Bibb v. M'Kinley , 9 Port. 636 ( 1839 )

COLLIER, C. J.

In real estate, the husband gains a title only to the rents and profits during coverture, but the estate itself remains entire to the wife, after the death of her husband, or to her heirs, if she dies before him ;- unless by the birth of a child, he becomes- tenant for life by the curtesy. But in chattel interests, the sole and absolute property vests in the husband, to be disposed of at his pleasure, if he chooses to take possession of them; for Unless he reduces them into possession, no property vests in him, but they shall remain to the wife, or to her representatives, after the coverture is determined.

A chattel real, vests in the husband sub modo; as, in the case of a lease for years, the husband shall receive all the rents and profits of it, and may, if he pleases, sell or dispose of it during the coverture: it is liable to execution for his debts: and if he survives his wife, it is, to all intents and purposes, his own. Yet, if he has made no disposition thereof in her lifetime, and dies before his wife, he cannot dispose of it by will: for the husband having made no alteration in the property during his life, it never was transferred from the wife. Such is also the law in regard to chattels personal, or choses in action: as debts upon bond, contracts, and the like; these the husband- may have, if he reduces them into possession, by receiving them, or recovering them at law. And upon Such receipt, they are absolutely,and entirely his own; and shall go to his executors or administrators, or as he Shall bequeath them by will, instead of re-vesting in the Wife. But if he dies before he has recovered or reduced them into possession, so that at his death they still continue choses in action, they shall survive to the wife. In both these species of property, the rule is the same, in Case the wife survives the husband : but in case the husband survives the wife, it is very different at common law, with fespect to chattels real, and choses in action ; for he shall have the chattel real, by survivorship, but not the chose in action.

In respect to chattels personal, or choses in possession, which the wife hath in her own right, as ready money, &c. the husband acquires an immediate and absolute property therein by the marriage, not only potentially, but in fact, which never can again re-vest in the wife, or her representatives — (2 Bla. Com. 433, 434, 435.) Such is the law, as laid down by the learned ' commentator upon the English Law; and it was affirmed by this court in Johnson adm’r vs. Wren, 3 Stew. Rep. 172; Mayfield vs. Clifton, ibid. 375; and in Hogan vs. Bell and wife, 4 Stew. & Por. R. 310, — so far as it relates to the personal chattels of the wife in action.

In Mayfield vs. Clifton, the plaintiff filed his petition in the Orphan’s court., in which he represented that Thomas Murphy died in eighteen hundred and fifteen, possessed of negroes and other personal property: that his .estate was free of debt; that he left his widow, Frances J., and two infant children; Nancy, of whom the petitioner was guardian — and John, of whom Clifton was guardian — that the widow was appointed administratrix, of the estate by the Orphan’s court, in which the petition was filed, and shortly afterwards intermarried with Cliff ton, and died in eighteen hundred and twenty-seven. Whereupon, the plaintiff prayed that the estate might be distributed according to law. The facts stated in the petition were admitted — and further, it was agreed that the property in question was in the possession of Frances J., from the death of Thomas Murphy, “ till her second marriage, and from that event, in the possession of herself and the said Clifton, till her death, which occurred at the time mentioned in the petition; and that no disr tribution of said property was ever made between the paid Frances, in her lifetime, and the children of Murphy.” The Orphan’s court was of opinion, that Clifton was entitled to the distributive share of his deceased wife, although there had been no distribution made in the lifetime of the wife: but this court reversed its decree, considering it necessary to entitle Clifton to his wife’s distributive share of her estate, that his p>ossession should have been quasi, husband, whereas the facts Showed that his possession was only as administrator in fight of his wife. That the law was correctly stated, we think will not admit of serious controversy — (Wallace et ux. vs. Taliaferro et ux. 2 Call’s R. 447; Schuyler vs. Hoyle, 5 Johns. Ch. R. 196; 2 Kent’s Com, 115, 116; Baker vs. Hall, 12 Vesey’s F. 497; Mitford vs. Mitford, 9 Yesey’s F. 95, 96; Carr vs. Taylor, 10 Vesey’s F. 579; Wildman vs. Wildman, 9 Vesey’s R. 177; Nash vs. Nash, 2 Mad. F. 139; Toller’s Ex’rs, 220, 221; Clancy’s Rights of Women, 2; Sturgineger vs. Hannah et al. 2 Nott & McC. F. 147.)

