Caldwell v. Renfrew

33 Vt. 213 | Vt. | 1860

Barrett, J.

In the case of Curtis v. Hapgood and trustee, in Windsor county, February Term, 1859, it was decided on full consideration, after two arguments, that the wife’s right would be protected at law against the creditors of the husband, in respect to money loaned and notes taken to herself, under a similar arrangement between herself and her husband to. that which appears to have existed in the present case.

In Richardson, Adm’r v. Estate of Merrill el al., 32 Vt. 27, upon a similar state -of facts, it was held that the wife would hold the notes taken for money loaned as against-the heirs of the husband, deceased. After these two decisions, it may be assumed that the wife has a valid title, which courts of law will regard and give effect to the money and the notes taken therefor, under an arrangement between herself and husband, that such money and notes are to be held by her as her separate and individual property.

In the two cases referred to, much of the money accrued to the wife, and the loans thereof were made from time to time, during coverture ; and in the latter of said cases, much of the business of loaning the money and taking the notes and securities was done by the husband for and in behalf .of the wife, such notes and securities being taken in many instances in the name of the' husband, for the convenience of making collections.

In the present case, therefore, the only open question is, whether the wife had the legal ability to make such a disposition of the notes in question and of the money embraced in them, as she undertook to make in this instance. In other words, did the husband acquire such a right to the notes as entitles him to hold them against the other heirs of the wife, for in this case the right to the possession of the notes themselves is the hinge point of the case.

It being assumed that the wife was the owner, in her own right, of the money and notes in question, in the eye of the law, it would seem to follow as a legitimate and logical result, that she was invested with all the incidental rights of such ownership, so far at least as it was not in contravention of any asserted rights of the husband. It is necessarily involved in such ownership in this case, as it is made up, that she had the power to loan, to collect and reloan, and to enjoy all the rights incident to and flowing from her exercise of such power. Could she not have given to any of her debtors the debt evidenced by any of the notes she held? Could she not have given any portion of the money to any one she saw fit, instead of re-loaning and taking notes for it ? It was early held in England that there were instances where the wife had the actual ownership of property, distinct from her husband, so that it was out of his reach ; as where on marriage, the husband endowed the wife, ad ostium ecclesice, with personal goods in lieu of dower in lands, the property became hers in such a manner that it was not in his power to claim it; and it being her own, she might devise it; and in later times it has become common learning in the English courts. In 2 Ves. 190, Ed. Hardwick recognizes the doctrine that a married woman may dispose of her personal estate by any act in her life time or by will. And Ld. Thurxow said in 1 Ves. 103, that it is impossible to say that a married woman is incompetent to act with her separate property as a feme sole.

Whatever may have been the idea formerly as to the necessity of administering the rights of the wife in her separate property through a court of equity, it must follow as a necessary conse^ quence of her legal title, recognized and protected in the courts of law, that courts of law recognize and give effect to those acts, by her voluntarily done, which affect that title.

In this case, we feel obliged, to regard the acts of Jane Renfrew, in making disposition of her notes, in just the light in which they were viewed by the parties to that disposition. In the immediate apprehension oí death she transferred those notes to her husband for the purpose, through him, of having their avails go after her decease to certain persons named. Subsequently while yet. lingering in the expectation of death, she varied her disposition of them by directing a portion of the avails to be retained by her husband. He held the notes under that disposition up to the time of her death, and continues to hold them for the purpose of carrying out her disposition of them. If she was legally competent to make that disposition, in any part, for the purpose specified, then, as matter of course, the legal title was vested in her husband, in order to the accomplishment of such purpose.

It cannot be doubted that she might make a donatio causa mortis to the persons named, through the intervention of a trustee, nor can there be any doubt that her husband might be such trustee. So far as the relatives named in the instrument of September 26, 1857, are concerned, we think it was her clear intention to make a donatio causa mortis, and that the transaction embodies all the elements that the law requires in order to constitute such a gift. This being so, it would seem that the legal title became vested in her husband, so that he might hold the subject matter of the gift as against every body, and especially as against those whose right, if any they had, must be subsidiary to that of the donors of the gift. In this view alone, it seems to be needless to discuss whether the husband could be a donee causa mortis of the wife; and yet on principle it is quite difficult to assign a cogent or plausible reason why he might not be

The discussion has proceeded thus far on the assumption that the notes against third persons may be the subject of such a disposition as was undertaken to be made in this case. It is well settled in this State that the note of the donor to the donee cannot become such a gift, it being a mere promise to.pay. In Holley v. Adams, 16 Vt. 206, this subject is thoroughly examined and discussed by Judge Hebar» ; and in the opinion delivered by him in that, case, he incidentally discusses the other question, viz : Whether the note of a third person can be the subject of a gift causa mortis ? He expresses a clear opinion that it may be. In a similar case, 21 Vt. 235, Judge Poland, in a most elaborate discussion of the subject of gifts causa mortis, regards that to be the true doctrine, both upon principle and authority. Contant v. Schuyler et al., 3 Paige, Ch. 316, is a direct authority, with which we are entirely satisfied. If we were to treat this question as res integra in this State, we should not hesitate thus to decide the law on this subject.

The view which we thus take of the case renders it useless to examine or discuss the questions made in the argument, as to what is necessary in order for a husband to reduce the wife’s dioses in action to possession, for we permit the case to stand upon the assumption of the counsel for the plaintiff, viz: that the husband had not reduced them to possession in such a mode and sense as to entitle him to hold the notes on that ground. We put his right to hold them entirely on the ground of the wife’s act in disposing of them, and that in virtue thereof, he is invested with the title, in subserviency to the purposes for which she made the disposition. This view also renders it needless to consider the questions made as to the admissibility of the evidence that was objected to.

On the whole, we are unanimous in affirming the judgment of the county court.