Mills v. Richards

Smith, C. J.,

delivered the opinion of the court.

This was a suit brought in the Circuit Court of Madison by Ladson A. Mills, as the administrator of Caroline Mills, deceased, against James Richards, executor of Joseph Collins, deceased, to recover certain moneys, alleged to have been received for the use of said Caroline Mills, by the defendant’s testator. The defendant, in his answer, denied the allegations of the complainant; averred that the cause of action did not accrue within three years and nine months next before the commencement of the suit; that the cause of action did not accrue within four years next before the grant of letters testamentary to the defendant, and that the claim was not presented to the executor within two years after notice of the grant of administration. To the three last defences, the plaintiff demurred, and the demurrer was replied to and sustained as a demurrer to the complaint. Whereupon, under leave of the court, the plaintiff amended his complaint by inserting an additional count, charging the defendant for other moneys, alleged to have been received by his testator, for the use of plaintiff’s intestate. The answer denied the allegations of the amended complaint, and defendant, on the trial, relied on the Statute of Limitations. A verdict and judgment were rendered for the defendant. Whereupon the plaintiff prosecuted this writ of error.

The only question necessary to be examined, involves the title of the plaintiff to recover, in his character of administrator of the intestate.

The plaintiff in error and Mrs. Caroline Mills, in 1889, were living together as husband and wife, having intermarried in 1836'. At the former date they agreed to separate and live apart. In execution of that agreement, mutual deeds were made by Mills and wife. Mrs. Mills, on her part, released all right to dower, and all claim, right, or title whatever to any property, real or personal, which Mills then owned, or of which he might thereafter become the owner, in consideration that Mills had “relinquished, quit-claimed, and forever given up all right, title, or interest whatever in and to all the estate, real and personal, which he acquired by virtue of his intermarriage with” her, and in consideration also that Mills had forever relinquished and given up all right to the services, or control over her person, acquired by virtue of the marriage, and all rights and authority, as parent or guardian, over the offspring of the marriage. At the same time Mrs. Mills, jointly with her father, Joseph Collins, executed an instrument conditioned to secure, and indemnify said Mills against any liability incurred by her since the 1st of January, 1889, and against all debts or liabilities which she might thereafter contract; and also against any claim she might thereafter set up to his estate.

Mills, at the same time, in consideration of the bond of indemnity, and the separate instrument executed by Mrs. Mills, released to her all right and title which he held to the property of all hinds owned by her at the time of their intermarriage. He also, by the same instrument, relinquished his paternal rights, in reference to their only child, Wm. J. Mills. The deed specifies the several articles of property, his title to which, was thereby intended to be released. Amongst them was a note of hand, due on the 1st of January, 1840, the contents of which are the subject-matter of this controversy. The note was indorsed, and delivered by Mills to said Collins, by whom it was collected within a short time after it became due.

Mrs. Mills died, after the separation, in 1839, and Collins was appointed guardian of her infant son. Collins died in 1847, and his executors qualified in March of the same year. The money collected on the note was never paid or accounted for by Collins or his executors. Young Mills died in 1853; and in 1856, administration on his wife’s estate was granted to Mills, who, as her administrator, claims the money, with interest from the time it was received by Collins.

As to Mills’s title to recover in this suit, very little may be said. A man cannot by any conveyance at common law limit an estate to bis wife. Hence, if it were conceded that the transaction would, in equity, be upheld as a settlement for the separate maintenance of the wife in view of the separation which immediately ensued, the deed of release at law was worthless, inoperative, and void. Mrs. Mills acquired nothing in virtue of the deed, and Mills parted with no title. When Collins collected the money, and failed to account for it, if a right of action accrued to any one, it was not to Mrs. Mills’s representative, but to Mills himself. He was, therefore, clearly not entitled to recover in his representative character; and it is scarcely necessary to add that the claim was barred, if asserted by him in his individual capacity.

The deeds of Mills and Mrs. Mills were made directly to each other. No third party was expressly designated as the trustee; and it is manifest, from the tenor of the instruments, that none was contemplated by the parties. Assuming that the motive of the transaction, or, in other words, that the consideration upon which the instruments were founded, was one which is favored by the policy of the law, Mills himself might be held as the trustee for his wife, and in a court of chancery compelled to observe the terms of the settlement. But, according to the manifest construction of the whole affair, there is no pretence for the assumption, that Collins should be regarded as the trustee for Mrs. Mills.

Judgment affirmed.