Winter-cast and Others against Smith.
IN ERROR.
A legacy was left to a married woman, whose husband had deserted her,
and from whom she was subsequently divorced from the bonds of matrimony.
After the divorce she demanded payment of the legacy, which the executors
refused, on the ground that the husband alone was entitled to it, although
he had never claimed it, and it was uncertain whether he was dead or
living.
Held, that the wife was entitled to recover.
ERROR to the District Court for the City and County of
Philadelphia.
Margaret Wintercast the mother of Elizabeth Smith, the
plaintiff below, and defendant in error, by her last, will dated
May 1st, 1827, authorized and empowered her executors to sell
her real estate and divide the proceeds equally among her chil-
dren. Her daughter, Elizabeth, the plaintiff below, was mar-
ried in the year 1806 to Henry Smith, and had by him five
children. In the year 1819, he deserted his wife and family
and had not been heard of since. The testatrix died in the
year 1828. The defendants below, who were her executors,
settled their accounts in the register's office in September,
1829, when it appeared that the balance in their hands for dis-
tribution amounted to seven hundred and eleven dollars and
fifty-nine cents. In the year 1831, Elizabeth Smith petitioned
the Court of Common Pleas of the county of Philadelphia, for
a divorce from the bonds of matrimony, on the grounds of
adultery and desertion by Henry Smith, and on the 22d Octo-
ber, 1831, the court decreed a divorce according to the prayer
of the petition.
Elizabeth Smith claimed payment of the legacy in her own
right, and on the refusal of the executors to pay it, the present
suit was brought, which the defendants below resisted on the
ground that the husband was solely entitled to the legacy.
The cause was tried on the 30th of March, 1832, when a
verdict and judgment were given in favour of the plaintiff
197
177 SUPREME COURT [Philadelphia.
[Wintercast and others v. Smith.]
for the sum of one hundred and forty-two dollars and thirty-
two cents, being her share of the assets in the hands of the
executors : on which a writ of error M'as taken out by the de-
fendants below.
A bill of exceptions which was taken on the trial came up
with the record, and in this court the following errors were
specifically assigned :
1. That the court erred in charging the jury that the several
matters and proofs given in evidence (set forth in the bill of
exceptions) were insufficient to bar the plaintiif of her action,
and acquit the defendant thereof.
l~*17Kl *^' T na t * ne cour t below erred in charging the jury
J that the plaintiff in consequence of the divorce obtained
from her husband, Henry Smith, from the bonds of matrimony,
on the grounds of adultery and desertion, at a session of the
Court of Common Pleas for the city and county of Philadelphia,
on the 22d of October, 1831, was entitled to recover in the said
action, and to have a verdict in her favour for the sum of one
hundred and forty-two dollars and thirty-two cents notwith-
standing the sale of the real estate on the 25th of June, 1829,
in pursuance of the will of the testatrix, and that the said ex-
ecutors had received the money, the proceeds of the sale, before
the plaintiff had obtained the said divorce, and had on the 12th
of September, 1829, settled their account of the administration
of the said estate, in the register's office at Philadelphia.
After argument by Keemle for the plaintiffs in error, and
Armstrong for the defendant in error, the opinion of the court
was delivered by
KENNEDY, J. This case has been brought up by a writ of
error to the judges of the District Court of the city and county
of Philadelphia. It is an action on the case commenced there
by the defendant in error against the plaintiffs in error, to re-
cover from them one-fifth part of the moneys arising from a
sale of the real estate, late of Margaret Wintercast, made by the
plaintiffs in error as the executors of the last will of the said
Margaret, which she thereby had directed to be sold, and the
money arising therefrom to be divided equally among her five
children, of whom the defendant in error is one. The plaintiffs
in error sold the estate on the 25th day of June, 1829, and on
the 12th of September following settled their account in the
register's office, exhibiting a balance, after deducting expenses,
&c., of seven hundred and eleven dollars and fifty-nine cents
remaining in their hands to be divided equally among the five
legatees. The defendant in error was married in 1806 to Henry
Smith, who lived with her until 1819, when he left her, went
198
15, 1833.] OF PENNSYLVANIA. 178
[Winter-cast and others v. Smith.]
off and has not been heard of since. On the 22d of October,
1831, the Court of Common Pleas of the city and county of
Philadelphia, passed a decree of divorce in her favour, freeing
her from the bonds of matrimony, on the grounds of adultery
and desertion by her husband.
