Williams v. Kent

15 Wend. 360 | N.Y. Sup. Ct. | 1836

By the Court,

Nelson, j.

The question presented is, whether the defendant is liable for the debts of his wife, in a case where a suit had been commenced against husband and wife before the death of his wife, but had not been prosecuted to judgment previous to her decease. It is a question too plain for argument. The authorities are abundant and full to show that the suit abates if the wife dies before judgment. 1 Chitty’s Pl. 44. 1 Black. Com. last Lond. ed. 443,n. 5. 2 Kent’s Com. 145. 1 Bacon’s Abr. tit. Baron & Feme, 485. Reeves’ Dom. Rel. 71,72.1 Selwyn’s N.P.R. 202, 3. 3 P. Wms. 409.

By the 2 R. S.75, § 29, the husband, if otherwise competent according to law, shall be solely entitled to administration on the estate of his wife, but shall be liable as such administrator for the debts of his wife to the. extent of the assets received by him; and if he shall neglect to take out letters, he shall be presumed to have assets in his hands sufSc;ent to satisfy her debts, and shall be liable therefor. The assets here mentioned refer to choses in action of the wife that were not reduced to the possession of the husband during coverture. 2 Kent's Comm. 145. The plaintiff cannot avail himself, upon this record, of this provision of the statute for the purpose of continuing the suit. A recovery here would make the defendant personally liable, without regard to assets; the -statute does not authorize this, except in case of neglect to take out letters of administration ; then sufficient assets will be presumed. The question as to assets can arise when a new suit is brought against the defendant solely, and not before. After the death of the wife, the husband is not liable as such, and it is upon this ground alone that he is sought to-be charged by the declaration in this case.

Nor does the 1 2 R. S. 386, apply to this case. That section must be construed as applicable only where the cause of action survives against the surviving defendant. This was so by express terms in the old statute, 1 R. L. 519, § 9, and in 8 & 9 W. 3, ch. 11, § 7; 2 Tidd, 849. Surely the legislature did not intend to continue the suit against a surviving defendant, not legally liable individually in the case, and where the cause of action had ceased to exist.

Judgment for defendant.