Shaw v. Hallihan
46 Vt. 389
Vt.
1874
Check Treatment

The opinion of the court was delivered by

Wheeler, J.

The husband is liable with the wife for her torts, but she is not liable for his torts, unless they are her torts also. This action being against both husband and wife, for tort, can only be maintained for some tort of the wife. The conversion of property to use merely by the wife, is to the use of the husband, and not of herself. Salk. 114; 2 Wms. Saund. 47 i. The mere detention of property wrongfully by her, is not her tort, but her husband’s. 2 Greenl. Ev. § 647. This appears from the fact that the action of detinue, the gist of which was wrongful detention, could be maintained against the husband only. 1 Chit. Pl. 82; Bac. Ab. Lit. Detinue, A. Where the conversion is by destruction of the property by her, she .may be held with her husband. Keyworth v. Hill, 3 B. & Ald. 685 ; 2 Roper Hus. & Wife, 77. Or by consumption by her; as, “ suppose she were to take my sheep and eat them.” Buller N. P. 46. According to these principles, the wife cannot he held liable for the articles of specific property nor for the money merely detained and kept from the plaintiff by the defendants. But the appropriation or payment of money, as it had no ear-marks, and circulates as currency, would be equivalent to destruction or consumption of it in respect to the person entitled to it. Such disposition of it could be made by the wife independently of the husband, and, if unlawful, would constitute a tort of hers, for which both would be holden. The evidence in this case tended to show an appropriation and payment by the wife of money left by the intestate at his decease, and that she paid part of it for the funeral expenses. Probably, it was unavoidably necessary for the husband to provide for the *394burial of the body of the intestate, being at his house, as there was no administrator to do it in proper season, and there appears to have been no relative who would do it. The expenses of the burial would constitute a claim, preferred above all others, against the estate. Gen. Sts. ch. 53, §34. But the defraying of them out of the effects would, at common law, make the person so meddling an executor de son tort. Bac. Ab. Lit. Exrs. & Admrs. B. 3. And it would be wrongful and remain so, unless the person should become executor or administrator rightfully. 2 Redf. Wills, ch. 1, § 2, and note 6. The liability of an executor de son tort, was enforced by suit against him as if he was rightful executor. The system of settling estates by proceedings in the probate courts, in this state, has so superseded common-law remedies as to prevent maintaining actions against executors or administrators, otherwise than to enforce the proceedings in the probate court. Boyden v. Ward, admr. 38 Vt. 628. Perhaps a common-law action could not be maintained any more against a wrongful, than .against a rightful, executor; and so there may-not be any remedy against a person who wrongfully intermeddles with the effects of a deceased person, other than by action in favor of the proper executor or administrator when appointed. 2 Redf. Wills, ch. 1, § 2, note 6. But that question is not material, nor passed upon now. It seems to be settled that any one wrongfully disposing of such effects, before or after letters testamentary or of administration, is liable to an action therefor by the executor or administrator when appointed. Plow. 275; Toller, Exrs 48; Manwell, admr. v. Briggs, 17 Vt. 176. Hence, the defendants may be held liable, as well for the money paid by the wife for funeral expenses of the intestate, as for that appropriated by her otherwise. The pro forma judgment of the county court is reversed, and the cause remanded.