The only question made on the trial of the cause below was,
whether the plaintiff below, or he who had been her husband,
was entitled to receive the money. The court decided this
question in favour of the plaintiff below, and a verdict and
judgment were accordingly given for her. The decision of the
court below upon this question was excepted to by the plaintiffs
in error and is the only thing that has been assigned for error
here.
The counsel for the plaintiffs in error contended that the
money arising from the sale of the real estate of the testatrix
and given by her in her will to the defendant in error, as one
of her children, vested absolutely in the husband before he was
divorced from his wife ; and that without his authority they
would not be safe in paying the *money to her. The r*i7q-i
"ase of Griswald v. Pennimau, 2 Conn. 564, has been L
cited, and principally relied on, as an authority deciding the
question in favour of their position. The only difference be-
tween that case and the one under consideration is, that it was
a distributive share of an intestate's estate that was claimed
there, and here it is a share of a testator's estate given by her
will, that is claimed. I am not satisfied that any distinction
ought to be made between the two cases on this ground. In
Griswald v. Penniraan, the court decided that the administrators
of a husband who died in the lifetime of his wife were entitled
to the wife's distributive share of her father's personal estate
who died in the lifetime of the husband. They say, that such
distributive share vested absolutely in the husband immediately
upon the death of his wife's father : That he might have main-
tained a suit for it in his own name alone, had he lived, and
that ;hat being the case, it must therefore be considered as hav-
ing ve&ted in him absolutely, and upon his death as passing to
his personal representatives. Now I conceive that it does not
at all follow, that because a husband may maintain an action
exclusively in his own name for a chose in action, that he must
necessarily be vested with an absolute and unconditional right
to it. For there are many cases in which he may maintain an
action without joining his wife, for a cause with which he is in-
vested in right of his wife, and where it has accrued through
and by means of her during the coverture, in which the right
will most undoubtedly survive to her upon his dying without
having brought a suit, or having extinguished the right in any
199
179 SUPREME COURT [Philadelphia,
[Wintercast and others v. Smith.]
way. In the case of a trespass committed during the coverture
upon a freehold real estate, or estate of inheritance, which he
holds in right of his wife, he may support an action for it in his
own name alone. 1 Rolle Abr. 347, 1. 40, or in the name of
himself and. wife jointly. Ib. 348, 1. 18. And in case of his
death without having prosecuted such a suit to judgment, the
cause of action survives to his wife and she may maintain it.
Ib. 349, 1. 29, so in the case of Howell v. Maine, 3 Lev. 403,
it was held that the husband might support an action in his own
name alone, upon an obligation which had been given to his wife
dum sola. Yet all the authorities concur in saying that they
may join in bringing such an action. Indeed, in Feuner v. Flas-
ket, Moore, 422, it is said that they must join ; which is repeated
in 2 Wils. 423. And if the husband should die without having
recovered or received the amount of such obligation, the right
to sue on it, it is admitted in all the cases on this subject, would
survive to the wife if she be living at the time of his death.
If a bond be made to husband and wife jointly, during the
coverture, the husband may sustain a suit upon it in his own
name alone, or join his wife with him at his pleasure. Hilliard
and Wife v. Humbridge, Alleyn, 36 ; s. c. Styles, 9 ; Litt. Rep.
13. See also Aleberry . Walby, 1 Stra. 229. But if the hus-
band die without bringing a suit, the wife surviving, she will
r*18<VI succee d to the right of *action upon the bond by sur-
-1 vivorship. Nothing but some positive act upon the part
of the husband in his lifetime, showing his disagreement to her
right in the bond, will exclude the wife after his death; such,
for instance, as bringing a suit on it in his own name alone ; for
if he join her name, and die pending the suit, it will survive to
her. Coppen v. , 2 P. "Wms. 497. The propriety of the
husband and wife's joining as plaintiffs in an action, does not,
as I apprehend, depend solely upon the contract, out of which
the cause of action arises, having been made before or after the
marriage. For though they may perhaps join in all cases where
the contract was entered into with the wife dum sola, yet in
cases of contract after the marriage, wherever she is the meri-
torious cause and moving consideration of it, they may also join :
and the cause of action will survive to the wife upon his dying
in her lifetime without having done any act to exclude her. As
in the case of a promise made to the wife for the cure of a wound
or disease performed by her by the exercise of her skill during
the coverture. Shipston v. Booler, 1 Sid. 25; Fountain v.
