Wade v. Grimes , 8 Miss. 425 ( 1843 )

Mr. Justice ClAyton

delivered the opinion of the court.

The facts present the case'of a woman who»was married three times. By the will of her first husband, Kirk; she was entitled to a share of personal estate. Her second husband, Carter, does not appear to have ever concerned with it in' any way. The third husband, Wade, survived the wife, and after her death filed his petition in the probate court against Grimeg, the defendant, who was the administrator with the will annexed of Kirk, for her portion of Kirk’s estate. The claim was resisted by the defendant, who opposed the right, of Carter, the second husband, to that of Wade. ' '

We have first to enquire what was the nature of the estate,taken by the feme under the will of Kirk, the first husband. The will directs “that his estate, real and personal, shall remain in common stock until his oldest ■ child shall marry or come of age, then it-shall be the duty of the probate court to appoint three suitable persons to value the estate, and give that child an equal division, and so on until the youngest child shall become of age. ’ So long as his wife remains a widow, she is to carry on the business of the estate, and to educate his children; in the event of her marrying she is to be entitled to an equal division of his estate, to be called' for as one of the children.” The intention of the testator was to put his wife in all respects upon the same footing with his children, and to treat her as one of them in point of interest in his estate. It was to be held in common for their common good, and upon her marriage the wife was entitled to call for a division. She might have renounced the will in six months, but not having .doné so, she is'subject to its provisions. The will then passed an interest, which became vested on the death of .the testator. It was an estate then vested in interest, but the right to a division and of separate enjoyment was postponed to an after period. We cannot distinguish this will in principle from that of Pressler, in the case of Scott v. Jantes, 3 Howard, page 307, which was held “ to give a vested legacy to be divided in futuro.” This was a right, then, which subsisted in Mrs. Kirk at the time of her marriage with Carter; not one which accrued during her coverture with him.

We have thus determined'the nature of the wife’s interest under the will, and shown that it accrued before her second marriage. The next enquiry is as to the rights of the respective subsequent husbands. The general rule of law is, that unless the husband, reduce the wife’s choses in action to possession during the coverture, they survive to her, if she be the longest liver. Coke Lit. 351; Roper on Husband and Wife, 204-5; Clancy, 4. It has been sometimes doubted whether legacies and distributive shares of in-testates’ estates come properly under the head of choses in action; but nearly all the reported cases assign to them that character as much as debts, or other contracts. Roper, 204-5; Clancy, 109; Toller on Executors, 220; 1 Dane’s Ab. 342; Blount v. Bestland, 5 Ves. 516; Hackney v. Williams, 6 Yerger; Spann v. Stewart, 1 Hill, 332; Revel v. Revel, 2 Dev. & Batt. 272; Mayfield v. Clifton, 3 Stew. 375; 2 Hill, 650; 4 Hen. & Munf. 452. And where the right is a joint one between legatees or distributees, the property retains its character of a chose until division or partition. 2 Hill, 650; Spann v. Stewart, 1 Hill, 332; Gregory v. Marks, 1 Rand. 355; Hackney v. Williams, 6 Yerger; Elms v. Hughes, 3 Dess. 155; 1 Iredell, 61-288; Parks v. Cushman, 9 Vermont, 324. The only exception to this rule is, that if the division is by the will conferring the legacy postponed to a future day, the husband’s right shall not be prejudiced, if he claim the property as his own, and exercise all the ownership over it of which it is susceptible. Scott v. James, 3 How. 313.

A distinction is drawn in many cases between the rights of the husband to those choses of the wife to which she had title at the time of the marriage, and to those which accrued to her afterwards. In the former instance it is held, that the husband cannot sue for them without joining the wife, and if they be not reduced to possession during the intermarriage, the right goes to the wife, if she survive. In the latter instance it is held, that the husband may sue in his own name without joining her, and that the title vests absolutely in him without actual reduction to possession. Toller Ex. 219; Griswold v. Penniman, 2 Conn.; Banks v. Marksbury, 3 Littell; Armstrong v. Simonton, 2 Taylor, 266; Wilkinson v. Perrin, 7 Monroe, 216; Magruder & Nichols v. Stewart, 4 How. 204. In many of the cases this distinction is not adhered to or regarded, and in either case the right is held to survive to the wife. Carr v. Taylor, 10 Ves.; Hunter v. Hallett, 1 Edwards, 389; Revel v. Revel, 2 Dev. & Batt. 1 Iredell, 288; Wallace and wife v. Taliaferro, 2 Call; 1 Ran. 355; 3 Stewart, 172-375; Lodge v. Hamilton, 2 Serg. & Rawle. But we consider the distinction to be well founded, and it was acted upon by this court in the case cited from 4th Howard.

