Appeal of Franklin's Administrator

Mr. Justice Teunkey delivered the opinion of the court October 4th, 1886. The executors of the will of Anne Franklin, deceased, invested the trust money in United States Treasury Notes. These notes on May 1st, 1865, were delivered to Anne E. Henderson and Elizabeth B. Franklin, who were entitled to the interest and income, on the express terms that they should retain the interest, and that the survivor should return the notes to the executors as directed by the said will. Soon after, Miss Franklin died, and the notes passed into the hands of Mrs. Henderson. On the 5th of August, 1881, Mrs. Henderson and her husband, reciting the prior receipt and that the investment had been changed, acknowledged that they held “three thousand dollars, the interest on which is to be retained by said Anne during her life and the principal sum upon her decease is to be returned to the said executors, to be distributed according to the will of Anne Franklin, deceased.” That Anne E. Henderson knew the notes were trust property, under the said will, is clear. It was her duty as survivor, to return them to the executors, or hold .them so the}7' could be returned after her decease. Her acknowledgment, with her husband, that she had changed the investment and held the money to be returned to the executors, put no new face on.the transaction. It left her just as she stood immediately after the conversion of the notes. She had no right whatever to appropriate the notes to1 her own use, or the money she received for them. Because of her coverture her contract to [538] return the' notes was void, so was her promise to return the sum of three thousand dollars which she received for the notes; but the executor gave her no authority to dispose of the notes, or to use the proceeds. If she used the trust fund, or gave it away, or destroyed it, her act was a wrongful conversion. There is nothing in the case showing that she committed the tort by coercion of her husband'. The presumption of coercion does not arise unless it appear that he was present at the time' of the offence committed. In the absence of evidence that he was present, there is no presumption. Upon the facts found by the Auditor, Anne E. Henderson, with full knowledge of the trust, received the trust fund and'so disposed of it that it is impossible to trace it. The fund for distribution is affirnfatively shown to have been derived from another source. If in her lifetime she were liable in damages for the conversion of the fund, her estate is liable. Her .legatees may make the same defence which she could make, if living, and no other. Except where otherwise provided by statute, the husband is liable for the torts of the wife during coverture; if committed in his company and by his order he alone is liable; if not, they are jointly liable and the wife must be joined in the suit with her husband. And when the remedy for the tort is only damages by suit the. husband is liable with his wife: 2 Kent’s Com., *149. Husband and wife may be jointly guilty of the tortious conversion of a chattel. At common law the wife is liable to an action for her torts, and while living her husband may be joined and will be liable with her for the damages recovered; but if she dies then his liability terminates, while if the husband dies she may be sued alone the same as if she had been femme sole when the tort was com.mitted: Cord on Rights of Married Women, §§ 1147, 1148, 1149. A declaration in trover against husband and wife, stating that the defendants converted the property to their own use, was held sufficient, the objection having been made after verdict: Keyworth v. Hill and wife, 3 Barn. & Ald., 685. Although the point decided in that case related only to the pleading, the declaration was held good on the ground that the wife could be guilty of conversion by other means than the acquisition of property. It was not gainsaid that she was liable and responsible in case she was guilty of the conversion. When a tort is committed by the wife she is personally liable, unless her husband was both present and directed the doing of it at the time. His presence furnishes evidence, and raises a presumption of his direction, but it is not conclusive [539] and the truth may be established b}r competent evidence: Cassin v. Delany, 38 N. Y., 178. We are of opinion that the facts reveal a wrongful conversion of the trust fund by Mrs. Henderson, and that she was liable therefor in damages. Therefore the appellant is entitled to recover. Decree reversed, and it is now considered and decreed that the report of distribution made by the Auditor be and is confirmed, and that the money be paid to the parties entitled as shown by said report. Appellee, Clara A. Franklin, to pay costs of appeal. Record remitted for enforcement of this decree.