20 Mo. 363 | Mo. | 1855
delivered the opinion of the court.
The questions involved in this case are of much importance to the community, and have engaged our earnest and serious attention. These questions have met with different solutions in some of the states of our Union. But we are inclined to think that the weight of authority, both in England and in this country, is on the side of the plaintiff, Wood. Do the facts in this case authorize the court to declare that, in the present state of the law, the wife’s right of survivorship must prevail over the assignee of the husband and wife ? We answer in the affirmative.
1. Here, the divorce obtained by the wife from the husband must, in law, be considered the same as the death of the husband; and the wife must be looked upon as his widow. In the case of Browning v. Headly, (2 Rob. Va. Rep. 340,) the divorce obtained by the wife from the husband by the legislature of Kentucky, was considered as operating as the civil death of the husband. Judge Stanard said : “I concur in the opinion of Judge Allen, that the effect of the act of divorce upon the rights of the wife is to place her in the same position as if her husband had then died.” I dismiss, therefore, this question, by stating that there is no doubt of the correct
2. But the more important question, “ does the conveyance for value of the husband and wife of the wife’s reversionary interest in the slaves and other property belonging to her mother in her dower right, pass the wife’s interest to the assignee, discharged of her right of survivorship ?” remains yet for our consideration. This question we, after considering the various authorities, unhesitatingly answer in the negative.
By the common law, the husband was entitled to administration on his deceased wife’s estate, and, like all other administrators, had exclusive enjoyment of the residuum after payment of debts.
The statute of 22 and 23 Charles II, chap. 10, compelled the administrator, after the payment of funeral charges, debts, and all expenses, to distribute the remainder of the personal, estate to the wife and children, and children’s children, if there-be any, or otherwise to the next of kindred to the dead person..
There were doubts whether, under this last statute, the husband was not, like all other administrators, compelled to make-distribution among the next of kin of the deceased wife.
To remove these doubts, the 25th section of 29 Charles II was enacted, which placed the estates of feme coverts dying-intestate without the operation of the 22 and 23 Charles II,. and left their husbands the same power and privileges- as they • had before the passage of the 22 and 23 Charles II. The husband then succeeded, by his right to administer upon the estate • of his wife, after payment of funeral expenses and debts, to - the residuum of her estate, discharged from the burden of distribution among her next of kin. This rule of the common law - has been adopted by some of the states of our Union, and not. by others. The state of Missouri has not adopted it. Nor can . the husband, as the wife’s administrator, receive the estate of the wife with us, discharged from the burden-of distribution;, but, like other administrators, he must account to those entitled,,
In the case of Leaky’s Mm’r v. Maupm, (10 Mo. Rep. 372,) this court held the following doctrine — the opinion delivered by Judge Scott, the other judges concurring : “ Marriage is, by law, an unqualified gift to the husband of all the personal estate of the wife in her possession at the time of its taking place, and if be should die in an hour after the marriage, having received a large personal estate from the wife, all of that estate, except what our law allows her as dower, would go to the kindred of the husband and not to the wife. But as to choses in action, or mere rights to receive money or property from another, the law only gives the husband a qualified right to them, viz : on condition that he reduces them to ■possession during coverture, and if he fails to do this, if the •wife survive, she will be entitled to them. This principle is ■applicable as well to choses belonging to the wife at the time of marriage, as to those which accrue to her during coverture. The distinction between the two classes of choses is this, that, in a suit to recover the former, the wife must be joined with the husband ; in a suit for the latter, the husband may join his wife or not, at his election ; if he sues alone and recovers judgment, it is an election to have the chattel in his own right freed from the right of survivorship in the wife ; if he joins her in the suit, her right of survivorship still continues after judgment.” This decision has an important bearing on the case now before us. The right of the wife’s survivorship to choses notvreduced by the husband into possession before his death is plainly .announced, and that there is no distinction in such an event between choses at the marriage and choses during coverture. We must then see if there had been such a reduction into possession as will enable the husband to assign, discharged from the right of the wife’s survivorship.
In Purdew v. Jackson, reported in 1 Russ. Ch. Rep. 1, Sir Thomas Plumer, Master of the Rolls, held that, " Where hus
Sir Thomas Plumer, Master of the Rolls, begins by saying : “ The property in question is a moiety of one-seventh share of a fund in court, which Mrs. Rolton was entitled to have transferred to her, upon the death of Isabella Purdew. In October, 1812, she and her husband transferred, for a valuable consideration, this moiety to Rose. In the assignment, Bolton contracted that, immediately after the death of Isabella Purdew, Rose should have the right to demand and sue for this personal chattel in the name of Mr. and Mrs. Bolton, or either of them, and that, in the mean time, his life should be insured. Bolton died in 1819, in the life time both of Isabella Purdew and Mrs. Bolton. The tenant for life being now dead, Rose insists upon his right under the assignment, and that raises the general question whether, where the wife has an interest in reversion or remainder, in a personal chattel, expectant on the death of another person, and the husband assigns this interest for valuable consideration and dies before the determination of the life estate, the right of the surviving wife is barred.”
