85 Mass. 321 | Mass. | 1862
In a certain sense, a chose in action which becomes the property of the wife during coverture may be said to be the absolute property of the husband. He has a right to demand and receive the money due upon it, to commence ar action upon it in his own name without joining the wife, and if it be negotiable paper, to put it in circulation by his own sole indorsement. In a word, he has the right to do any act to reduce it into his own possession. So long as he and his wife are both living, the entire jus disponendi is in him. It was in this sense that it was said in Stevens v. Beals, 10 Cush. 291, that a promissory note given to the wife during coverture became the property of the husband. The only question in that case was as to the validity of the title of the plaintiff as indorsee, and it was held that the indorsement of the wife made with the assent and by the authority of the husband was good and sufficient to pass the note, and was equivalent to an indorsement by the husband alone. But the case at bar presents a very different question. The note declared on was payable to the wife. It was given to her during coverture, and remained in her possession and control until her death. No act was done by the husband during her life to reduce it to possession. He did not “ elect to take it in his marital right,” or “ disagree to the interest of the wife in it.” On the contrary, the evidence offered at the trial tends to show that his intention was that the note should remain her property, and that she should have the benefit of it. At her death, therefore, it still remained her property. It had not become his by any act which amounted to an election to take it to himself, or to an expression of dissent on his part to the retention by the wife of her interest in it. If she had survived him, the note would not have gone to his representatives, but would have continued in her. In like manner, on her death, the property vested in her legal representative. His right to
