Stimpson v. Achorn, 158 Mass. 342

158 Mass. 342 | Mass. | 1893

Knowlton, J.

The plaintiff, as administratrix, had a good title to the property in question. The gift from her husband to her, considered as an attempt to make the furniture her sole and separate property under our statute, was invalid. Pub. Sts. c. 147, § 3. At common law, such a gift cannot transfer the property during the lifetime of the husband, and can take effect after his death only in case it does not interfere with the claims of creditors, and in case there was a delivery in his lifetime and a retention of possession by the wife. The gift is revocable, and, if the property is subsequently taken back into the possession of the husband, the wife’s right is at an end. Spelman v. Aldrich, 126 Mass. 113. Fellows v. Smith, 130 Mass. 378. Marshall v. Jaquith, 134 Mass. 138. In the present case, it does not appear that there was any delivery to the plaintiff by her husband, or that she was ever in possession in his lifetime.

The testimony, offered by the defendant, of the declaration of the plaintiff’s intestate, that he had put all his property out of his hands, it not being suggested that the statement referred to any other disposition of the personal estate than the gift to his wife, was immaterial. It had no tendency to contradict the plaintiff’s present contention.

The court rightly ruled that there was no evidence to warrant a verdict for the defendant. The agreement to sell, and the subsequent bill of sale, did not purport to convey the plaintiff’s property, but only that belonging to Maria W. Stimpson and George R. Stimpson. It is not contended that the defendant took any title to this property under those writings.

The ¿ontention is that the plaintiff is estopped from claiming the property because of the conduct of Nason and George R. Stimpson, her agents, in so acting as to induce the defendant to believe that he was getting a good title under the writings. There is no evidence to connect the plaintiff personally with these transactions, and if we assume that there was evidence against Nason or George R. Stimpson such as would warrant a finding of fraud against them, and work an estoppel against the plaintiff if she were bound by their conduct, the answer to the defendant’s contention is that they were the plaintiff’s agents only to sell her property. She might be bound by their fraudulent conduct while acting for her in making a sale, but she would not be affected by their fraud in selling the property of another person, and pretending at the same time that her property belonged to that other and was included in the sale; nor could she be estopped on the ground that, while having authority to represent her in selling her goods, they silently stood by and permitted her goods to be sold and paid for as the property of another. Such an act would not be within their authority, nor done in the transaction of her business. There was nothing disclosed at the trial to interfere with the right of the plaintiff to recover the value of her property.

Exceptions overruled.