Harper v. Archer

Mr. Justice Clayton

delivered the opinion of the court.

This case was formerly before the court, and is reported in 4 S. & M. 99. It was then decided that S. E. Archer was entitled to the estate of his half-sister, Eliza F. Barnes.

The case is now brought up, for the opinion of this court, as to the disposition to' be made of the remaining portion of the personal estate of Edward F. Barnes, deceased. The widow of said Barnes, and mother of Eliza F. Barnes, married S. C. Archer, the father of S. Edward Archer. After the marriage Archer lived with his wife upon the plantation of Barnes, and managed for a time the undivided estate of Barnes, but died before any division was made. The widow afterwards married Harper. The question is, whether, under these circumstances, Archer, the second husband, was entitled to that portion of the estate of Barnes, which, if a division had been made, would have belonged to his wife. It is very clear that he was not. Until division the right of the wife was a mere chose in action. He did not take any steps to reduce it to possession. The right accrued to her before their intermarriage. She survived, and of consequence her right survived to her. Wade v. Grimes, 7 How. 433; Henderson v. Guyot, 6 S. & M. 211.

The order of the probate court, directing division of the personal property, in the petition mentioned, to be made between the administrators of S. 0. Archer, deceased, and Stephen Edward Archer, by which Mrs. Harper was excluded from all share in the estate of her first husband, is reversed, and in lieu thereof, it is directed that a division of said personal estate be made, and one half thereof allotted to said S. E. Archer, and the other half to Harper, as the administrator of his deceased wife, and in her right.

Decree reversed.