Wheeler v. Moore

| Superior Court of New Hampshire | Jul 15, 1843

Parker, C. J.

We are of opinion that the trustee cannot be charged, in this case. The money, in his hands, is not the money of the principal defendant. It is, in part, the avails of property which formerly belonged to the sister of the wife of the principal defendant, and it is her distributive share in the estate of her sister, who has deceased. The husband is not one of the heirs of that estate. Nothing has descended to him. The decree of distribution directs payment to the wife. It is true that payment may be made to the husband, and it will discharge the administrator. And it is also true that he has a right to claim this distributive share to his own use, and that a payment to the wife, so long as the husband is living, without his assent, will not be good.

But his right to claim the property, and to appropriate it to his own use, does not make it his, nor is he obliged to exercise that right. He may omit so to do, and on his death it will survive to the wife, not by any descent from him, or title derived through him, but in her own right, as heir of her sister. 9 N. H. Rep. 321, and auth. cited.

If the husband refuse or neglect to reduce it to possession, or to assert a claim to it, it is clear that after his death neither his heirs, nor his creditors, could assert any title to it. Nor could his administrator in their behalf.

But it is contended that his creditors, in his life-time, may appropriate it to the' payment of the husband’s debts, notwithstanding he neglects, or even refuses, to assert any claim to it. And there are authorities which recognize such a power and right on the part of the creditor. 20 Pick. R. 563, Wheeler vs. Bowen & Trustee; Ditto 528, Hayward vs. Hayward. It does not appear that these decisions are founded upon any peculiar statute provision of Massachusetts; and we always hesitate, when we find our impressions not in accordance with,the opinions of the very learned tribunal whose decisions- we have just cited. But we cannot adopt the principles of those decisions, which perhaps may be there but a legitimate result from the doctrine, stated in Commonwealth vs. Manley, (12 Pich. R. 175,) that a legacy to the wife, and the wife’s distributive share in an estate, vest absolutely in the husband. That doctrine, however, seems to have been overruled. 20 Pick. 528.

X' The principle which will authorize the creditor to interfere, without the consent of the husband or wife, and appropriate the property of the wife to the payment of the husband’s debts, is not apparent to us. The right of the husband, to take the distributive share of the wife to his own use, is a marital right. A creditor cannot exercise rights of that character, against the will of the husband. 12 N. H. Rep. 159, 165, Marston vs. Carter & Trustee.

We find the view which we took of this matter, in the case just cited, very distinctly sustained, in relation to legacies to the wife, by the opinion of Mr. Chief Justice Marshall, in Gallego vs. Gallego's Executor, 2 Brockenbrough’s R. 287. “ The property,” he says, “ does not become his,” [the husband’s,] “ nor is it subject to the liabilities which attach \ to that which is his, until it shall be reduced to possession. I'Till then his creditors have no claim to it. If he dies, leaving the wife, before reducing it to possession, his power is not transmissible to his representatives, but dies with him. Since the claim of the creditor extends only to the property of the debtor, it cannot reach a legacy until it becomes his property,” — and it is there held that “ a relinquishment by the husband, of his marital right to a legacy bequeathed to his wife, is valid as to the creditors of the husband, and a court of equity will not interpose its authority to compel the husband to reduce the legacy into his possession, for the purpose of subjecting it to their claims.”

Even in Massachusetts, the creditor must obtain a judgment, before he can defeat the wife’s right if she survive her husband. 1 Met. R. 476, Strong vs. Dinsmore Trustee. But while the creditors of the husband cannot appropriate the property of the wife to the payment of his debts after his decease, we are of opinion that they cannot maintain a fair title to do so in his life-time, against his and her consent, merely because the law has given him the power to take it to his own use ; when at the same time it recognizes his right to refuse, and holds the property to be hers, if he neglects to assert his rights of dominion over it.

Trustee discharged.