Smith, 2 Sid. 128; Brashford v. Buckingham dux., Cro. Jac.
77 ; s. c. Ib. 205, and in this last case it is said expressly, that
such cause of action would survive to the wife. Rose and Wife
-. Bowler, 1 Hen. Bl. Rep. 114; Weller et al v. Baker, 2 Wils.
200
Feb. 15, 1833.] OF PENNSYLVANIA. 180
[Wintercast and others v. Smith.]
414. And in Lodge v. Hamilton, 2 Serg. & Rawle, 493, it was
ruled by this court, that a recognizance taken in the Orphans'
Court to the husband and wife to secure the payment of the
wife's share of the valuation money of a tract of land, of which
her father died seized in fee, survived to her upon the death of
her husband ; and that the money did not belong to his adminis-
trators. And the late Chief Justice Tilghman, who delivered the
opinion of the court, says, "The general rule is, that the choses
in action of the wife survive to her, unless the husband had re-
duced them into possession or assigned or released them during
the coverture. And the same rule prevails where the husband
and wife jointly become entitled to a chose in action during the
coverture."
The counsel in the case of Griswald v. Penniman, seems to
have considered the case of Carey v. Taylor, 1 Vern. 302, as
directly in point. In this, however, I think then' was a misap-
prehension of that case; for the husband there survived the wife,
and would have been entitled to all the wife's personal estate,
including her choses in action, as next of kin, under the statute
of distributions, if upon no other ground. See Squib v. Wyn,
1 P. Wms. 380; Cart v. Rees, Ib. 381,382; Humphreys v.
Bullen, 1 Atk. 458; Elliot v. Collier et ux., 1 Wils. 168;' s. c.
3 Atk. 526, and Mr. Butler's note (1) to Co. Lit. 351, a. The
question of survivorship could not have arisen. But the case
appears from Mr. Raithby's note to it, in which he has given an
extract from the decree itself, to have been decided in favour of
the husband's personal representatives exclusively on the ground
of his title to it growing out of the terms of a marriage settle-
ment which had been made.
The case of Shuttlesworth v. Noy, 8 Mass. 229, was also relied
on *there, and has been cited here, but the question did [-#101-1
not arise in that case and was not decided by the court. *-
The husband and wife were then still both living; and the court
only decided that the money due upon a note given payable to
the wife during the coverture might be attached by the creditors
of the husband; because, as they say, "a note made payable to
a feme covert is legally payable to the husband," to which is
superadded, what was certainly not necessary to or connected
with the decision of the case, that "after the husband's death, it
would go to his executor or administrator and not to the wife."
This point not arising in the cause, c-ould not have been argued,
and must be regarded as an obiter dictum thrown out without-
due deliberation; which is repudiated by the decision of that
same court and the doctrine and principles laid down by it in
Draper v. Jackson and Wife, in 16 Mass. 480. In this case it
was held, that a note and mortgage made to husband and wife,
201
181 SUPREME COURT [Philadelphia,
[Wintercast and others v. Smith.]
to secure the payment of the price of a tract of land belonging
to the wife, which they had sold and conveyed to the drawer of
the note, survived to the wife upon the husband's dying without
having done anything with either; and that the money did not
belong to his administrator. The subject appears to have re-
ceived a very full consideration; and a very elaborate opinion
was delivered by Mr. Justice Jackson, in w r hich he has referred
to and reviewed many of the ancient authorities relating to it.
To the authorities already referred to, which show that where
the wife is the meritorious or moving cause and consideration for
a promise, note, bond, or recognizance made to her during the
coverture, or to her and the husband jointly, that it will survive
to the wife unless the husband in his lifetime has done some act
to exclude her, may be added, Nash v. Nash, 2 Madd. 133 (Eug.
