Shirley v. Walker , 31 Me. 541 ( 1850 )

Shepley, C. J.

The case is presented for decision on so much of an agreed statement, as may be legal testimony.

The opinions of public officers of the United States respecting the construction of acts of Congress must be excluded. All testimony respecting the property of the defendant, and that of the father, and the amount of property conveyed or given by the father to his children, and respecting the services performed by the defendant for his father and mother, must also be excluded as irrelative.

It appears, that Abigail Walker, the widow of Nathaniel Walker, was entitled to a pension under the act of Congress, approved on July 7, 1838, c. 189. That she died on Sept. 7, 1843. That on Sept. 17, 1844, the defendant, as her administrator, received from the agent of the United States, the sum of two hundred dollars due to her for arrearage of her pension. William W. Walker, and the defendant, and the wife of the plaintiff, were then her only children. The plaintiffs claim to recover one third of the money thus received, on the ground, that upon the decease of the mother it became the property of her children. This claim is resisted on the ground: — First, that it was the property of the deceased as assets in the hands of her administrator to be by him administered.

This point appears to be conclusively determined against the defendant by the act of Congress, approved on June 19, 1840. The second section provides “ in case any pensioner, who is a widow, shall die leaving children, the amount of pension due at the time of her death shall be paid to the executor or administrator, for the benefit of her children, as directed in the foregoing section. The first section provides, that the amount due to a male pensioner at the time of his death shall be paid to his executor or administrator, “ for the sole and exclusive benefit of the children, to be by him distributed among them in equal shares, and the same shall not be considered as part of the assets of said estate, nor liable to be applied to the payment of the debts of said intestate in any case Avhatever.”

The effect of these provisions is to give to each child a title to an equal share of the money so received as a distributive share of his mother’s estate, free from all claim upon it by the creditors or legal representatives of the mother. The administrator receives and holds it for their benefit.

2. The second objection is, that the action cannot be maintained in the names of the husband and Avife.

Legacies bequeathed and distributive shares accruing to femes covert, become the property of their husbands. Shuttlesworth v. Noyes, 8 Mass. 229; Commonwealth v. Manly, 12 Pick. 173; Fitch v. Ayer, 2 Conn. 143; Whitaker v. Whitaker, 6 Johns. 112; Chase v. Palmer, 25 Maine, 341.

The Act to secure to married Avomen their rights in property, approved on March 22, 1844, did not affect the rights of the parties in this case. Those rights Avere determined on the death of the mother, on September 7, 1843, before that Act Avas in force.

The husband may sue alone to recover such a legacy or distributive share, or on a contract made with or without seal, to the wife, during coverture. Ankerstein v. Clark, 4 T. R. 616; Templeton v. Cram, 5 Greenl. 417; Savage v. King, 17 Maine, 301; Goddard v. Johnson, 14 Pick. 352.

Because he is the owner of the property and may recover it by a suit in his OAvn name, it does not follow, that he must sue alone, and that he cannot unite with his wife. There are many cases, in which the husband may maintain an action in his own name, or in the names of himself and of his wife.

The general rule in such cases is, that the wife may be united, when she is the meritorious cause of action. It is said in argument, that she is not the meritorious cause, when she becomes entitled to a sum of money, by operation of law or by bequest, without the performance by herself of any act. She is hoAvever regarded as the meritorious cause, when the right of her husband to maintain the action accrues to him only because he is her husband.

Husband and wife may therefore join to recover a legacy, bequeathed to her during coverture. Rose v. Bowler, 1 H. Blac. 108.

And to recover for arrearages of rent due on a lease at will of her lands, made during coverture. Aleberry v. Walby, 1 Stra. 229.

And to recover for the treble value of tithes accruing to the wife during coverture, and not set out as required by statute. Beadles v. Sherman, Cro. Eliz. 608, 613.

In Buckley v. Collier, 1 Salk. 114, it was decided, that husband and wife could not maintain an action to recover for the labor of the wife, unless it was founded on an express promise made to her.

And in Brashford v. Buckingham, Cro. Jac. 77, that they might maintain an action on a promise made to the wife for services performed to cure a wound.

They may maintain an action to recover for the rents and profits of the lands of the wife, accruing during coverture. Com. Dig., Bar. and Feme, X; Lewis v. Martin, 1 Day, 263; Clapp v. Stoughton, 10 Pick. 463.

In such cases the cause of action does not at common law survive to the wife, unless she be joined in an action with her husband by his consent.

Then, as stated in Clapp v. Stoughton, “ the recovery of judgment in such a case operates as a contingent gift from the husband to the wife, to take effect if she should survive.” Oglander v. Barton, 1 Vern. 396. Although it was decided in the case of Clapp v. Stoughton, that the action could not be maintained, it was not because husband and wife could not have joined to recover the rents and profits, but because no such action having been commenced and prosecuted, the wife took nothing by survivorship.

There can be no difference in principle between the right to maintain an action in the name of husband and wife, to recover for rent in arrear, and for rents and profits accruing on the lands of the wife, and for a legacy bequeathed to her during coverture, and the right to maintain an action in their names for a distributive share becoming due to her during coverture, by the provisions of a statute.

This action may therefore be maintained by the husband and wife, to recover the share of pension money awarded to her by the Act of Congress.

3. It is contended, that the defendant has accounted as administrator in the Probate Courts for the money received by him, and that he is thereby protected, while those proceedings remain in force.

The administrator cannot deprive a person of his right to property, by representing that property to be the assets of his intestate, and by accounting for it as such in the Probate Court. Nor can any decree of the Probate Court upon it, as the property-of the intestate, deprive the owner of his right to it, or prevent him from proving it to have been his property, and not subject to the action of the Probate Court.

Defendant defaulted.