6 Johns. 112 | N.Y. Sup. Ct. | 1810
delivered the opinion of the court. The defendant’s counsel made several points on the argument, two of which only I deem it requisite to examine.
1. The validity of the declaration; and, 2. The testator’s liability in consequence of the receipt of the 29th of September, 1779.
The objection is that the promise, to be rendered binding, ought to have been in writing, or alleged to have been made in consideration of assets. The counsel seemed to suppose, that the judgment on this count would be de bonis propriis, and that the executor would, in this mode of declaring, be prevented from pleading plene administravit. If such would be the consequence, then I should hold the objection to be valid; but according to the case of Secar v. Atkinson, (1 H. Bl. 102.) and of Executors of Hughes v. Hughes, (7 Bro. P. C. 550. and 2 Sound. 117. e. note 2.) the judgment will be de bonis testatoris, and this mode of declaring is
The second point is clearly with the defendant. The receipt is proved by an account between the testator, in behalf of his son, the plaintiff, with the estate of Mary Dewitt; and it is evident that Henry Dewitt must have died before his wife Mary.
It cannot be pretended, if the testator was entitled in his own right to the share of his wife in her mother’s personal estate, that his ignorance of his rights, and receiving that share, as for his son, will give the plaintiff a legal right to call the representative of his father to an account for what he had a right to receive and retain.
That the husband surviving his wife, is entitled to all her dioses in action, as well as to her personal estate in posáession, cannot be controverted. The 16th section of the act concerning executors and administrators, and the distribution of intestates’ estates,
It may be added, that there is not an authority to be met with contradicting these well and clearly established principles.
The plaintiff rests his right to recover, on the ground that the testator received money to which the plaintiff is entitled; and the only count in the declaration on which he can recover, is the one for money had and received. Should it, therefore, be admitted, that as the testator did not take out letters of administration on the estate of his wife, he is to be regarded as only equitably entitled to the money he received, this equitable right is, in this action, sufficient to protect the defendant from any responsibility; for it cannot be questioned, that in the action for money had and received, the defendant may make any defence which shows that the plaintiff, ex asquo et bono, is not entitled to recover. Great stress has been placed on the terms of the receipt; and that it appears the testator meant to receive the money for his son, the plaintiff. I consider this as furnishing no legal or equitable title to the plaintiff, to sue for the money thus received, if the defendant has otherwise a right to retain. The amount of the argument is this, the defendant’s testator received his own money, or money to which he was entitled, for the plaintiff, and in this action, in which the plaintiff is bound to show that the money so received was his, or that he was equitably entitled to it, he shows directly the reverse, and that it was his father’s. It cannot be pretended that the receipt operated as a transfer of the property from the father to his son. It was a mere muniment of evidence, and worked no change in the right to the money.
I cannot, however, assent to the position, that the plaintiff has even a technical legal title to the money received by his father. The administration given by the statute to the husband who survives his wife, cannot be necessary to entitle him to the beneficial use of what he
The equitable rights of the husband, or his representatives, will arise, should letters of administration be taken out on her estate by any other than the husband or his personal representatives. The legal title to recover the choses in action of the wife, would then reside in such administrator, and the equitable right to them in the husband or his representative.
The construction of the statute must be the same in law as in equity ; and it cannot be maintained that when it gives the right in the deceased wife’s personal estate to her husband, and gives him the right of administration, that any other person has a legal title against the. husband.
Baron Comyns, in his Digest, (tit. Baron and Feme, E. 3.) lays down the law to be, that if the husband dies without administering to the personal estate of his wife, it goes to his representative, and is vested in him before administration taken out, and not to her next of kin; and he takes the distinction I have mentioned, that if administration is granted to such next of kin, yet in equity he is looked on as a mere trustee for the representatives of the husband.
Upon no principle can the plaintiff recover, and the defendant must have judgment.
Judgment for defendant.
5 Johns. Rep. 72. A receipt may be explained or contradicted, by parol evidence.
24 sess. c. 174. s. 16.
Note 1. 351. a. Mr. Hargrave’s Notes extend no further than folio 190 or to half the work, the remaining notes are by Mr. Sutler.