Roberts v. Messinger

[308] Opinion, Me. Justice Steeeett : About six years ago, Robert Griffith died, intestate, leaving to survive him a widow, and three daughters, then and still minors, who sue, by their step-father and next friend, to recover damages suffered by the alleged trespass of the defendants. They claimed and offered to prove that the only property of any kind owned by their father, at the time of his decease, was personal property, the subject of said trespass, consisting of a few common articles of household furniture, beds, bedding and kitchen utensils, worth in all less than $300. Evidence was introduced tending to prove that, a day or two after Griffith’s death, his widow gave all said personal property to the three daughters, who thereafter claimed the same as their own, and notified the defendants, before they seized and sold the same, that it belonged to them, and not to their mother or step-father. In addition to that, a distinct offer was made to prove the facts recited in the second specification of error, namely, that the property taken by the defendants was all the property of which Robert Griffith died possessed; that its value was less than $300; and that by agreement between his widow and the daughters, who now sue by prochein ami, her interest therein was transferred to them; to be followed by a motion to amend the record by striking out the name of James Roberts and Mary, his wife, in right of said wife. As stated in the bill of exceptions, this offer was made for the purpose of showing that no creditors of the decedent were interested in the property ; that the assignment by the widow to' the daughters, made a day or two after their father’s death, was for the purpose of investing them with an absolute title to the property, etc. That offer was rejected, and judgment of nonsuit was entered. The rejection of that offer, and the refusal of the court to take off the nonsuit, are the only matters assigned for error. The proposed evidence was neither irrelevant nor incompetent. It was of the same general character as that which was then before the jury, and we think it should have been received; and, in view of the evidence tending to show that any interest the widow might have had in the property which was the subject of the trespass was given to the children, the amendment should have been allowed. The ground on which the learned judge appears to have acted [309] in rejecting the offer, refusing the amendment, and entering the nonsuit, was that the minor children were in no sense in the actual possession of the property, nor were they the owners of the property, nor did they then have such an interest therein as would carry with it the constructive possession thereof. In that, we think, he was mistaken. The evidence that was received, as well as that embraced in the rejected offer, appears to have heen sufficient to have warranted the jury in finding that they had at least such an inchoate interest as entitled them to maintain trespass against mere strangers, like'the defendants. The act of April 14, 1851, authorizing the widow or the minor children of any decedent to retain either real or personal property to the value of $300, declares “ the same shall not be sold, but suffered to remain for the use of the widow and family,” etc. In this case there was no administration on the estate of the intestate, nor does it appear that there was anything for an administrator to do, except to have the property, worth in all less than $300, regularly appraised and set apart to the widow. That, of course, was not done; but the widow, claiming the right under the act to retain the property, gave the same to the children, as the evidence tended to show. Her right to do so cannot be questioned by any one except a duly-appointed administrator of the estate of her husband, or creditors of herself at the time the property was disposed of as alleged in this case. It is not pretended that either of the defendants was then a creditor of the widow, and hence no such question can be raised by them. Where no letters are taken out, and the widow retains articles for household use worth clearly less than $300, her possession is coupled with such a qualified ownership as will entitle her to maintain an action against a mere intruder: Cunningham v. Ritter, 4 Kulp 381. If Mrs. Griffith, a few days after her husband’s decease, gave the property in question to the three daughters, as she had an undoubted right to do, they thereby became invested with the same qualified ownership, and all the rights incident thereto. While it is true that administration is the legally-appointed channel through which an absolute title to personal property of an intestate is acquired, it is equally true that the property of such intestate passes at his death to those legally entitled to the succession, subject to the claims of creditors and the laws [310] in force for administering it; but, if there be no debts to pay and no distribution needed, administration is not indispensable to that dominion over the property which is necessary to maintain trespass, trover, or an action of account render: McLean v. Wade, 53 Pa. 146, 150. It follows from what has been said that the learned president of the Common Pleas erred in entering the judgment of nonsuit, and in refusing to take it off, and also in overruling plaintiffs’ offer covered by the second specification. Both specifications of error are sustained. Judgment reversed, and a procedendo awarded.