Hill v. Royce

The opinion of the court was delivered by Redfield, J. We think there was no right of action in the plaintiffs at the time the suit was brought. Whatever will destroy absolutely the wife’s right of survivqrship will preclude her being joined in the action to recover her dioses in action; — as if there be a new security given to the husband aloné, or-any other contract made with the husband, by which the former contract is merged. It is said in the elementary books, too, that, if the husband assign the wife’s chose in action for a valuable consideration, this will destroy her right of survivorship. 2 Kent 136. In the case of Schuyler v. Hoyle, 5 Johns. Ch. R. 196, — which is a very well considered case, and in chancery, where the rights of the wife are viewed quite as favorably as at law, — it is said, “ that, if the husband appoint an attorney to receive the wife’s money, due upon her chose, and he receive the money,” or if the husband assign [193] the wife’s chose absolutely, — which has since been questioned, — or if he recover it by a suit at law in his own name, — which he could not ordinarily do, unless by consent of the debtor, — or if he release the debt, the right of survivorship in the wife is gone. But, without going much into all these propositions, it is well settled, I think, that, if the husband appoint an attorney, who collects the money upon the wife’s chose, her right of survivorship is gone, and she cannot join in a suit to recover the money from the attorney. The effect of the husband’s assigning, or mortgaging, her chose is more questionable, in regard to the wife’s right of sur-vivorship before the money is actually received. But the former proposition disposes of this case. The money in the defendant’s hands was the money of the husband, and he alone can sue for it. 1 Chit. PI. 19. Judgment affirmed.