Short v. Moore

The opinion of the Court was delivered by Redeield, J. In this case, the plaintifi claims by this process to hold the interest of the wife, in her ancestor’s estate, before decree of distribution, upon the husband’s debt. The statute in this state has removed all difficulty, in sustaining this process against executors or administrators, in all cases where the right of the principal debtor is such, that the creditor is entitled to attach in any form. In this case we think no such right exists in the husband. 1. There has been no decree of distribution, which is indispensable to any right of action whatever, as against the administrator. There may have been advances to the heir, or she may be otherwise indebted to the estate, and until the decree of distribution, the extent of her right is not ascer [451] tained, which is the exclusive right of the probate court to do. 2. The right of the husband to this share, even after the decree of distribution, is only conditional. No specific money passes by the decree. It is at most, a mere chose in action, and, as such, belongs to the wife until the husband reduce it to possession. Choses in action, accruing to the wife during coverture, where the consideration moves from the husband, vest absolutely in the husband, the wife being-considered a mere servant. But where she is the meritorious cause of action, — either by her personal services, or by inheritance or bequest, — she may be joined with the husband in a suit to recover the amount due, and, if so joined, the right of survivorship exists, in case of the determination of the coverture before the actual recovery of the same. It is said in many of the cases, that the mere election, by the husband, to treat choses in action, accruing to the wife during coverture, as his property, either by suing in his own name, which he may do, or by assigning the same, will divest the right of the wife. This would seem to be the present acknowledged rule of the common law. But in chancery such choses in action are treated as the separate property of the wife. That court will, on application, interfere to prevent the husband from squandering such property, and compel him to make a suitable provision for the wife, or else appoint a receiver for her benefit. And it would be unreasonable to permit the creditors of the husband, to reach such property. In Parks & Co. v. Cushman, 9 Vt. R. 320, this point was decided, and as we now think, upon sufficient grounds. Judgment affirmed.