the hands of the bride or of the groom — whether it came from the bride's "side" or from the groom's "side". This is the most intriguing question which this court is called upon to answer.

The authorities which I am called upon to examine are few and elusive to put it mildly. Indeed I find that only Emily Post presumes to speak with confidence in this regard. (Post on Etiquette [1932 ed.], p. 322.) "Wedding presents are all sent to the bride, and are, according to law, her personal property." (Italics ours.)

It may be that in "polite" society all wedding presents are sent to the bride and as Miss Post goes on to say: "The bridegroom seldom receives presents. Even those who care about him in particular and have never met his bride, send their presents to her, unless they send two presents, one in courtesy to her and one in affection to him."

The fact is however that not all wedding guests have been trained in the niceties of "polite"...