47 N.J.L. 1 | N.J. | 1885
The opinion of the court was delivered by
This is a suit by a widow against the executors of her late husband. From the argument as presented in the brief of the counsel of the defendants,
First, then, with regard to the promise averred to have been made by the deceased in his lifetime. The count shows that during the marriage certain moneys were given by a relative to the plaintiff and that she permitted her husband to receive and to retain such moneys on his promise to invest them for her and to pay them to her when requested.
It is entirely clear that an action for the breach of such an agreement as this would not have lain in a court of law by the wife against her husband. In this respect the common law rule has not been relaxed, for, by the last clause of section 14 (Hev., p. 639,) of the act relating to the property of married women, it is declared that nothing therein contained ^ “ shall enable husband or wife to contract with or to sue each other except as heretofore.” By this enactment the matrimonial status was not in anywise modified so far forth as it is •of present concern.
To this extent no controversy has been urged, but the counsel for the plaintiff insists, that inasmuch as by force of the act just referred to, the property in dispute was vested in the wife, after the death of the husband the law would imply a promise on the part of these executors to hand her over these moneys on demand.
The inquiry thus started is one that relates not to the right of the plaintiff to the fund in question, but to the appropriateness of the forum in which she has sought her remedy. Is the claim a legal or an equitable one ? That it belongs to the
Under the prevalence of these laws, as applied to the facts slated, there were two questions that were placed' before the Court of Errors for decision. The first was whether the check which the husband had received from the administrator of the father of the wife, in part payment of her distributive share of the paternal estate, was a chose in action of the wife that remained in the han'ds of the husband at the time of his death. This was obviously a question of some nicety, for it could be urged with much force in favor of the claim of the wife that the check was her chose in action, inasmuch as it had been given to the husband for the purpose of transferring to her the moneys due to her as a portion of her separate estate, while, on the other hand, such view was susceptible of the criticism that as the check had been taken by
And this doctrine is, in my opinion, exactly applicable to the present case, in the aspect in which it is now being considered, for the express promise laid in this count, and alleged to have been made by the deceased to his wife, has no legal value whatever. If an agreement, binding in a court of law, could be made between a husband and his wife, a promise to pay money justly due and recoverable in equity would, whenever such conditions existed, be necessarily raised by implication upon the ordinary legal grounds.
ISTor does it seem to me that the testamentary provision quoted in this count of this declaration can be of any avail in support of the action. The money claimed is not within the enumeration of the articles of property thereby bequeathed, for it is neither personal property which the wife had at the time of her marriage, nor is it an acquisition since made by her with her own property. This clause of the will fails to support the suit.
But I see no reason why the subsequent promise, which the count alleges proceeded from the defendants themselves, acting in their representative capacity, should not have that effect. For the present purpose we must assume the facts stated in the count to be true, and the juncture is therefore presented of money received by a husband in right of his wife, and of a promise on his part to pay it to her on demand and a nonfulfilment of such promise to the time of his death. ISTow it is clear1, such being the unqualified state of the case, that the
My conclusion is that the special promise to pay the moneys in trust, laid in these defendants in the manner stated, forms a legal basis for the present suit, and that the plea should be struck out.
It should also be observed that the plea, which is to the jurisdiction of the Circuit Court, 'is bad likewise on the ground that it covers the whole declaration, which contains an account stated in the usual form.
Let the Circuit Court be advised in conformity with the views above expressed.