Turton v. Turton , 6 Md. 375 ( 1854 )

Mason, J.,

delivered the opinion of this court.

Without remarking upon a fundamental question in this case, viz., the right of the plaintiff to enforce her alleged claim in an action at law, we will proceed to consider the principal issue involved in this controversy, which is the right of the plaintiff, by survivorship, or otherwise, to claim her distributive share of the estate of the late Joseph Fowler, of Louisiana, as against the legal representatives of her deceased husband.

The case rests upon the concession that the payment of this distributive share to Messrs. Dufieff and Fowler, as agents, by the representatives of Fowler, from whose estate the money was derived, was valid, and the estate was thereby discharged from all liability to Mrs. Turton, or any one claiming through her. Under such circumstances the question is, to whose benefit does this payment enure; whether to the plaintiff, by virtue of her survivorship, or as her separate estate, or whether to the estate of her husband ?

The money was paid to these agents on the 2nd of May 1851, and Mr. Turton, the husband, died on the 5tli of the same month.

It will readily be admitted, that if Dufieff and Fowler were the duly constituted attorneys in fact of Mr. Turton, the receipt of the money by the agents would have been equivalent to the receipt by him. This would have been, to all intents and purposes, a reduction into possession by the husband of the claim of the wife, and would preclude her from setting up afterwards any right to the same by virtue of survivorship.

But it is asserted that Dufieff and Fowler were not the agents of the husband, but were in fact the agents of the wife. If this were true, the payment to them would be regarded as payment to her. We cannot perceive that this view would vary the case in any material particular.

If a debtor of a married woman pays to her during coverture the debt due, the payment enures to the benefit of the husband and the money becomes absolutely bis. And in like manner the husband is entitled absolutely to all sums of money which may be received by a third person on her account during the marriage. Abbot and wife, vs. Blofield, Cro. Jac., 644. Bidgood vs. Way, 2 Sir Wm. Black., 1236. And if the husband and wife authorise a third person to receive her chose in action, who accordingly does receive it, her right to survivorship is completely destroyed by such receipt, although it should never reach the possession of the husband, 1 Rol. Abr., 342; Clancey on Husband and Wife, 112; and so if husband and wife unite in a letter of attorney to another to collect a legacy, and he receives it, by that act the property becomes vested in the husband alone. Huntley vs. Griffith, Moore, 452. Clancey, 112.

We therefore do not think the question of survivorship is properly involved in this case. In fact there was no chose in action to survive at the time of the husband’s death. By the act of payment to Messrs. Dufieff and Fowler, which was made in the lifetime of the husband, the obligation which constituted the chose in action was fully discharged by the debtors, and thus became extinct. In other words, it had thereby became reduced to possession, whether by the husband or wife was immaterial. The position taken by the appellee’s counsel, that the power of attorney furnishes evidence that the husband did not intend to reduce this chose into possession, cannot be maintained. This result was not dependent upon the intention or wish of the husband, but was the legal consequence of the act of payment. The debtor had a right to discharge his debt, and by the act of payment the chose in action was gone, and with it all its incidents, including the right of survivorship in the wife, and the result would be the same whether the agents to whom the payment was made were the agents of the husband or wife, as we have already shown.

Unless therefore we can discover that this money, which was derived from the Fowler estate, was to be treated as the separate estate of Mrs. Turton, we must regard it as having absolutely vested in the husband, by virtue of the payment to Dufieff and Fowler.

There is no pretence that there was a separate estate created in the wife, by reason of the source or mode by which she derived this money, as if it had been a legacy to her separate use. In this particular there is nothing to distinguish this case from an ordinary and unconditional inheritance of money by a wife, which is always subject, as other dioses in action, to be reduced into possession by the husband, and which W’ould thereby become vested in him.

