Pettingill v. Butterfield

Pettingill v. Butterfield.

At common law the husband did not hold the choses in action belonging to the wife before marriage unless he and his wife recover them during her life.

It is not enough that the husband commence a suit in the life-time of his wifeupon such claim, but, in order to reduce the chose in action to his possession, he must recover judgment in her life-time.

Therefore, if pending an action by husband and wife for such chose in action, the wife die, tbesuit abates; but if they obtain judgment, he may,notwithstanding her subsequent death, issue execution or maintain an action of debt on such judgment.

Whether the statute of 1860, chap. 2312, sec. 1, which provides “that every married woman shall hold to her own use, free from the interference or control other husband, all property inherited by, bequeathed, given, or conveyed to her, provided such conveyance, gift, or bequest, is not occasioned by payment or pledge of the property of the husband,” applies to property owned by such woman before her marriage, quaere.

Technically speaking, an action abates upon the death of a sole plaintiff; but, whenever the cause of action survives, the administrator of plaintiff may come in and revive the suit and prosecute the same.

Assumpsit on the promissory note of the defendant, dated May 9, 1859, for §224.00, payable to Hepsabah Temple, or order, who after-wards married the plaintiff, and has died since the commencement of this suit, which was brought October 23d, 1861, and was in the name of the plaintiff and wife.

It appeared that an ante-nuptial contract was entered into between the plaintiff and the said Hepsabah, September 5, 1860, by which it was agreed that she should after the marriage continue to hold to her sole and separate use, and free from his" control and interference, a promissory note of the plaintiff, of September 4, 1860, for $500.00, and payable to her, or her order, at the time of his death, together with a mortgage made by him to secure the same; and to hold said note and mortgage in the same manner as if she had continued sole; with the right to dispose thereof by will or otherwise; and if she die intestate then to descend to her legal heirs, as if she were sole; with a provision that if she survive him she should have the use of all his property during her life and widowhood. Soon after this the parties were married, and since this suit she died, leaving a will dated September 23d, 1861, which was duly approved by the court of probate, Dec. 10th, 1862, by which she bequeathed to her husband the use of all her estate during his life, with a direction that said mortgage debt should not during his life be enforced, and giving to her relatives sundry legacies to be paid after his death; and giving her clothing to her sisters, to be delivered to them immediately after her decease.

No mention, however, is made, in the will, of the note in suit.

It appeared that administration on the estate of said Hepsabah, with the will annexed, was granted to David C. Butterfield, who has accepted the trust, and claims the note in question.

Under these circumstances, the defendant contends that the suit cannot be prosecuted by this plaintiff, and, upon trial by the court upon the general issue, this question is reserved for consideration, with the provision, that, if it be determined that the suit cannot behnaintained, the same shall abate, if otherwise held, then this case shall be discharged for further proceedings.

The plaintiff, after the trial commenced, claimed the right to reduce the note to possession, and exercised it so far as he might then do so.

The questions of law arising in this case were reserved.

G. Y. Sawyer, for defendant.

I. The plaintiff, John Pettengill, has no title or right to the note in suit. The act of July 4, 1860, Pamphlet Laws of 1860, P. 2248, passed after the date of the note, and taking effect prior to the marriage, gave to the wife, to her separate use, the note, and the debt secured by it. This was property given to her within the letter, clearly within the spirit, of the act. By virtue of the act the husband was barred of all right to reduce the note to possession.

II. The will of the wife gives to the plaintiff only the income or interest of the note during life. This he can receive only through the hands of her executor, as trustee of the fund. The principal of the note, at the death of the plaintiff, may be required to pay the legacies. If recovered by the plaintiff in this suit, what security have the legatees, or, if the principal is not needed for the payment of the legacies, have the heirs at law of the wife, who will then be entitled to it, that it will ever come to their hands ? If it goes into the hands of the administrator with the will annexed, the plaintiff, and the legatees, or heirs at law, have the security of his administration bond; the former for the payment to him of the interest during his life, the latter for the payment of the principal to them at his decease.

III. If it is necessary to preserve the attachment lien in this suit, the court have the power to allow the administrator of the wife now to come in and prosecute the suit. If not, the suit should not be allowed to proceed to judgment in favor of a party who has no right to recover, merely for the purpose of preserving the attachment, which he had no right to make.

A. W. Sawyer, for plaintiff.

I. Under the common lav/, the husband is entitled for his own benefit to all his wife’s chattels real, things in action, trusts, and every species of personal property, whether actually vested in her and reduced to possession, or contingent, or recoverable only by action; and if he survives her, and dies, the property goes to his heirs. Judge Probate v. Chamberlain. 3 N. H. 129; Wells v. Tyler, 25 N. H. 342.

The husband had done all he could to reduce the note in question to possession, he had brought his action upon it, insists on prosecuting it, declares on trial, that he has reduced it to possession; this is a sufficient reduction of the possession as for the purposes of this suit. The reduction into possession by a husband, of a wife’s chose in action, is prima facie evidence of a conversion to his use. Hand’s Estate, 5 Wheat, 138.

A husband who survives his wife is entitled to all her choses in action, whether reduced to possession in his life-time or not. Whitaker v. Whitaker, 6 John. 112.

II. The note in question was not embraced, nor intended to be embraced, in the marriage agreement. The marriage agreement embraced nothing of her property, save the note of $500, secured by mortgage. No statute of this State has changed the common law as to a promissory note given while single, and of which the wife was possessed at the time of her marriage, there being no marriage agreement embracing such note. The statute of 1860, chap. 2342, does not embrace property which she had acquired in any other way than by being inherited, bequeathed, given, or conveyed to her. This was a note given by defendant for money which she earned while single.

III. The money for which this note was given having been acquired by her, dum sola, not being embraced in any marriage contract or statute, the husband surviving the wife, it goes to him and his representatives; if the court hold otherwise, and say that the law of 1860 embraces this note, then the plaintiff relies upon the will, which is as follows:— "First, I give and bequeath and devise unto my husband, John Pettengill, the use, income, interest and profits of all my estate, for and during his natural life,” &c.

IV. To prevent circuity of action, the court will permit the action to be prosecuted to judgment in the name of this plaintiff, inasmuch as in any event, the proceeds go to this plaintiff, otherwise the lien created by the attachment may be lost — as a matter of fact, there are no debts — besides, her estate under the marriage contract, the note and mortgage of $500, while the legacies are only $260, and none payable until after the husband has used the estate during his life. The plaintiff will file such a bond as the court may direct, with ample sureties to pay all debts and the expense of administration.

Y. The plaintiff will move, if necessary that justice may be done, that the case be so far amended as to show that the note in question was for money loaned, which the wife had personally earned clum, sola, and that she died leaving no debts, the husband having paid the funeral expenses; that the excess of her estate under the marriage contract above the legacies, is $240.

^ YI. The plaintiff has such an interest in the note it being either his at common law, and no statute changing it, or the use, income,or interest of the note being the plaintiff’s under the will, he may legally and equitably prosecute the suit to final judgment. The court below can protect the interest of the administrator if he have any in the note.