Searing v. Searing

9 Paige Ch. 283 | New York Court of Chancery | 1841

The Chancellok.

It is not material in this case to inquire whether the claim of the respondent to-the debts in controversy was a legal right, or one which was purely equitable. For in either case the result must be the same when she is called upon to account before the surrogate. (Gardner v. Gardner, 7 Paige’s Rep. 112. Jumel v. Jumel, Id. 591.) As to the debts due to the respondent at the time of her marriage, there does not appear to have been any agreement between her and her husband that she-should have the exclusive right to the same, notwithstanding her coverture ; so as to deprive him of his marital rights over the same as a part of her personal estate. The question, therefore, whether they belong to her by right of survivorship, or are a part of his personal property to be distributed according to the statute, turns upon the point whether the husband can be considered as having reduced the debts to his possession, as he had the undoubted right to do, in his lifetime.

Debts due to the wife at the time of her marriage belong to her if she survives her husband ; even where he has brought a suit and recovered a judgment in their joint names, if the money has not been actually collected. On the contrary, if the husband receives the amount of the debt, or novates such debt by taking a new security for the same in his own name, as he has a right to do if he thinks proper, the wife’s right of survivorship is gone ; and the new or substituted security for the debt belongs to his personal representatives. In the first case the suit for the recovery of the money must be brought in the name of the husband and wife jointly ; and where that is the case, if she survives the cause of action also survives to her for her benefit. But in the case of a new security taken in the name of the husband only, the right of the wife is entirely extinguished ; and the suit thereon must be brought in the name of the husband, or in that of his personal representative in case of his death. In the case of a new security taken in the name of the wife, after marriage, there appears to have been some doubt whether the suit should be brought by the husband and wife jointly, so as to give the cause of action to the wife in case she survived her husband, or in the name of the husband only. The better opinion, however, appears to be that the taking of a new security in the name of the wife is not an absolute reducing of the debt to possession, so as to deprive her of the right to the same in case of survivorship ; but that the husband, during his life, may bring a suit thereon in his own name or in the joint names of himself and wife at his election. Thus in Hilliard and wife v. Hambridge, (Alleyn’s Rep. 36.) in a suit upon a promise made to the husband and wife to pay an annuity to her during the coverture, it Was objected in arrest of judgment, that as the promise wras made after the marriage, the suit should have been brought by the husband alone. But the court of king’s bench held that the husband might elect to bring a suit in his own name upon the promise, or in the name of himself and wife jointly. So in Brashford v. Buckingham and wife, upon a writ of error in the exchequer chambers, (Cro. Car. 77,) where a judgment had been recovered in a suit by the husband and wife, upon a promise to the wife after coverture, founded on a meritorious consideration proceeding from her, it was held that the suit was well brought in the names of both ; and that such an action would survive to the wife. (See also Prat and wife v. Taylor, Cro. Eliz. 61; Fountain v. Smith, 2 Siderf. Rep. 128; and Brett v. Cumberland, 3 Bulst. Rep. 163.) And in the more recent cases of Philliskirk v. Pluckwell, (2 Maule & Selw. Rep. 393,) the court of king’s bench decided that a joint action in the name of the husband and wife might be brought upon a promissory note made payable to the wife during coverture. Dampier J. in that case refers to the decision in Day v. Pargrave, in Trinity Term, 14 Geo. 2, where Chief Justice Lee said that in case a bond was given to the wife during coverture, no action would lie for it by the wife solely; but that the husband and wife might have a joint action thereon during their lives, or the husband might bring an action in his own name during coverture ; yet if he did not, it survived to the wife. And the husband in that case having outlived his wife, it wras held that a suit upon the bond was well brought by him, as the administrator of the wife ; for it would have survived to her if she had outlived her husband.

The case of Nash v. Nash, (2 Mad. Rep. 133,) decided by Sir Thomas Plumer, as vice chancellor, appears to be directly in point to sustain the claim of the respondent in the case now under consideration. There the father gave to his daughter, a feme covert, a check upon his bankers for ¿£10,000, which she presented, and took from them a promissory note for the amount, payable to herself upon demand. She afterwards delivered the note to her husband, who received ¿6100 in part payment from the bankers and gave receipts therefor. Upon the residue of the note he continued to receive the interest during his life, but died without having received the remaining ¿69000 of the principal due thereon, leaving his wife surviving. In this state of things a question arose and was discussed before the vice chancellor, between the wife and the husband’s next of kin, whether the amount remaining due upon the note at the time of his death survived to her or belonged to his personal estate. And his honor decided that the note was a chose in action, which the husband had not reduced into his actual possession by the collection of the money thereon ; or by bringing a suit in his own name during coverture, and that the wife as survivor was therefore entitled to the monies due thereon, for her own use.

The execution of the deed for the Stewart farm by the wife constituted a valid consideration for the part of the purchase money which was agreed to be set apart and invested for her separate use, so as to make it the duty of a court of equity to protect that interest, even against the marital claims of the husband to the money deposited in the savings bank for her separate use, in case he had attempted to reduce it to possession in violation of his agreement. (Garlick v. Strong, 3 Paige's Rep. 440.) The meritorious consideration, then, of all the securities standing in her name, at the death of the husband, proceeded from her. And it is evident, from the facts stated in the return of the surrogate, that the husband never attempted to reduce these securities to possession or to deprive her of the benefit thereof during his life ; but, on the contrary, that he elected to treat them as her property. She is therefore entitled to them, by survivorship, at law as well as in equity.

The sentence and decree of the surrogate is, for these reasons, affirmed with costs.