Property may be said to be in possession, where a man hath both the right, and also the occupation of the thing —it is ip action, where a man hath not the possession, but merely a right to possess the thing. In the latter pase, the thing is said to be rather in potentia than in esse; though the owner may have as absolute a property in, pnd be as well entitled to, such things in action, as to things in possession — (2 Bla. Com. 396, 397.)

Having stated these principles, by which the, marital rights of the husband are to be determined, we proceed fo consider the nature of the interest which the plaintiff acquired by marriage, in the wife’s undivided portion of her father’s estate. To the real estate of the wife, we do not understand that the plaintiff asserts any title, but he seeks an equivalent in money, to the extent of one-third the value of the realty belonging to the testator’s estate, which the executors have purchased. He further demands an equal interest with his wife’s surviving brothers in the personal estate in possession, and in the debts due, &c. The will clearly shows, that the executors possessed the entire confidence of the testator, and confers a large discretion upon them ; yet, as the view we take of the case, does not require an exposition of the will in this particular, we decline to notice further the legality of the powers they have exercised. We will, however, examine the plaintiff’s pretensions, upon the hypothesis that the investment of money in land was un-authorised, and that for the purpose of distribution, it must still be regarded as money. '

We have already seen, that if the share of the plaintiff’s wife, in her father’s estate, was regarded as in action— that not having received or recovered it, he has no right to possess it now. Clancy, in his Rights of Married Women, 109, in enumerating chases in action, mentions “ debts by obligation, contract, or otherwise, for rent, money lent, money had and received, or for the price of work and labor, &c. &c.; also legacies, shares of intestate’s estates, money in the funds, or any other claim to personal property, which has not been reduced into possession.” To the same effect, is Johnson, adm’r, vs. Wren, 3 Stew. R, 175, and Hood vs. Archer et al. 2 Nott & McC. R. 149- The interest of the plaintiff’s wife,was a right to ail undivided third of her father’s estate, in the hands of his executors, and according to the authorities Cited, was in action only.

It has, however, been argued for the plaintiff, that the wife’s interest was not a mere right to the distribution of property in the bands of the executors of her deceased father; but the defendants, McKinley and Hopkins, having been appointed by the will, guardian’s of the testator’s children, and having, in effect, performed the duties pertaining to that olffce, should be held*to account as such, and the possession be taken to have been in that Character.

In Magee vs. Toland, (8 Porter’s R. 36,) it was decided, that the possession of the guardian, is the possession of the ward; and the ward having married, the possession was eo inslanti, transferred to the husband, and the property should be regarded as in his possession, as much as if there had been an actual manucaption. In that case, there was but one slave in controversy, and no one claimed an interest in that slave but the wife of Toland, so long as she lived,

In the case at bar, both the executors explicitly deny that they ever accepted the guardianship of the heirs of their testator, as provided by law in the case of testamentary guardians — (Aik. Dig. sec. 10, 11, p. 221, 222.) They admit that they have discharged the duties of guardians of all the children, and that some of the receipts given them for disbursements about their maintenance, describe them as guardians, but they considered it very immaterial, as they designedly omitted to take upon themselyes, any other trust than that of executors, and the receipts referred to, have been allowed in the settlement of their accounts, as executors. True, there arte instances in which persons taking possession of the estates of infants, have been held to account as guardians, though they may never have received any judicial appointment.

