Fourth Ecclesiastical Society in Middletown v. Mather

Church, J. The appellants object to the allowance, by the commissioners, of the claim of Samuel Mather, on the ground, that it was barred by the statute of limitations, du* ring the life-time of the deceased. The objection is founded upon the antenuptial agreement made between the late Dr. Thomas Miner and his then intended wife, Phebe Mather, and her trustee, Thomas Mather. In that agreement Dr. Miner', who, in contemplation of marriage, was about to receive a certain amount of property from the wife, covenanted, among other things, that he would pay to the trustee two thirds of 6595 dollars, 84 cents, within six months from the death of his wife, should he survive her. The marriage was consummated, and soon after, the wife died ; and by her last will and testament, she bequeathed to her husband the use and improvement of all her estate, during his life, subject to the payment of a legacy of 500 dollars to her nephew. The argument of the appellants is, that Dr. Miners the husband, by his agreement, was bound to pay Thomas Mather, the trustee, the principal of all the property received by him at his marriage, (reserving the one third thereof,) within six months from the death of his wife; that the covenant on his part was broken, upon his failure to do this; and that the statute of limitations began to run upon the claim of the trustee from that time, and now has barred it. If there had been no will of Phebe Miner, or if no present interest had been bequeathed by it to Dr. Miner, the husband, so that he was not, by virtue of it, vested with a right to the whole estate, during his life, there would have been weight in this argument. But, by the provisions of the will, Dr. Miner, instead of being under his obligation to deliver up two thirds of his wife’s [598] property to her appointees or legatees, as provided by the tripartite covenant, within six months from her death, was, by virtue of her will, entitled to retain and use the whole of j( during his life ; and it was not until after his death, that Samuel Mather became entitled to the estate, as legatee. »jqle rigfrts and duties of Thomas Mather, as trustee under the agreement, now ceased and his only remaining right was, to make demand upon Dr. Miner's estate, in behalf of the legatee. And no statute of limitations, until after this event, could affect the claim. There is no doubt, therefore, but the claimant, Samuel Mather, has a right to receive from the estate of Dr. Miner a sum of considerable amount. As a part of the amount claimed, the commissioners have disallowed the money which was received by Dr. Miner upon the James Mather note, being 1100 dollars. This note was given during coverture, by James Mather to Phebe Miner, the wife, in consideration of an exchange of lands made between them, with the husband’s assent. It is quite unnecessary for us now to examine the state of the common law regarding the right of the husband to choses in action accruing to the wife during coverture ; and whether the husband may sue alone, or must or may join his wife as plaintiff, in an action to recover them ; because our own courts, by amniform course of decisions, founded, as they believed, upon the principles of the common law, have holden, that such a chose in action vests absolutely in the husband; and such is the settled law of this state. Fitch v. Ayer, 2 Conn. R. 143—5. Griswold v. Penniman, Id. 564. Cornwall v. Hoyt, 7 Conn. R. 426. Beach v. Norton, 8 Conn. R. 71. Whittlesey v. McMahon, 10 Conn. R. 137. Morgan v. The Thames Bank, 14 Conn. R. 99. 1 Swift's Dig. 98. Reeve’s Dom. Rel. 60. The note of James Mather, when it was executed, became the property of Dr. Miner. But, it is claimed, notwithstanding, that as this note was found, upon the death of the wife, in her drawer, and thus in her possession, and was inventoried by Dr. Miner as a part of her estate, it must now be considered and treated as having become her property, by gift from her husband ; and thus Dr. Miner, the husband, became responsible for its amount to her residuary legatee, Samuel Mather. Aside from very [599] strong opposing evidence, furnished by the fact, that the hus- , , , . band treated this note as bis own, and actually received its avails, in his settlement with James Mather ; we think, that no contract or agreement between Dr. Miner and his wife ⅛ , could be made, which, in legal effect, would transfer the property or interest in the note in question to the wife, by way of gift or sale. In the case of Dibble v. Hutton, 1 Day 221. and which has never been overruled in this state, it was adjudged, unanimously, by the supreme court of errors, then consisting of the governor, lieutenant-governor and council, that an agreement between husband and wife was void, and could not be enforced, even in equity. Indeed, that was a case in which the wife claimed, that her husband, for a valuable consideration, had transferred notes to her, as her own estate, and which she had kept in her drawer, as her own, until his death, and therefore cannot be distinguished from the claim of Samuel Mather here. That case was determined upon the well known principles of the common law. Co. Litt. 112. 1 Bla. Com. 442. And the court there seemed to fear, that the innovations, which courts of equity in England were making upon the sacred unity of the persons of husband and wife, might, as manners should lead the law, and law the manners, invade our own jurisprudence ; and against such an event, they intended to protect us. If more loose or liberal views of the nature and legal effect of the marriage relation, have been entertained, in later times, either by the legislature or the public ; until they shall be made to bear upon the courts, by some definite legislative act, we must abide by the rules of the common law, which were, without doubt, recognized by all, as long ago as the time of the transaction in question. We are satisfied, therefore, that the commissioners properly rejected this part of the claim presented, and as properly allowed the residue : and we advise that the report be accepted and established. It was suggested, on the argument, that because the credit- or, in this case, did not appeal, he could not, before the superior court, recover a greater sum than was allowed by the commissioners, even if he was legally entitled to the rejected claim of 1100 dollars. Although an opinion from us, upon this question, is not necessary now ; yet, as it is a question of practice, growing out of the recent statute giving jurisdiction [600] to the superior coux-t in cases of this nature, we shall depart from our usual habit and decide it. We think, by the appeal, the whole claim exhibited to the commissioners, but without additions to it, was open for examination and allowance ; and that the report of the commissioners was entirely superseded» by the appeal, as in the cases of ordinary appeals from one court of common law to another. A different construction of the statute would throw nearly all the hazard of a second trial upon the appellee, and the only question which would remain for him to try, would be, his demand having been in part rejected, whether it should be still further reduced? We think, this was not the intention of the legislature, but rather, that the whole claim presented, might be examined and determined, qn the appeal, as if tried de novo. Such was the course taken, and without objection, on the trial of the case of Hammond v. Gilmore’s admr. 14 Conn. R. 480., and, as we believe, in other cases. In this opinion the other Judges concurred. Report of commissioners established.