Mitchell v. Mitchell, 35 Miss. 108

Mitchell v. Mitchell

35 Miss. 108 | Miss. | 1858

HANDY, J.,

delivered the opinion of the court.

The declaration in this case alleges, that in the year 1851, at the time of the plaintiff’s marriage with A. J. D. Mitchell, the defendant’s testator, the said testator had and received, to and for the sole and separate use of the plaintiff, the sum of two thousand dollars, which sum was given and belonged to the plaintM^asid rvas delivered to the said testator, and was retained by hfm^ntity^^,, his death, when it went into the hands of the defendant/lhis exe'-*' -A,? *114cutor; and demands judgment for the amount against the defendant.

To this, the defendant demurred generally, and the demmurer was sustained, and judgment rendered for the defendant, upon which the plaintiff took this writ of error.

The first ground taken in support of .the demurrer is, that the money claimed in the declaration became the property of the husband upon its delivery to him, and was not embraced within the provisions of our statutes, securing property to the sole and separate use of the feme covert; and it is insisted, that these statutes do not confer upon her the right to take and hold money to her separate use.

The first section of the Act of 1839 (Hutch. Dig. 496), provides, that “ any married woman may become seised or possessed of any property, real or personal, by direct bequest, demise, gift, purchase, or distribution, in her own name, and as of her own property: provided, the same does not come from her husband, after coverture.” The terms here employed, are very broad, comprehending any species of property, real or personal, capable of bequest, demise (devise), gift, purchase or distribution; and there can be no doubt but that money is embraced in the legal term property.

But the question is raised, whether money given to the wife, as her separate property, is within the spirit and policy of the statute; and it is insisted that it is not, because the statute, in its subsequent sections, makes provisions regulating the rights and interests of both husband and wife in slaves, secured to her as her sole and separate estate; thereby showing the kind of personal property intended to be secured to the wife, and excluding money, which is not enumerated, and is left without any regulation in relation to it.

But this position is manifestly not tenable. The right conferred by the first section, is general and unrestricted in its terms, and there is nothing in the subsequent sections which necessarily limits or abridges it. The object of it, doubtless, was to secure to married' women any property which might be given to, or acquired by them, in their own right, and to place it beyond the power of disposition of the husband, and beyond liability for his debts; and this reason applies as well to other species of personal property as *115to slaves. It applies as fully to the horses, mules, cattle, sheep, and other personal property, necessary for a plantation, as to the slaves which cultivate the crops upon it. But if the construction contended for be correct, she has no power to take such property to her separate use.

It is true that slaves are the subject of special provision in the subsequent sections of the statute, the reason of which most probably is, that slaves constitute a large portion of the personal property which would most generally be acquired by femes covert; and the peculiar nature of such property, and the care and management of it which the husband would necessarily have, were sufficient to require special provisions in relation to the respective interests of the wife and of the husband in them. But, whatever may have been the reason for these provisions in relation to slaves, the provisions are merely regulations with regard to one species of personal property, which a feme covert is empowered to take to her separate use, and cannot be held to abridge her power to take to her separate use other personal property, as conferred by the first section of the statute.

Again : it is said that, at all events, the money was held by the husband, as trustee for the wife, he having the legal, and she the equitable interest in it; and, therefore, that it could not be recovered from his executor, into whose hands it passed, or who became chargeable with it, in an action at law.

Conceding, for argument sake, that the money was in the hands of the husband, as trustee for his wife, upon his death the trust was determined, and all necessity for its continuance ceased. And it is clear that the trust continued only so long as was necessary to effect the purpose of the trust. Coulter et al. v. Robertson, 24 Miss. 341. And after the purpose of the trust had ceased to exist, or had been accomplished, it was competent for the cestui que trust to sue for, and recover the property at law. Ib. Liptrot v. Holmes, 1 Kelly (Ga.) 388; Jones v. Cole, 2 Bailey, 330. If it was a trust, it certainly ceased at the husband’s death.

But it was not a case of trust such as is cognizable only in a court of equity. The money was the absolute property of the wife, which came to the hands of the husband. During the marriage, it was in his hands as her agent; and the only reason why she could *116not have recovered it by action at law against him during bis life, was that she could not sue him, even to recover a purely legal right, at law. Her right of action during the marriage was suspended ; but upon his death, it existed in full force against his executor, into whose hands thé money passed, and who became liable to her action for it if it was applied by the testator to his own use.

We are, therefore, of opinion that the demurrer was improperly sustained; and the judgment must be reversed, and the cause remanded for further proceedings.

Note. — The wife’s dioses in action go to the husband under the rules of the common law, and are not secured to the wife by the Acts of 1839 or 1846. Lowery v. Craig, 30 Miss. R. 19.