5 Johns. Ch. 196 | New York Court of Chancery | 1821
The question submitted in this case is, how far, and to what extent, Henry T. E. Schuyler, deceased, had reduced to possession the distributive share belonging to his wife, of the estate of Gerrit Fisher, deceased, so as to be enabled to transmit the same, as part of his per
After stating the facts of the case, his Honour proceeded <
The only point in the case, arising from these facts, is, whether the distributive share of the 400,000 dollars, belonging to Mrs. Schuyler, and which came from N. J. V., the administrator, to Bleecker, after the death of S., did, or did not survive to the wife, as not having been reduced to possession by the husband, in his lifetime. J. am relieved from the necessity of examining into the effect of the receipts by B., prior to the husband’s death, because his wife’s share, and more than his wife’s share of those receipts, were paid over to the husband. After looking into the authorities which have been referred to by the counsel, and upon a consideration of the doctrine of the cases, there remains no doubt in my mind, that the wife was entitled, as survivor, to all that portion of her distributive share which was not paid over to Bleecker, but remained in the hands of the administrator of F. at the time of her husband’s death. There is nbt even colour for the pretension on the part of the plaintiffs, that the assets of F., the intestate, which were in the hands of his administrator on the death of S., were to be considered as no longer things in action, and held by him, as administrator, but as actually reduced to the husband’s possession, so as to cut off the right of survivorship in the wife.
As I do not know that this question has ever been discussed in this Court, it will be satisfactory to review some of the leading cases.
We have no concern, at present, with the doctrine that establishes the husband’s right to his wife’s chases in action, in case he survives her. It appears to be settled, that he is, in that event, entitled to them, whether they were or were not reduced to possession by him, in her lifetime. Her whole personal estate in action, as well as in possession, vests in the husband upon her death, for his right to administer on her personal estate includes a right to her choses in action.
Nor have we any concern, at present, with the doctrine, that if the husband and wife give a letter of attorney to a third person, to receive a legacy due to the wife, as was the case in Huntley v. Griffith, (Gouldsb. Rep. 159, Moore, 452. S. C.) or if he alone gives a letter of attorney, according to the dicta of the judges in that case, a receipt by the attorney changes the property of the legacy, and transfers it to the possession of the husband. That doctrine does not apply, because the attorney, in the present case, did not receive the property for which the defendants are sought to be accountable, until after the husband’s death. The present inquiry then is, whether there was any such interference, or change of the wife’s property, by the husband, before his death, though it did not come actually into his possession, or into that of his attorney, as to take away the right of survivorship in the wife ? And for the more full illustration of the point, we will see what acts the husband may do, to affect the wife’s property, without reducing it to actual possession.
In the first place, he may assign, for a valuable conside - ration, his wife’s choses in action. This was agreed to in Carteret v. Paschal, (3 P. Wms. 197.) and expressly decided in Bates v. Dandy, (2 Atk. 206.) The wife, in the last case, became entitled, during coverture, to a distributive share of an intestate’s estate, and that share consisted of two mortgages, which the husband took and left with a creditor, under a promise to assign them, by way of security; but died before actual assignment. Lord Hardwicke held this to be an assignment in equity, pro tanto, so far as the debt to the creditor was concerned, and that though the husband might have disposed of the whole interest, yet as he did not the residue of interest in the mortgages belonged to the wife
The doctrine of these cases is, that the husband may assign his wife’s choses in action, for a valuable consideration, to a creditor; but even then the assignment is subject to her equity for a reasonable provision. (Vide the cases of Pryor v. Hill, 4 Bro. 139. Like v. Beresford, 3 Vesey, 506. S. P.) Those cases, also, show, that there is no distinction between the case of an interest vesting in the wife before or after coverture; and the inference from them is, (and the position is expressly conceded in other cases, and is well established. Burnet v. Kinnerton, 2 Vern. 40 ; Lord Thurlow, in Saddington v. Kinsman, 1 Bro. 51. note to P. Wms. 381.) that a voluntary assignment by the husband of the wife’s personal property in action, without consideration, will not bind her, if she survives him. This admission of the right of assignment, for a valuable consideration, so as to pass the right of property free from the wife’s contingent right of survivorship, (though not from the wife’s equity for a reasonable provision for her support,) and the denying of this effect to a voluntary assignment, were also expressly declared by the Master of the Rolls, in Mitford v. Mitford. (9 Vesey, 87.) He there held, that an assignment in bankruptcy had no greater effect than a voluntary assignment, and he applied the rule to the case of a legacy given to the wife during coverture.