Thus, in Lloyd and wife vs. The Ex’rx of Cannon et al. (2 Dess. Rep. 232,) it appears that Cannon, the testator, (a connection of Mrs. Lloyd,) on the death of her father, took charge of her person and property, and took out such authority as was then to be obtained from the British Board of Police, which was the only semblance of civil authority in Charleston, then held by the enemy as a garrison town. After the restoration of the American government, Cannon, without taking out letters of administration, continued to manage the affairs of his young relation, who lived in his family. A questioh was made, whether Cannon should not be regarded as a wrong-doer, and so not entitled to commission. The court considered that he should rather be commended than censured," for getting possession of the estate as hé did, though he should afterwards have applied for letters of administration; yet he was regarded as a trustee, and as such, equitably entitled to his commissions.

So, if a man intrudes upon an infant, he shall receive the profits but as guardian, and the infant shall have an account against him in chancery, as guardian; for equity will consider him as a trustee. If, however, the infant so elect, he may treat the intruder as a trespasser— (Newburgh vs. Bickerstaff, 1 Vern. R. 295; Morgan vs. Morgan, 1 Atk. R. 488; Mellish vs. Mellish, 1 Sim. & Stu. R. 138; 2 Fonb. Eq. 235, 236.)

The cases cited are unlike the present. In Lloyd and. wife vs. The Ex’rx of Cannon et al. the acts of Cannon were conservative, and considered as justified by the condition of the country at the time — clearly manifesting an intention not to benefit himself alone, but to protect the interest of his young relation. Had he been regarded in equity as a Wrong-doer, his services, though meritorious, would have been uncompensated.

The cases cited from Vernon, &c. only prove that an infant may charge one who tortiously possesses himself of bis property, either as his guardian or a wrong-doer. ‘This right of election results from the fact, that the possession is unafithorised, and it may be more beneficial to the infant, to treat the trespasser as a guardian, than in his true character.

But in the case at bar, the defendants, McKinley and Hopkins-, had a right to the possession of the estate left by their testator, under the express terms of the will. And though they might have accepted the guardianship Of the heirs, and as such, have directed their education; yet it might ’well be questioned, that considering ike char-meter of the trusts imposed upon them by the will, whether they should not, as executors, have retained the possession of the property-. Be this as it may, in point of law, they never were guardians. As executors, they might, and actually did possess and retain the estate committed to their charge, together with its increase: and we cannot now say that they assumed another office, and assign to it their possession.

It is not pretended, that any distribution of the property in the hands of the executors, was at any time during the life of the plaintiffs wife, made or desired. And even supposing that the testator may have left lands which vested in his heirs, yet as we have no statute similar to that of the 32 Hen. Till, c, 37, which gives to the husband arrears of rent due to the wife before her cover-ture, in case of her death, the plaintiff cannot recover any thing for rent — (See Ognel’s case, 4 Co. R. 51.) • Nor have we any statute like the 29 Car. II, c. 3, which enacts, that the husband shall have administration of all his wife’s personal estate, which he did not reduce into his possession during her life, and retain the same to his own use. From a view of all which, it will follow, that the plaintiff can claim nothing under the will of his-wife’s father.

In respect to the woman Rhoda, and children, which are said to have been given to the wife of the plaintiff by her grandfather, it is argued for the defendants, that these cannot be recovered; or if recoverable, not by suit in equity — That the possession of the executors Was adverse to an immediate and exclusive possession in the wife, and not as bailees for her; or if not adverse, their remedy was complete at law. If the first objection is well taken, it is clear, that the possession did not vest ini the wife, by operation of law, and consequently, nothing passed to the husband by virtue of the marriage. We will, however, waive the decision of this question, since it is clear, that if the plaintiff had such a possession of these slaves, as gave him the title, his legal remedy is adequate, and of consequence,- chancery cannot afford him redress.

The hire of Rhoda and her children, must be regarded as a chose in action, and cannot be recovered; unless it be as an incident to a suit in which the slaves themselves are recovered.

The result of our opinion is, that the decree of the chancellor is correct, and it is therefore affirmed, with costs.