Griswold v. Penniman

Swift, Ch. ,T. The husband, by marriage, acquires a right to the use of the real estate of his wife, during her life ; and if they have a child born alive, then, if he survives, during his life, as tenant by the curtesey. lie acquires an absolute right to her chattels real, and may dispose of them. If he docs-not dispose of them, and survives his wife, they survive to him : but if she outlives her husband, they survive to iler. He acquires an absolute property in her chattels personal in possession ; but as to her chos’s in action, he. may maintain a Suit jointly with her to recover them : and [566] if lie reduces tlicm to possession, during coverture, they become his ; otherwise, they survive to the wife, if she outlives him, or to her administrator, if she does not. As to the property of the wife accruing during coverture, the same rule is applicable, excepting in regard to chases in action. These vest absolutely in the husband, on the principle that husband and wife are but one in law, and her existence, in legal consideration, is merged in his. He may, in such cases, bring a suit in his own name, without joining his wife. This clearly proves, that the chose in action vests in him absolutely $ for if the right was in the wife, she must necessarily join in the suit. Where a bond or note is given to the wife, the husband can maintain an action in his own name. Barlow v. Bishop, 1 East 432. Aleyn 36. The consequence, then, is, that if the husband die before the wife, such choses in action shall go to his executor or administrator, and they do not survive to the wife: for where the property has been absolutely vested, there can be no survivorship. It is true, in certain cases, where claims originate during coverture, the husband may sue in his own name, or may join with the wife, as for rents issuing out of her real estate, or where she is the meritorious cause of action: and then, if the husband die while the suit is pending, or after judgment, and before it is satisfied, the interest in the causes of action will survive to her, and not to the executor of her husband, though if he had sued alone, she w'ould-have had no interest. 1 Chitt. Plead. 19. 20. But this is so far from proving, that if no suit had been brought, the chose in action would have survived to the wife,it proves directly the contrary. For in this case, the jbining of the wife in the suit, is the ground of the survivorship. It is agreeing to, and recognizing her interest, by the husband ; and may be considered in the nature of a granito her; and for this reason, the suit, or judgment, may survive to her. But where no act is done by the husband ; where no suit is brought, or judgment rendered, in favour of both; his separate, absolute interest continues, and can never survive to the wife. If. is true, that a contrary doctrine is laid down by Lord Hardwicke, in Garforth v. Bradley, 2 Ves. 676. on the authority of which, the case was decided at the circuit. He says, that a chose in action coming to the wife during cov-erture, unless the husband reduce it to possession, will sur567 rive to the wife ; but agrees, that the husband may bring an action in his own name. This opinion is contradictory to the w hole current of authorities; and the concession that the husband may sue in his own name, proves, that the property absolutely vested in him, so that it could not survive, without some act done by him. If the estate left by the father of Mrs. Penniman, was chattels personal in possession, then they vested, at the time of his death, in her husband j fora distributary share of chattels j>ersonal, in possession, is not a chose in action ; the right does not depend on the distribution, but originates by the statute, at the time of the death of the intestate. If he left debts, which it was the duty of his administrator to col-led, these would be chases in action, which, by the common law, vested in the husband, on the death of her father. It has been said, that a different rule has been adopted, in equity : but this is a mistake. Courts of equity, when husbands are obliged to resort to them, to obtain possession of the property of their wives, have required that they should make reasonable provision for them, as when they apply to obtain legacies : but with respect to dioses in action accruing during coverture, in right of the wife, where the husband can sue in his own name, without joining the wife, there has been no rule adopted in chancery, different from law'. The other Judges were of the same opinion. New trial to be granted.