5 Whart. 138 | Pa. | 1840
The opinion of the Court was delivered by
Much of the confusion to be found in the books on the subject of a husband’s power over his wife’s choses in action, has arisen from viewing reduction into possession as identical with conversion to his use, and not as evidence of it. That it is evidence of it, and exceedingly powerful, must be admitted; yet it is no more. Were it very conversion, it could not be qualified; but it is well settled that the effect of it depends on the intent with which it is accompanied: and that it operates a conversion, or not, as it happens or not, to be an exercise of the wife’s original dominion, of which the husband is the instrument, for the purpose of taking the property to himself. I have expressed my opinion on this subject in Siter’s Case (4 Ravole, 475,) and I will not repeat it. It must be admitted, however, that reduction to possession is in all cases prima Jacie evidence of conversion, because it is accompanied in a vast majority of cases, with that intent; but that presumption of intent, like every other which is founded on experience of the current of . human transactions, may be repelled by disproof of' the fact in the particular instance: consequently the question here depends on the-rebutting evidence of intention. In Wall v. Tomlinson, (16 Ves. 413,) a transfer,, to a husband, of his wife’s-East India stock on an unwritten agreement that he should hold it in trust for her separate-use, was deemed insufficient to give him such possession of it as would entitle his representative, because as it was significantly said, it had been made diverso intuitu. In that case, a verbal agreement was made before the transfer, and the evidence of it was clear;, here the verbal evidence of trust consists of subsequent declarations; which, did the case depend on them, would be of little avail, for the-reason that a man often promises, for the sake of domestic repose,, what he has no intention to perform. But these declarations that the bank shares were- still the wife’s, are corroborated by the refunding bond given to the executor, and produced to him by the husband, as testified by the niece, in proof of his assertion. The condition of it is restitution by the wife and not by the husband — .an act that could not be performed by her if the shares belonged to him. Restitution by any one, would questionless answer the purposes of the executor; but the designation of the wife- as the person to make it, is a designation of he? as the person in whom, the beneficial owner
The next exception stánds on the same principle. As evidence of a contract, the husband’s certificate of loan by his wife, would be destitute of force; but as evidence of his determination not to assert a title to the money actually reduced to his possession by the transaction — it assumes a character of decisive effect. Cannot a husband, so far as his own interest is concerned, use his wife’s money, for a limited purpose, without impairing her right to it; or does the law impregnate it with his title by the touch, and cast the ownership of it on him against his will? Piad the husband put the memorandum into the shape of a certificate of loan by the executor in whose hands the money stood, the transaction would not have borne a question; but in an inquiry after actual intention, we are to look at the substance of it without giving way to accidental circumstances of form produced by the ignorance of the parties. The object intended, was the use of the wife’s money in consistence with her ownership of it; and as there are no technical words of stubborn import in the paper, it is our business to interpret it so as to produce the results which the parties intended; and it is enough •to preclude the husband’s ownership, that he intended to receive the money from the executor as his wife’s trustee; of which the paper furnishes abundant evidence. Being void as a contract however, it can give her no claim to the produce of the money as interest.
The remaining exception is better founded. The steam engine put up by the husband to drive his carding and spinning mill, was clearly within the protection of that principle which obviates the conversion into realty, of fixtures for carrying on a trade; and though it was not such as might be removed by a tenant for years after the expiration of the term, as was asserted on good authority in White v. Arndt, it certainly might, in analogy to the doctrine of emblements, be removed, as against the remainderman, by the representative of a tenant for life or in tail after the expiration of the particular estate; as was held in the two leading cases of Lawton v. Lawton, and Dudley v. Warde. Why then should not a husband, or his representative, remove such a fixture as against the wife, after the termination of his seisin in her right, when there was the same uncertainty of its duration, and the same encouragement given to trade by the erection ? I know of no case in point, but the principle of those cited, is applicable to the question in all its force.' The auditor’s report therefore is to be corrected by charging the accountant with the price of the engine and bricks sold by him; and the decree is affirmed for the residue.
Decree accordingly.
