Ellsworth v. Hinds , 5 Wis. 613 ( 1856 )

By the Court,

Smith, J.

This case was brought to this court by certiorari, from the Circuit Court of Milwaukee county.

Almira Ellsworth, wife of Orlando Ellsworth, died on the 15th day of June, A. D. 1854, intestate, leaving about $650 in bonds and mortgages, which had been invested in her own name. Her husband, Orlando Ellsworth, applied for and obtained letters of administration on her estate.

Orlando tand Almira Ellsworth were married on the 2d day of November, 1841. At the time of their marriage Almira possessed some personal property, and a right of dower in some lands in New Tork, which belonged to the estate of a former husband. In 1852, the wife, with the consent of her husband, sold her dower interest above mentioned, and received the proceeds thereof in money. This money was loaned out with the consent of the husband and security taken by bond and mortgage on real estate in the name of the wife; which amount was outstanding, due, and to become due at the time of her decease.

The deceased left five children surviving, viz: Orlando Hinds, Nelson Hinds, Russell Hinds, and Lavanda M. Barrett, wife of Chester Barrett, by her first husband, and Eugene Ellsworth the issue, of-the last marriage.

On the rendition of the final account of Orlando Ellsworth, as administrator, after payment of the debts, &c., of the deceased, there remained the sum of $425.78 in money, and a note and mortgage in favor of the deceased for $300, all of which was claimed by Orlando Ellsworth, the husband of the deceased. The four children of the deceased, by the first husband, claimed four-fifths of this amount so remaining in the hands of the plaintiff in error, as administrator.

The cause came on for hearing upon the settlement of the final account of the plaintiff in error, as the administrator of the deceased, and after argument of counsel the Court of Probate passed the following order:

“ The accounts of Orlando Ellsworth, administrator of all and singular the goods, chattels, rights, credits and estate of Almira Ellsworth, late of Milwaukee county, deceased, having been finally settled and allowed, by which it appears that there remains in his hands, after the payment of the debts of the said deceased, and the necessary expenses of administration, the sum of four hundred and sixteen dollars and thirty-two cents ($416.32) in money, and also a mortgage and notes executed by Giles M. Packard and wife, in favor of said deceased, for the sum of three hundred dollars, dated on the 22d day of September, A. D. 1852. And it also appearing to this court that the said administrator was the husband of the said deceased, and as such husband is entitled to the exclusive enjoyment of the residue of the personal effects of the said deceased; it is ordered and decreed that the said Orlando Ellsworth, administrator as aforesaid, be allowed to retain in his hands, for his own sole use and benefit, the said residue of the said personal estate of the said intestate.”

Thereupon, the children of the deceased, by the first marriage, appealed to the Circuit Court, specifying the following as the reasons for such appeal:

1. Because the decree or'order of the judge of probate allows Orlando Ellsworth to retain for his sole use and benefit the choses in action of Almira Ellsworth, deceased, not reduced to his possession during coverture.

2. Because the children of Almira Ellsworth, deceased, as her next óf kin, are entitled in equal portions, to the property awarded by said order to Orlando Ellsworth, it being at the time of her decease, her sole and separate property, as if she were a single female.

3. Because Orlando Ellsworth, surviving husband of Almira Ellsworth, deceased, was not entitled in preference to the next of kin, to administer upon the personal estate of the deceased.

This appeal was brought to a hearing in the Circuit Court, and on the 25th of April, 1856, a decree was rendered, reversing the decree of the Court of .Probate, and ordering distribution of the proceeds of the estate in equal proportions among the five children of the deceased.

To reverse this decree this writ of certiorari is prosecuted.

It would seem to be the better opinion that the husband had the right at common law to administer upon the estate of his deceased wife (Williams on Executors, 331; Com. Dig. Adm. B. 6; Watts vs. Watts, 3 Ves. 247); and as administrator to retain and enjoy tbe remainder or residue of tbe personal estate after payment of tbe debts and expenses of administration, until tbe act of distribution; 29 Charles II. Subsequently to that act, tbe administrator was required to account for and distribute tbe residue of tbe estate. But in that act an exception was made of tbe case of a husband administering upon tbe estate of bis deceased wife. In srfcb case tbe common law right of tbe administrator to retain tbe residue was left unimpaired by the statute.

But however this may be, we think tbe plaintiff in error was entitled by bis marriage contract to the personal property of tbe wife. When her dower estate was sold and converted into money it became, as tbe law then stood, tbe property of the husband, and vested in him. Nor have we been able to discover by what means be has become divested of bis right thereto, unless it may be inferred from tbe fact that be loaned out tbe money and took tbe securities in tbe wife’s name, thereby indicating an intention on his part to give up to bis wife all tbe rights which be bad acquired by tbe marriage. But we do not think this fact- of itself sufficient to justify such a conclusion. If tbe property was bis by virtue of tbe marriage contract, and vested in him on its conversion into money, bis title is not at all impaired by bis acting as administrator. Tbe fact that be contends that be would have a right to claim this estate as administrator, even if bis title as husband should be adjudged invalid, does not in tbe least tend to invalidate tbe latter title. We do not think there is evidence to warrant us in concluding that be ever intended to relinquish any of the rights which accrued to him by tbe marriage, nor can we bold that be forfeited those rights by taking upon him tbe administration of tbe estate. Therefore we are of opinion that tbe judgment of the Circuit Court should be reversed, and tbe judgment and decree of tbe County Court should be affirmed.

Judgment accordingly.