It only then remains for us to inquire, whether there was a consummated purpose on the part of the husband himself to settle this fund upon his wife to her sole and separate use, after it had been received? That it was in his power to have done so we do not deny; but the inquiry is, did he intend to exercise that power, and has he effectually done so? From the facts, as disclosed by the record, we can discover nothing to warrant such a conclusion. The husband’s whole conduct was in nowise inconsistent with a fixed purpose to treat and use this money as his own. The power of attorney to be availing under the laws of Louisiana, should be the act of the wife, because under those laws, this money having descended to her, in her own right, would be regarded as hers; and although the right and succession to personal property depends on the law of the domicil, which in this instance was Maryland, yet it is not improbable that this power of attorney was executed with reference exclusively to the laws of Louisiana. If this be so, it would negative wholly the inference sought to be drawn from it, that the husband thereby intended to create a separate estate in his wife.

Although the law is so far modified by equity as to permit a married woman to hold and enjoy property to her separate use when it is given to her for that purpose, yet such a trust should be clearly expressed before the court will sustain it against the rights of the husband. And where the husband himself, during coverture, proposes to settle upon his wife a separate estate out of his own property, Clancey on Husband and Wife, page 260, says, “the act by which he divests himself of his property must be clear and unequivocal.”

It cannot be pretended that there was any power in the wife, independent of the husband, to appropriate this fund to her sole and separate enjoyment, and if the power of attorney executed by the wife to her husband has had any such effect, it must be by reason of the supposed adoption or sanction of it by the husband. In other words, we are to regard the power of attorney as the act of the husband, and from that act we are to gather an intention on his part to create a trust in favor of his wife. Conceding that the husband has, by adoption, made the power of attorney his act, we are next to consider the legal effect of the act upon the money in controversy.

The only language employed in this instrument, out of which a separate estate in the wife could be supposed to spring, are these words, “for me and in my name.” The most, therefore, by possibility, these words could import is, that the money was to be held for his wife. This language is not sufficient to create a separate estate in the wife. It has been adjudged in four several cases, namely, Johnes vs. Lockart, 3 Bro. C. C., 383; Kirk vs. Paulin, 7 Vin. Abr., 95; Wills vs. Sayers, 4 Madd., 409, and Roberts vs. Spicer, 5 Madd., 491, that the words, ‘ for her use and benefit,” employed in making a gift or transfer of property to a married woman, did not convey a separate estate; and if not, clearly the weaker terms used in this power of attorney could not have such an effect.

We cannot perceive that the mere circumstance that this fund was derived through the wife could vary the case, or alter the general rules in regard to the creation of separate estates in married women. Though this money descended through the wife, it became, nevertheless, as much the property of the husband, as soon as it was converted from a chose in action into money, as if it had always been his; and it required as strong language to divest himself of it in the one case as in the other.

From all the circumstances of this case we must conclude, that this money, when collected, was to take the usual course indicated by the law, and was to pass to and vest in the husband.

The cases collected in Bright on Husband and Wife, (1 Vol., ch. 5,) and relied on by the appellee’s counsel, do not conflict with the views we have expressed. The case of Nash vs. Nash, 2 Madd., 133, which most resembles the case now under review, is, nevertheless, in many respects materially different. The check, which was the chose in action in Nash vs. Nash, was not in fact paid in cash, but it was merged in or exchanged for a note to the wife, payable on demand, by which means the debt was not paid, and not therefore deprived of the incidents which belong to a chose in action. In other words, the debt continued still the wife’s chose in action, though in a different form. In the case at bar, the money was actually paid to the wife’s agents, (assuming that they were her agents,) and remained in their hands, as money, for five days. At the end of that time, as a means merely of transmitting the money to Maryland, it was converted into a draft, payable to the deceased husband. Thus the whole character of the claim became changed, unlike the case of Nash vs. Nash.

Throughout this opinion we have assumed, that this question was properly involved in the present proceeding and have so disposed of it.

We think the judgment rendered by the court below was erroneous, and therefore ought to be reversed. As the whole case appears to be before us upon this record, we do not see that the appellee could be in anywise benefitted by a procedendo and therefore will not order one.

Judgment reversed and procedendo refused.