Winton v. Barnum ( 1848 )

Waite, J.

The only material question, presented upon this motion, is, whether the bill of sale from Silliman to Mrs. Benedict, conveyed to her such an interest in the furniture, as that upon her decease, it passed to her administrator, in such manner, as that he may sustain an action at law for the conversion of the property.

In a recent case, we have said, that “ no rule is better established than that personal property, accruing to the wife, during coverture, vests immediately and absolutely in the husband ; or the principle that husband and wile are but one inlaw, and her existence, in legal consideration, is merged in his. Such property is liable to be taken by the creditors of the husband, and applied in satisfaction of their debts.” Morgan v. Thames Bank, 14 Conn. R. 102.

Here was a conveyance of personal property to a married woman; and unless there is something in the case to relieve it from the operation of that rule, the property vested immediately and absolutely in her husband, and the defendant had a legal right to attach it, as his property, and apply it, as he did, in satisfaction of the debts of the husband.

It is said, that here was a conveyance to her sole and separate use. But this, at law, can make no difference. Whatever the form of the conveyance, if made directly to her, the property vests in her husband. Nor can the interest of the parties vary the rule, unless executed in a manner au-thorised by law.

A man may intend to convey, by deed, an estate in fee-simple, and use the clearest language indicative of that intent ; and yet, if he omit the word heirs, the deed will convey but an estate for life.

The object of the father, in this case, might have been accomplished, by a conveyance to a trustee for her use. In such case, the legaltitle would have vested in the trustee ; and a court of chancery would compel him, if necessary, to execute the trust. He could sustain an action at law for any unlawful conversion of the property.

But the difficulty here is, the property, instead of being conveyed to a trustee, was conveyed to the wife; and then the rule of law, treating the husband and wife as one, vests the property in the husband, and clothes him with the legal title. For by the common law, the wife can have no separate property. That object can only be accomplished, by the intervention of trustees. Haselington v. Gill, 3 Term R. 620, in notis.

This doctrine is fully recognised, in a recent case in the English reports. There, by a marriage settlement, certain stock was vested in trustees, in trust to pay to the intended wife the dividends, to and for her sole and separate use and benefit, independent of her husband. The marriage was solemn'ze& and the parties afterwards separated, and so con-until her death. In a bureau, at her lodgings, was tound a sum of money, which was supposed to have been derived from the trust property, as there was no evidence that she had any other source of income. The money was taken, after her decease, by order of one of the executors of her will; and the plaintiff, her husband, brought, an action of debt to recover the money so taken. And the court held, that he was entitled to recover; that as soon as the dividends were paid over to her, they became absolutely the property of the husband. And Coliman, J. said : “ The case of Carne v. Brice, 7 M. & W. 183. appears to go the whole length of the present, and establish, that, although the wife may be entitled to separate property, the dividends arising therefrom vest in the husband. The rule of law is, that in order to protect property from the husband, it must remain in the hands of the wife’s trustees.” Tugman v. Hopkins, 4 Man. & Gran. 389. (43 E. C. L. 205.)

It is further said, that there are cases where the husband will be treated as the trustee of the property of the wife, as in the case of an ante-nuptial agreement. But here was no such agreement. Nor is it shown, that the husband made any agreement, either with the wife or her father. An agreement made by him with the former, in this state, would not be enforced, either at law or in chancery. Fourth Society in Middletown v. Mather, 15 Conn. R. 595.

An agreement with the father, that the husband would hold the property in trust for his wife, might be enforced in chancery, and even render the husband liable in an action at law, at the suit of the father ; but would not give this plaintiff the legal title.

It is indeed stated in the motion, that the husband, after the death of his wife, had knowledge of the conveyance, and assented to the same. But the property, upon the conveyance to the wife, became vested in him ; and no act of his is shown, by which he became divested of his title.

Finally, it is claimed, that the plaintiff, if he has but an equitable title, can recover upon the last count in his declaration, wherein it is alleged, that Benedict agreed to hold the property for the use of his wife, and upon her decease, to transfer it to her legal representative, but was prevented from so doing, by the attachment of the defendant; and the case of Coleman v. Wolcott, is relied upon, to support the claim.

There the foundation of that action was fraud. Here none is alleged or proved. The case at most is but an ordinary case in trover for the conversion of property, for which the remedy is in favour of him who is entitled to the possession.

It seems to us, therefore, that the evidence offered by the plaintiff, showed no title in him, but one in Benedict; and we therefore advise a new trial.

In this opinion Stobrs, J. concurred, without qualification.