Ellis v. Baldwin , 1 Watts & Serg. 253 ( 1841 )

The opinion of the Court was delivered by

Kennedy, J.

That Christopher B. Baldwin had a right to make the money received and retained by him, after paying Mrs Piper her proportion of it, his own, is admitted, and at any rate could not well be contested. But it is argued on behalf of the plaintiffs, that he must be regarded as having received the money in the character of a trustee, or as administrator of the estate of George Whitehill, and not by virtue of any marital right vested in him at the time. And therefore his receipt of the money cannot be considered such a reduction of it into his possession as would deprive his wife of her right to it in case she survived him. That the money cannot be looked upon as having been received by him otherwise; because he had no power or right to demand and receive it in any other right than that of administrator. If his wife had been sole at the time, she could not have demanded or received it until after it had come first into his hands as administrator. Then, but not before, she could have asserted her right to it, and compelled the payment of it by him, upon giving the requisite security to refund whatever of it might thereafter be wanting to pay debts of the testator. But his being invested with the right of his wife as her husband, as well as that of administrator, made no difference; for it is a rule, that if two distinct rights or capacities exist in the same person, they shall be considered the same as if they existed in two different persons; and if he performs an act, which it is only competent for him to do, acting in one of those two capacities, without signifying or declaring in which it is that he does the act, it shall be referred to that which will make it lawful, and render it effectual. This reasoning, so far as regards the mere receipt of the money by Christopher B. Baldwin, may be all correct enough. And had he retained it in his possession, without using it, until his death ; or had he put it out on interest expressly for the use of his wife, I would not say but her right to receive the money in such case would have survived. Baker v. Hall, (12 Vez. 497.); but see also, Wildman v. Wildman, (9 Vez. 174), where his Honour, the Master of the Rolls, took a distinction between a transfer of stock and the payment of money, saying, “ That the interest of stock was, properly, nothing but a right to receive a perpetual annuity, subject to redemption; a mere right, therefore, and the circumstance that the government was the debtor, made no difference; a mere demand of dividends as they became due, having no resemblance to a chattel moveable or coined money, capable of possession and manual apprehension.” But the money was not retained by the husband in the present case, nor put out by him to interest for the use of his wife; nor anything of the sort done by him, from, which it is possible to infer that he did not intend to bar her thereafter from asserting her right to it by survivorship. On the contrary, he appropriated the whole of the money to his own use; and, in truth, used and treated it as his own in every respect. Thus he clearly reduced it into his possession, and made it his own absolutely -to all intents and purposes. It was impossible for him to have done more than he did to effect this end. The wife, therefore, after her husband had so converted the money to his own purposes, could have no possible claim, in future, to it founded upon a right by survivorship.

Judgment affirmed.