Ed.) but 411 (Amer. Ed.) where a father after the marriage of
his daughter drew a check in her favour upon his bankers for
ten thousand pounds ; the bankers gave her a promissory note
for the ten thousand pounds. Afterwards one thousand pounds,
part of the principal of the note, was paid to the husband, who
also received the interest as it became due upon the note up to
the time of his death. It was held upon his death, that his wife
who survived him was entitled to the note as a chose in action
which had survived to her. In Day v. Pasgrave, 2 Maule &
Selw. 396, note 6, where the plaintiff as administrator of his
wife, brought debt on a bond given to her during the coverture ;
and on demurrer to the declaration, it was objected, the action
should have been brought by the husband in his own right and
not as administrator, because the wife never had any sole right
of action in her. But the plaintiff had judgment on the ground
that the right to the bond would have survived to the wife if
she had outlived her husband. And in Philliskirk v. Pluckwell,
3 Maule & Selw. 396, the question was made, whether husband
and wife may sustain a suit upon a promissory note made to the
wife during the coverture? Ld. Ellenborough was of opinion
that they might, and says that "In Co. Lit. 120, a; 1 Roll.
l~*l91 *Abr. Baron & Femme, H. PI. 6 and 7, a difference is
-* taken between a thing that is not merely a chose in
action and one that is ; and therefore in the case of a bond made
to the wife, if the wife dieth the husband shall not have it with-
out taking administration, because that is merely a chose in
action ; so here the note is made to the wife ; and it imports a
consideration unless the contrary be shown." Mr. Justice Dam-
pier concurred in this opinion.
The cases of Lightbourn v. Holiday, 2 Eq. Abr. 1, pi. 5, and
Hodges v.Beverly, Bunb. 188, may now be considered as en-
tirely overruled ; where in the first, a promissory note given to
202
Feb. 15, 1833.J OF PENNSYLVANIA. 182
[Wintercast and others v. Smith.]
the wife during marriage for the payment of money, and in the
latter case, an accountable receipt given for money to her also
during the marriage, were held not to survive to the wives upon
the deaths of their respective husband's.
These late cases are also in accordance with what is said to be
the law in our most ancient books of authority. See Fitz. Abr.
tit. Brief, 19, where in an action of debt on a bond made to the
husband and wife, in which both had joined, it was objected,
that the action should have been brought by the husband alone ;
but Babbington, Chief Justice, said it might be brought in either
way. This proposition is laid down again and repeated in Bro.
Abr. tit. Baron and Feme, pi. 50 and 60. And in 1 Dauv. Abr.
715, this proposition is stated, that if an obligation is made to
husband and wife, the wife shall have it by survivorship; for
which is cited 43 Ed. 3, 10, and 4 Hen. 6, 6, and adds, " M. 6
Jac. B. C. adjudged upon demurrer. Tr. 10 Car. in Cane.
Scaccarii, between Spark and Fairemanuer, adjudged in a writ
of error." See same in Viu. Abr. tit. Baron & Femme (B. a.
pi. 1).
In Christ's Hospital v. Budgin & ux., when the husband had
lent out money in the names of himself and his wife upon mort-
gages and bonds, and died, leaving his wife surviving, it was
decreed that she was entitled to the money by survivorship,
unless so far as it might be wanted to pay the debts of the hus-
band. 2 Vern. 683.
I am also inclined to believe that the distributive portions or
shares of the personal estates of intestates ever have and must
still be looked upon as choses in action, until recovered, or re-
duced to actual possession by those entitled to receive them.
A portion due to an orphan in the hands of the chamberlain
of London, was decided to belong to the orphan who survived
her husband. Pheasant v. Pheasant, 1 Chan. Ca. 181 ; s. c.
2 Ventr. 341. But if the husband survive the wife he will be
entitled to it. Fouke v. Lewen, 1 Vern. 88. The statute of dis-
tributions has been likened to a will in its effect, and the por-
tions arising under it to legacies. In Brown v. Shore, 1 Show.
26, Lord Holt, C. J., in speaking of this act says, " it is the same
as if the party had made his will to this effect ; the common case
of a residuary legatee, who dies before probate, his executor
shall have administration, and not the next of kin to the testator ;
that proves this case. A right of action or chose in action will
go to executors." The question in the case was whether the
*act of distribution vested an interest immediately 5" r*iQ<r|
the distributees upon the death of the intestate, so that '
if they or any of them died before the distribution made, the
portions or shares of such dying should go to his or their respec-
203
183 SUPREME COUET [Philadelphia,
[Wintercast and others v. Smith.]
tive executors, or to the next of kin to the intestate in being at
the time of distribution made. It was ruled that the personal
estate of the intestate vested in his next of kin eo instanti that
he died. Considering the portions of the intestate's estate given
by the statute as vested legacies and choses in action that would
pass to the executors or administrators of such distributees as
might happen to die before they had received their respective
shares. Eyres, Justice, in the same case says, " the design of
the statute was to make a will for the intestate."
