138 Mass. 58 | Mass. | 1884
The will of Pliny Dwight, of which Calvin Bridgman was executor, was proved in 1852, and the legislation which has sincé materially changed the rights of the husband, as they existed at common law, in the property of the wife, does not affect the questions which relate to this legacy, and the reduction of it to possession. The note in question was executed in renewal of an earlier note, is in form a promise by the husband to the wife to pay the sum named therein, with interest, and in terms is “ given for Pliny Dwight’s legacy.” Any lawful exercise of ownership by the husband over his wife’s chose in action, by which he appropriates it to his sole use, is a reduction of it to possession such as bars her right thereto. Howard v. Bryant, 9 Gray, 239. Alexander v. Crittenden, 4 Allen, 342. Commonwealth v. Manley, 12 Pick. 173.
The husband being himself the executor of the will under which the wife was entitled to the legacy, the most simple and efficient method of reducing it to possession was by taking it and mingling it with his other property. This he did, and retained it in his own possession with the consent of the wife. He did not invest it in any separate and distinct security for her benefit, and it was neither agreed nor understood that it should be so invested.
Even if the notes were given “as a convenient method of showing the value of her share of the residuary bequest,” they were not mere memoranda made by an executor intended only to indicate what he held as such, but promises to the wife to pay her the amount of the legacy he had received, and to which, as her husband, he was entitled in the exercise of his marital rights. Had an action been seasonably brought against the sureties on the official bond of Calvin Bridgman as executor, on behalf of the wife, for non-payment of this legacy, it could hardly be seriously contended that it could have been maintained, or that' the act done by the husband could have been treated as anything less than a payment by him such as would exonerate the sureties.
We cannot distinguish the case at bar from that of Turner v. Nye, 7 Allen, 176. There, as here, the case arose prior to the recent legislation as to the property of married women; and it was held that, where a husband, by consent of his wife, received money, the avails of her real estate, executed a note to her for the amount thereof, with a memorandum thereon showing the source from which the money came and that it was used to build his dwelling-house, delivered the note to her with a declaration that it belonged to her, and afterwards paid her money from time to time as interest, his estate after his death was not liable in equity for the payment of the note.
Bill dismissed.