The Master of the Rolls proceeds : “ There are two points which deserve attention; first, what is the nature of the legal right of the husband in a personal chattel to which the wife is entitled in reversion or remainder ; secondly, has the person to whom, for valuable consideration, the husband assigns a chat
“What then, is meant by a chose in action? The terms “ chose in action,” and “ reduced into possession,” are legal phrases, not borrowed from a court of equity, but derived from the language and doctrines of the common law ; and in dealing with them, it is of importance that we should confine ourselves strictly to the subject before us, “ a personal chattel,” and not perplex ourselves with principles applicable only to real property. The right of property in a personal chattel is inseparable from possession. The law of England does not know such a thing as the possession of a personal chattel being in one man, unless by the authority of the rightful owner, while the right of property is in another. If you have not the possession, you may have an immediate right of action; but till you recover the possession of the chattel, you have not the right of property. When it is reduced into possession, the property in it vests, and not before; for the property in a personal chattel does not become complete till possession is obtained. Therefore, the law of England, speaking of the different sorts of property which a married woman may have, and designating a chose in action to be a mere right of action to a personal chattel not in actual possession, holds that the husband must, as a condition, without fulfilment of which he does not acquire a right to it, reduce the thing into possession ; that is, he must make the property his own, for, without possession, the property is not his ; he has only a right of action, which will ultimately ^belong either to himself or to his wife, according as the one or the other may happen to survive. Now, in 1812, the
“ The next question is, “ What is the effect of the assignment ?” A great deal of fallacy has been introduced into this part of the argument, from not considering that an assignment makes no alteration in the thing transferred. When the husband has assigned the wife’s chose in action, does the thing assigned continue to be a chose in action, or does it become a personal chattel in possession ? If it does not continue after the transfer to be a chose in action, what makes it cease to be so ? A chose in action cannot cease to be a chose in action, except by being reduced into possession; but it would be a contradiction in terms, in the very statement of the case, to say that this fund, which could not be reduced into possession till 1822, was reduced into possession in 1812. It is in vain to talk of Bolton’s assignment as being a constructive reduction into possession. In cases where there is a present right, and an assignment of it is immediately followed by possession of the thing, the assignment, being the commencement of that immediate actual possession, may be regarded as a kind of constructive possession. But to say that the assignment of a chose in action, which is at the time incapable of being reduced into possession, is to be construed as a reduction of it into possession, is to ascribe to the assignment the effect of totally transforming the nature of the thing assigned. Up to the time of Isabella Purdew’s death, the thing which Bolton assigned continued to be a chose in action. While it Was in that state, Bolton died without having been able to fulfil the condition on which alone the law gives the husband the choses in action of the wife; therefore, the legal right of the wife now attaches
In the same case, the Master of the Rolls said : “ The doctrine respecting assignments by operation of law has been long settled by a train of cases from Grey v. Kentish to the present time, without one authority to the contrary. The wife’s equity uniformly prevails against the assignees of the bankrupt.” "An opinion has certainly prevailed,” says Sir Thomas Plumer, “that a distinction subsists between an assignment by operation of law, and an assignment for a valuable consideration to an individual by contract; that the former is no bar to the right of the surviving wife, but that the latter is.” He continues : “ That there may be, for some purposes, a difference between these two species of assignment, may be true ; but that they should be productive of effects so directly contrary in this instance,'is a proposition for which I can find no solid ground. I think both kinds of assignment ought to have the same effect,- and that it would be manifest inconsistency to decide the contrary. In both cases, the assignment passes the share of the wife, but passes it sub modo, viz : provided the assignees receive the share, or its value, during the life of the husband; but if he dies before the share is reduced into possession, and it is left"to be a chose inaction when the interest
Chancellor Kent says : “ The court of chancery has always discovered an anxiety to provide for the wife out of her property in action, which the husband may seek to recover. If he takes possession in the character of trustee, and not of the husband, it is not such a possession as will bar the right of the wife to the property, if she survives him. The property must come under the actual control and possession of the husband, qua,si' husband, or the wife will take as survivor,.instead of the personal representatives of the husband.”