The husband’s assignment for valuable consideration of the wife’s present interest in her choses in action, divests her title, and is equivalent to reducing them to possession. Cassell v. Carroll, 11 Wheaton; Schuyler v. Hoyle, 5 Johns. Ch. 196; Lowry v. Houston, 3 How. 396. It may be different as to reversionary interest; but this point we are not called on to decide. See Homsby v. Lee, 2 Mad. Rep.; Purdew v. Jackson, 1 Russell; and Honner v. Morton, 3 Russell, 65.

These principles all have a -direct bearing upon the case before us. The property in dispute was a chose in action; the right accrued before the marriage with Carter; the interest was joint; there was no division or partition; no assignment or sale of it by him, nor any other act upon his part evincing an assertion of title. We are of opinion, therefore, that the rights of his wife stood after his deatli in the same situation as at the time of their marriage; and at her death that they passed to Wade, the third husband, as her survivor.

A recent case which searches into this subject with great astuteness, and criticises many of the decisions with much boldness and freedom, rests the doctrine upon a new ground. It regards the husband as not invested with the title of the wife to her choses in action, but as the recipient of her power and capacity to dispose of them. If he exercise the power by assignment, by release, by actually taking them into possession, he thereby acquires or transfers the title. If he dies without the exercise of the power, the wife acquires not a new title, but is restored to her old one, connected with the capacity to use it, which was suspended during the coverture. He is the depository of her power, not of her title; and if he do not exercise the power, by his death it is gone. Siter v. Jordon, 4 Rawle, 469. This doctrine does not vary the result of this case, but the reasoning is different, and seems to be recommended by its extreme simplicity and clearness.

It is said in the brief of the counsel for the appellee, that the law in this case has already been settled by this court: and the cases of Cable v. Bell and Martin, 1 Howard, and Lowry v. Houston, 3 How. are relied on in support of the position." A careful review and examination of these cases will show that the point presented in this record has not been decided by this court. This review we will proceed to make, with the single preliminary remark, that however general the expressions used in those cases may be, they are to be confined to the subject matter before the court, and to the. facts of the cause under consideration.

In the case of Cable v. Bell and Martin, 1 Howard, the husband survived; and it is held by all the authorities, without one exception, that where the husband survives, the right of, the wife survives to him. That single circumstance was decisive of the case in his favor, and it may rest upon that as an unquestionable principle.

The case of Lowry v. Houston, 3 How. was also one in which the husband was the survivor. The right of the wife, too, accrued after her marriage, and the husband sold the slaves during the coverture. Here, then, were three distinct grounds on which the decision was very properly in favor of the vendee of the husband, not one of which touches the point of controversy in this cause. The survivorship, the accrual of the right after the marriage, and the sale by the husband during the coverture, was each according to principles previously stated, sufficient to clothe him with the title.

The case of Scott v. James, 3 How. 307, very nearly resembled this, as it was a contest growing out of the will of the first husband, between those claiming under the second, and the third husband. The construction of that will has already been adverted to in this opinion. The case turned exclusively upon the question of fact, whether the second husband had reduced the property to possession. The court say that James, the second husband, ‘-'took possession of the property on his marriage, continued in possession until his death, and claimed it in his own right by virtue of the marriage. This was undoubtedly the highest act of ownership, and a sufficient possession to consummate his right. It was all that he could have done; because by the will the property was to be kept together, and not divided until the daughter became of age, or married.” The decision was in favor of those claiming under the second husband. But no one can doubt but that the decision would have been different, if the second husband had done none of those things which were in that case deemed the highest acts of ownership, and if the rights of those claiming under him had rested, as in this case, upon the fact of the intermarriage alone. ' The right to recover in that case was placed upon the ground, that the husband had reduced the property to possession, so far as it was susceptible of such reduction.

The only remaining case is that of Magruder and Nichols v. Stewart, 4 How. 204. The right to the negroes sued for accrued during the coverture; the wives of the two plaintiffs were living; they had a joint right to the slaves; and the suit was brought by the husbands alone. It may be further remarked, that it was a suit against a person claiming to hold the slaves adversely. The circuit court was asked to charge the jury, “that if the right of action accrued during the coverture, the suit was properly brought in the names of the husbands alone.” This charge was refused by the court, and the cause came up on that ground among others. This court, in accordance with the principles herein indicated, reversed the judgment upon this point.

These are the cases which have occurred in this court, none of which settle the principle involved in the present, according to the view we have taken of it. It may be observed, too, that neither Garter nor his representatives are parties- to this proceeding, and that our judgment cannot preclude his rights.

The opinion of the probate court of Yazoo, upon the bill of review, denying the right of Martin Wade to the property in question must be reversed, and the report of the commissioners allotting his portion to him, must be and the same is hereby affirmed.

Judgment reversed.