It is to be observed, that we are examining the cases in respect to the question of the wife’s right of survivorship, and how far the property has been altered so as to prevent it.. We have nothing to do, at present, with the point
In Garforth v. Bradley, (2 Vesey, 675.) Lord Hardwicks discussed more fully the control which the husband had over the wife’s personal property lying in action. The wife had a legacy left her during coverture, and part of another legacy came to her by intestacy. The husband assigned over the whole interest, with a proviso, that at his request the assignee should reassign. He died, and the wife survived him, and the question arose between the respective representatives of the husband and of the wife, whether the surplus of her estate arising from the bequest, and the intestacy, survived. There was a settlement in that case, but the Chancellor decided the question arising on the survivorship of the legacy and distributive share, independent of the settlement, and upon the general doctrine applicable to the case. He observed, that whenever a c.hose in action came to the wife, whether vesting before or after marriage, it would survive to the wife, if she survived her husband, with this distinction, however, that as to those things which came during coverture, the husband might bring an action in his own name, and might disagree to the interest of his wife ; and a recovery in his name was equivalent to reducing it to possession, and it would go to his representatives ; and for which point he cited the case of Hilliard v. Hambridge, (Alleyn, 36.) He said further, that the husband might have released the money, or have assigned it for a valuable consideration to a creditor or purchaser. But in that case, as the assignment was not absolute, but with a proviso which created a trust for the benefit of the husband, there was no alteration of the property, as the husband was previously the owner, subject to
With respect to a decree, judgment, order, or award-, in favour of the husband, as to money to which he Was entitled in right of his wife, it seems to be a settled rule, that if he sues alone and recovers, the property vests in him by the recovery, and is so changed as to take away the right of survivorship in the wife¡ but if the suit was in their joint names, the wife, as survivor, would take the benefit of the recovery. (Oglander v. Baston, 1 Vern. 396. Nanny v. Martin, 1 Ch. Cas. 27. Heygate v. Annesley, 3 Bro. 362. 1 Fonb. 305, 306, 308.)
It appears, then, by the cases which we have hitherto noticed, that if the husband appoints an attorney to receive the money, and he receives it, or if he mortgages the property, or assigns it without reservation, and for a valuable consideration, or if he recovers it by a suit in his own name, or if he releases the debt, in all these cases, the right of survivorship in the wife ceases. But with respect to suits in this Court by the husband, for the wife’s legacy or distributive share, I apprehend the rule to be that the wife must be made a party. This was considered to be the rule by the Master ol the Rolls, in Langham v. Nanny, (3 Vesey, 467.) who observed, that as the husband could not reach his wife’s property vested in trustees, who had the legal interest, without application to Chancery, he could not sue without joining her with him; and then the Court would make him provide for her, unless she consented to waive any provision. And again, in Blount v. Bestland, (5 Vesey, 515.) Lord Loughborough declared the same thing, and that the husband could not file a bill for the wife’s legacy, without making her a party. And in Carr v. Taylor, (10 Vesey, 578.) the wife claimed a distributive share as next of kin to an intestate, who died while she was a feme covert ; and the Master of the Rolls observed, that “ whatever controversy there might have
The case of Blount v. BesÚand may also be referred to, in order to show that any indulgence given by the husband to the executor holding a legacy for the wife, and even receiving the interest of it, and suffering the principal to remain in the executor’s hands, after the executor had showed a readiness to pay it, does not alter the nature of the property, or reduce it to the possession of the husband, so as to take away the right of survivorship to the wife. In Wildman v. Wildman, (9 Vesey, 174.) we have an equally strong instance of protection given to the contingent right of survivorship. The wife, while under coverture, became entitled to a distributive share of personal estate, as next of kin, and which consisted partly in public stock. The administrator transferred her share into her name, and she and her husband had transferred some part of it, and the residue stood in her name at his death. The Master of the Rolls, without giving any opinion whether the husband had a right to have transferred the stock into his own or another name, held that as the husband had not exerted any power to reduce it into possession, the property did not vest in him, so as to prevent the wife from taking it as survivor. A still more striking instance of the scrupulous care over the wife’s right, appears in Baker v. Hall. (12 Vesey, 497.) The husband, as executor, took possession of the real and personal estate of the testator, and his wife was a residuary devisee. But as the husband took possession, in the character of trustee and executor of the will, and not as husband, the Master of the Rolls held, that the wife’s share of the residue of the personal estate could not be deemed sufficiently reduced into possession, so as to prevent its surviving to her upon
Under the doctrine settled in these cases, there is no pretence for the suggestion, that the distributive share of Mrs. Schuyler, which remained in the hands of A/1. J. V. the administrator of the intestate, at the time of the death of S., was reduced into the possession of S., so as to entitle his representatives to that share in preference to his widow, While the share remained in the possession of the -administrator, it retained the character of assets, and the legal title and possession were in him, qua administrator. The distributive share continued in the possession of the administrator as much as the legacy continued in the possession of the executor, in Blount v. Bestland. Schuyler had not attempted to exercise any authority or dominion over that property, by mortgaging it, or assigning it. The letter of attorney authorizing N. J. V. to take out letters of administration, and to distribute the shares coming to the heirs, was a power executed by the husband and wife jointly, and the direction to pay over was a direction to pay to them jointly the share of the wife. If the administrator was to have been compelled by suit to distribute, it must have been by a suit in eqpity in their joint names; and from what was said in Campbell v. French, (3 Vesey, 321.) it may be questioned whether the Court would not have required, under the circumstances of this case, the consent of the wife, before it required the administrator to pay to the husband alone. There is nothing in this case to show that the husband ever intended, by any act of his, to appropriate this share to himself, so as to cut off his wife’s contingent right of survivorship. We should act in contradiction to the whole course of the decisions, as well as to the truth of the fact, if we were to consider
I am, accordingly, of opinion, that the defendant, Sally if., upon the death of her husband S., became entitled, in her own right, to that portion of her distributive share which had not been actually paid over to S. or to Bleecker his attorney, in his life time; and I shall so declare the rule.
Decree accordingly»