“ A general assignment in bankruptcy, or under insolvent laws, passes the wife’s property and her choses in action, but subject to her right of survivorship ; and if the husband dies before the assignees have reduced the property to possession, it will survive to the wife; for the assignees possess the same rights as the husband before the bankruptcy, and none other. It has been accordingly held that a legacy in stock was not reduced to possession by such an assignment, so as to bar the wife’s right of survivorship, and the wife took it by survivorship as against the assignees.
“The wife’s equity to a reasonable provision out of her property, for the support of herself and her children, makes a distinguished figure in the modern chancery cases, which which relate to the claims of the husband upon the property of his wife in action. If the husband wants the aid of chancery to enable him to get possession of his wife’s property, or if her fortune be within the reach of the court, he must do what is equitable, by making a reasonable provision out of it for the maintenance of the wife and her children. Whether the suit for the wife’s debt, legacy or portion be by the husband or by his assignees, the result is the same, and a proper settlement on the wife must first be made of a portion of the property. The provision is to be proportioned, not merely to that part of the equitable portion'of the wife’s estate which the husband seeks, but to the whole of her personal fortune, including what the hus
In Hayward v. Hayward, (20 Pick. 519,) the Supreme Court of Massachusetts declared that, “ if a distributive share of intestate personal estate accrue to a married woman during coverture, and the husband die before the decree of distribution, and without any act on his part reducing it to possession, it survives to the wife.” In this case, Judge- Dewey makes a general review of the English cases, and overthrows the case of Griswold v. Penniman, (2 Conn. 564,) relied on by the defendant’s counsel in this present case to support, in part, his propositions.
I shall not notice, in extenso, this opinion of Dewey, Judge ; it is a lucid and able argument in support of what I consider the law on the subject of the wife’s right of survivorship. He says : “■ The general rule, as to choses in action which belong to the wife at the time of the marriage, is well settled. They do not vest absolutely in the husband. He acquires by marriage only an inchoate right: he may reduce them into possession and take the avails of them ; but if the wife survives the husband, and the choses remain uncollected, she is entitled to them, and they do not pass to his representatives.” Such he shows also to be the law in regard to choses in action accruing to the wife during coverture, and the' attempted distinction between them is without principle.
In Schuyler v. Hoyle, (5 John. Ch. Rep. 176,) decided in 1821, before.the great case of Purdew v. Jackson, for that was in 1824, Chancellor Kent said: " After looking into the authorities, and upon a consideration of the doctrine of the cases, there remains no doubt in my mind, that the wife was entitled, as survivor, to all that portion of her distributive share which remained in the hands of the administrator- of Mr.
In Pinkard et al. v. Smith & wife, (Littell’s Selected Cases, 336, 387,) it is laid down that a vested remainder in slaves, accruing to a woman during coverture, vests in her husband as much as a right in possession would ; and yet it was held that, if the husband should die before the determination of the particular estate on which the remainder depended, it would survive to his wife. Now personal estate of the wife, which the husband reduces into possession, becomes his, and goes to his personal representatives, and not to her’s. There is a seeming inconsistency in some of the Yirginia decisions, and this Kentucky case is founded on the Yirginia decisions. In this case, (Pinkard v. Smith,) Judge Owsley says : “But notwithstanding the husband, as he survived his wife, might have maintained an action in his own name to recover the slaves, it does not thence follow that the wife would not have been entitled to them as survivor of her husband, had he died before her. To recover the slaves during coverture, the suit might have been brought either in the- name of the husband alone, or in the name of the husband and wife. It is a general rule that, wherever the suit maybe brought either in the name of husband and wife, or in the name of the husband, the right will survive to the survivor. These observations have been made on the supposition that the interest which a husband, gains in the slaves accruing to the wife during coverture, is to be regulated by the principles of the common law in relation to chattels ; and that •we have supposed, because we infer that the statute of this country has placed slaves, as to the ■ husband’s interest, on the footing of chattels. The statute of this country, to which we allude, (2 Digest 1156,) was taken from a statute of Yirginia, in force at the separation; and by the appellate court of this country, this statute has been construed to place slaves on a
In the case of Upshan v. Upshan et al., Judge Tucker said: " True it is, William Upshan, by his codicil, gave the appel-lees what he had no power to bequeath, his wife’s interest in^ , the dower slaves held by her mother, being merely a rever-'J sionary interest, which, in the event of her surviving her husband, without his disposing thereof in his life-time, or reducing the slaves into possession, would survive to her. But it is clear from the words of the codicil, that he thought the slaves were his own, and that he had a power to bequeath them by his will. This was clearly a misconception of his right in respect to them; for, though he might have sold his wife’s reversiona-ry interest, it being a vested interest, yet, if he neglected so to do, ho could not dispose of it by will, but it would survive to her.”
