Marsh v. Fuller

| Superior Court of New Hampshire | Dec 15, 1846

Parker, C. J.

We are of opinion that the delivery of the key of the chest, with words of gifts of the chest and its contents, put the wife in possession, constructively, and was a sufficient delivery to perfect the gift. 2 Stra. 955, Smith v. Smith; 5 Ves. 823, Guest v. Homfray; 2 Aikens 79, Chappel v. Marin; 1 Nott & McCord 592; Dig. Con. Court, S. C., 197, pl. 4.

When the defendant took possession of the property, as part of the estate, and refused to deliver it to the plaintiffs upon their demand, he was guilty of a conversion, if the gift conferred a good title. The title of the plaintiffs was good against the heirs and distributees of Dorothy Sleeper, the donor, and the defendant had no right as administrator, unless the property was required for the payment of the debts. His right as administrator depends upon the right of the creditors. They had no rights if there was sufficient property, without the property embraced in the gift, to pay the debts, and that appears to have been the case here — the gift being, as the jury have found, of the chest and money only.

If the evidence of the plaintiffs had shown that there was a gift of all that was claimed in the declaration, this action of trover could not have been maintained, for in that case the gift would have been, in part at least, to the prejudice of the creditors, as appeal’s from the settlement of the administration account ; and there would have been no criterion by which a separation could have been made between the different parts of the donation. The gift being entire of the whole that was in the chest, it would have been invalid if the property embraced in it had been necessary for the payment of the creditors. All that the donee would have been entitled to in that ease would have been what remained upon the settlement of the estate, upon the ground that she was better entitled to that than the heirs; and the consequence must have been that the administrator would have had a right to take possession of the property, for the purposes of the administration, and might have maintained an action to recover it, if the donee had taken and held the possession. Abbott v. Tenney, ante, 109.

Fortunately for the plaintiffs the jury have sustained their claim only to the extent of the chest and money. The gift, therefore, appears to have been beyond exception. There was estate enough to pay the creditors and all expenses, beside what the intestate gave away. The administrator was not warranted in interfering with the property, the title to which had passed as against creditors as well as against heirs.

The charge of the court was erroneous in not recognizing this distinction, upon which depends the right of the donee, or of the administrator, to the possession of the property. But the verdict of the jury, by showing, in connection with the evidence respecting the settlement of the estate, that the gift was not to the prejudice of the creditors, and that the donee was therefore entitled to the possession, has rendered that error immaterial.

It is not sufficient that the administrator did not know -whether the estate was solvent or not, nor does he seem to have put the case upon that ground when the demand was made upon him. By his absolute refusal to comply with the demand he took that risk. "Whether a qualified refusal upon that ground might have protected him we do not consider.

Perhaps equity, upon a proper case made, might restrain the donee from a conversion of the gift, until it was ascertained whether the claims of the creditors required its appropriation as part of the estate.

Judgment on the verdict.