Gillan's Executors v. Dixon ( 1870 )

The opinion of the court was delivered, May 19th 1870, by

Agnew, J.

When Elizabeth Gillan died, her personal estate vested in her father and mother jointly and absolutely under the 3d section of the Act of 8th April 1833 relating to intestates. This interest of the father and mother -was a chose in action, enforceable only through administration upon the estate of Elizabeth. That their interest is joint in its nature has been held and is evident from the intent of the act: Frankenfield v. Gruver, 7 Barr 448; Hamm v. Meisenhelter, 9 Watts 349. Until distribution of the estate of Elizabeth and payment of the sum coming to the father and mother, their interest necessarily remained joint. There can be no question of reduction to possession by William Gillan, the father, in this case, for the estate of Elizabeth remained without administration, and the notes evidencing the debts due to her estate remained unpaid at William Gillan’s death. It is clear therefore that the title to receive the share thus devolving on the father and mother by the intestacy of Elizabeth survived to Mrs. Sarah Gillan on the death of William Gillan, her husband. This resulted from their relation as husband and wife. Owing to their legal unity they did not stand as ordinary joint tenants to each other, but were seised or possessed as the case might be of the estate or interest in the property by entireties and not per my et per tout. This is well settled in this state both as to real and personal estate: Johnson v. Hart, 6 W. & S. 319; Robb v. Beaver, 8 Id. 107; Fairchild v. Chastelleux, 1 Barr 176; Stuckey v. Keefe, 2 Casey 397. Nor does the Act of 1848 relative to the property of married women change this principle of the common law: Diver v. Diver, 6 P. F. Smith 106. That act was intended to protect the property of the wife from the dominion or control of the husband, but not to change the nature of her estate, or to destroy the legal unity of person which characterizes their relation to each other. We perceive no error, therefore, in the doctrine held by the court, and the

Judgment is affirmed.