With respect to legacies, I think they have been almost uni-
formly regarded as choses in action ; and when given to a mar-
ried woman, will, unless received, released, or perhaps assigned
for a valuable consideration by the husband, survive to her upon
his dying before her. I am not aware of any case which con-
tradicts this, except an anonymous one in 2 Rolle's Rep. 124,
where it is stated, that a legacy of ten pounds was bequeathed
to a feme covert, to be paid eighteen months after the death of
the devisor ; during the eighteen months the wife died, and ad-
ministration was granted to her daughter. Montague, Justice,
said, the ten pounds did not belong to the daughter; that the
husband had an interest in it before the time of payment ac-
crued, and could have released it before it became payable. No
authority is cited for this dictum or decision if it may be so
called ; and the reason assigned for it, that the husband could
have released it in the lifetime of his wife before it became pay-
able, is certainly very inconclusive; because in all the cases
already referred to, where it has been held that the right and
the cause of action survived to the wife, the husband could have
released and extinguished the right.
In Nanney v. Martin, Avhere a legacy of three hundred pounds
and other moneys were given by the will to the wife before mar-
riage, and upon a bill filed by the husband and wife a decree
was made in their favour for the payment thereof when the
husband died ; it was held that the Avife was entitled to the
amount of the decree by survivorship. 1 Chan. Rep. 124 ; s. o.
1 Chan. Ca. 27. In Garforth v. Bradley, 2 Ves. 676-7. The
wife during coverture by the will of her mother became entitled
to a legacy, and also to a part of the residue of the testatrix's
estate which had been bequeathed to another legatee "who died
in the lifetime of the testratrix. The wife survived her husband
and died : And the question was, whether these bequests be-
longed to the representatives of the husband or of the wife.
There had also been a marriage settlement. Lord Hardwicke
said, " the question would depend entirely on the construction
of it, and the covenants contained therein, for as to the general
question it would certainly survive to the wife, if nothing by
204
Feb. 15, 1833.] OF PENNSYLVANIA. 184
[Wintercast and others v. Smith.]
way of contract attended *the case; for wherever a
chose in action comes to the wife, whether vesting be-
fore or after the marriage, it will survive to the wife ; with this
distinction, that as to those which come during the coverture,
the husband may for them bring the action in his own name,
may disagree to the interest of the wife; and that recovering in
his own name is equal to reducing into possession." In the case
of Blount v. Bestland, 5 Ves. 515, a legacy of six hundred
pounds was bequeathed to the wife during marriage, and after
it became payable the husband agreed with the executrix that
she need not call in certain moneys due upon a mortgage with
which the executrix said she intended to pay the legacy, but
that it might remain, upon the interest being paid to him, until
he should want the principal, and he accordingly received upon
it afterwards two half years' interest, disposed of the principal
by his will and then died. The Lord Chancellor declared the
legacy to be in effect a chose in action which could only have
been obtained by suit, to which the wife must have been made a
party and that it survived to her.
, L\ Brotherow v. Hood, Comyn's Rep. 725, a legacy of sixty
pounds bequeathed to the wife, who married, and the husband
dying before it became payable, was held to be a chose in action,
which survived to the wife.
In Wildman v. Wildmau, where a married woman became
entitled as next of kin of an intestate to the sum of thirteen
thousand three hundred and thirty-three pounds six shillings
and eight pence, three per cent consolidated annuities, which
was transferred by the administrator into her name to her sole
and separate use ; and tbe husband dying without having exer-
cised any act of control or ownership over it, it was adjudged
that it survived to the wife. 9 Ves. 174.
The right of the wife to receive legacies by survivorship,
where they had been given to her during marriage, has been
held not to be affected or barred by the husband's becoming
bankrupt or insolvent, and the consequent assignment of all his
property for the benefit of his creditors, where he dies leaving
his wife surviving, before the assignees shall have received pay-
ment, although they may exhibit a bill to compel it. See
Pierce v. Thornley, 2 Sim. 167, and Gayner v. Wilkinson, Dick.
491.
That the legacy in question is a chose in action, has in effect