15 Conn. 587 | Conn. | 1843
The appellants object to the allowance, by the commissioners, of the claim of Samuel Mather, on the ground, that it was barred by the statute of limitations, du* ring the life-time of the deceased.
The objection is founded upon the antenuptial agreement made between the late Dr. Thomas Miner and his then intended wife, Phebe Mather, and her trustee, Thomas Mather. In that agreement Dr. Miner', who, in contemplation of marriage, was about to receive a certain amount of property from the wife, covenanted, among other things, that he would pay to the trustee two thirds of 6595 dollars, 84 cents, within six months from the death of his wife, should he survive her. The marriage was consummated, and soon after, the wife died ; and by her last will and testament, she bequeathed to her husband the use and improvement of all her estate, during his life, subject to the payment of a legacy of 500 dollars to her nephew.
The argument of the appellants is, that Dr. Miners the husband, by his agreement, was bound to pay Thomas Mather, the trustee, the principal of all the property received by him at his marriage, (reserving the one third thereof,) within six months from the death of his wife; that the covenant on his part was broken, upon his failure to do this; and that the statute of limitations began to run upon the claim of the trustee from that time, and now has barred it. If there had been no will of Phebe Miner, or if no present interest had been bequeathed by it to Dr. Miner, the husband, so that he was not, by virtue of it, vested with a right to the whole estate, during his life, there would have been weight in this argument. But, by the provisions of the will, Dr. Miner, instead of being under his obligation to deliver up two thirds of his wife’s
There is no doubt, therefore, but the claimant, Samuel Mather, has a right to receive from the estate of Dr. Miner a sum of considerable amount. As a part of the amount claimed, the commissioners have disallowed the money which was received by Dr. Miner upon the James Mather note, being 1100 dollars.
This note was given during coverture, by James Mather to Phebe Miner, the wife, in consideration of an exchange of lands made between them, with the husband’s assent. It is quite unnecessary for us now to examine the state of the common law regarding the right of the husband to choses in action accruing to the wife during coverture ; and whether the husband may sue alone, or must or may join his wife as plaintiff, in an action to recover them ; because our own courts, by amniform course of decisions, founded, as they believed, upon the principles of the common law, have holden, that such a chose in action vests absolutely in the husband; and such is the settled law of this state. Fitch v. Ayer, 2 Conn. R. 143—5. Griswold v. Penniman, Id. 564. Cornwall v. Hoyt, 7 Conn. R. 426. Beach v. Norton, 8 Conn. R. 71. Whittlesey v. McMahon, 10 Conn. R. 137. Morgan v. The Thames Bank, 14 Conn. R. 99. 1 Swift's Dig. 98. Reeve’s Dom. Rel. 60. The note of James Mather, when it was executed, became the property of Dr. Miner.
But, it is claimed, notwithstanding, that as this note was found, upon the death of the wife, in her drawer, and thus in her possession, and was inventoried by Dr. Miner as a part of her estate, it must now be considered and treated as having become her property, by gift from her husband ; and thus Dr. Miner, the husband, became responsible for its amount to her residuary legatee, Samuel Mather. Aside from very
We are satisfied, therefore, that the commissioners properly rejected this part of the claim presented, and as properly allowed the residue : and we advise that the report be accepted and established.
It was suggested, on the argument, that because the credit- or, in this case, did not appeal, he could not, before the superior court, recover a greater sum than was allowed by the commissioners, even if he was legally entitled to the rejected claim of 1100 dollars. Although an opinion from us, upon this question, is not necessary now ; yet, as it is a question of practice, growing out of the recent statute giving jurisdiction
Report of commissioners established.