I confess that there appears to me an absurdity in this opinion of Judge Tucker. Here, the wife’s interest in slaves belonging to her mother, in right of dower, is said to be her re-versionary interest, but, at the same time, a vested interest. The wife and husband could not, by any process at law or equity, during the life of the mother, have reduced these ne-groes into their possession. They had no right to the negroes which could be enforced by taking them out of the possession of the real owner for the time being, that is, the mother. The husband could not sell them, so as to deprive his wife of the right of survivorship; nor could husband and wife sell them, so as to deprive her of her right of survivorship by any principles known to the common law ; for a tenant for life had
I know that there are legal fictions, and upon one of these fictions is grounded the distinction that a chose in action, accruing to the wife during coverture, vests, at once, in her her husband, because she and her husband are one person in law, and all such choses in action, thus accruing during coverture, are vested at once in the husband, because she is merged in him ; but choses in action, at the marriage, are not thus vested at once, but must be reduced into possession. (Griswold v. Penniman, 2 Conn. Rep. 566.)
In the recent case of Browning v. Headly, (2 Rob. Rep. 340,) the rule laid down by Sir Thomas Plumer, in Pur dew v. Jackson, which rule was afterwards confirmed by Lord Lynd-hurst, in Honner v. Morton, (3 Russ. Rep. 65,) that, where a husband assigns personal property, in which his wife has a reversionary interest, expectant on the death of the tenant for life, and the wife and tenant for life both outlive the husband, the wife is entitled by survivorship, in preference to the as-signee, is recognized as sound by Judge Allen.
This case also recognizes the doctrine of the English chancery that, where an absolute equitable interest is given to the wife, the court will not permit the husband to recover it, without making provision for the wife, and that the husband’s assignee, whether general or particular, takes his interest, subject to the same equity. In this case also, the doctrine of “vested interest” is still kept up, and the husband’s assignment of the wife’s interest or share in her father’s estate, before the execu
Wherever such assignments have been considered reduction into possession, the dioses assigned were capable of being immediately possessed; there was an immediate right of possession, which was or could be soon completed or followed by ac-actual possession, (as a judgment, but before execution;) in these, the property may be considered as changed, and the condition substantially fulfilled. Sir Thomas Plumer’s opinion, in Purdew v. Jackson, (p. 70 :) “ The wife’s reversionary interest is incapable, in this case, of being reduced into the possession of the husband, until the death of the tenant for life; the death, then, of the husband happening before the death of the tenant for life,- his previous assignment cannot affect the wife’s right as survivor.”
We do not consider this reversionary interest in the wife as a vested present interest in possession, neither in her nor in her husband ; and we think the authorities amply sustain us in this opinion, notwithstanding the Virginia decisions to the contrary. We cannot see how, if the reversionary-interest of the wife in the slaves belonging to her mother,” as her dower property, be a vested present interest in her husband, so that he can sell it, and destroy thereby the wife’s survivorship, why he cannot will it away, and destroy her right by will. If he were to reduce her dioses in action into his possession, he might will them away, because they become his absolutely by such reduction ; the property becomes changed by being turned into his possession. He can will away such property ; why not will away a present vested interest in him to his wife’s reversionary interest ? Is it because this interest ceases at his death, and being no will until his death, when it becomes a will, there is no interest for it to operate on ? And yet he can sell, and after his
There now remains but one further question, which is, whether the plaintiff’s petition states sufficient facts to warrant the judgment of the court below.
The plaintiff’s petition shows that all the property which was given to her by way of advancement, and all which she got from her father’s estate has been squandered by her husband; that she is left alone, with several small children, to depend upon her own personal labor for a support; that the defendant, Simmons, has, by some means or other, got several of the slaves which came to her from her father’s estate; and that he will endeavor to get the remainder of her estate, which comes' to her from her mother’s death, out of her mother’s dower; that, before her mother’s death, she was divorced from her husband ; that Simmons claims this property under the contract made by her husband and herself, before she was entitled to have the interest in her mother’s dower estate. We are satisfied the petition states grounds sufficient for the interference of the court below, and that, in right and justice, the defendant should be prohibited and restrained from interfering with the fragments of the estate of this poor woman.
Upon the whole case, we-are satisfied the law has been properly declared, and the judgment of the court below is affirmed ;