White v. Waite

The opinion of the court was delivered by Ross, J. The referee does not, in terms, find that the distri- . bution of the estate of Charles B. Colman was subsequent to the marriage of the plaintiffs. He finds that they were married September 5, 1868; that Charles B. Colman, the father of Mary A. White, deceased in 1867; and that after her marriage, Mary A. White received from her father’s estate $1,122.23, less the revenue tax. From these facts, we think that the distribution of Colman’s estate may fairly be inferred to have been made subsequently to the marriage of the plaintiffs. The counsel on both sides, in argument, have assumed that such was the fact. We therefore conclude that the distribution of the father’s estate was made during the coverture of the plaintiff wife. Hence, the money and other personal property received by her from that distribution, are within the operation and protection of the act of 1867, p. 949, Gen. Sts. While the right to a distributive share in her father’s estate became vested in the daughter immediately upon the father’s decease, and she became possessed of an undivided portion of the property of the estate, subject to the rights of the administrator to use a part of the same for the payment of the debts and expenses of administration, yet, the particular property did not become absolutely vested in her, until the decree of the probate court making distribution of the estate, became absolute. [508] Until distribution, she had no right as against the administrator, or other heirs, if such there were, to the specific personal property which she afterwards received from the estate. When the decree distributing the estate became absolute, she, in the language of the act, “ acquired ” the specific articles of personal property decreed to her, and the right to a personal action for the recovery of the sum of money ordered to be paid to her. The property thus distributed to and received by her during coverture, by force of the statute, was set apart to her sole and separate use. As such, the court of chancery would protect her in the enjoyment of it against both her husband and his creditors. It would not allow the husband to convert it to his use, against her interest and desire. She could allow him to use it, and perhaps give it to him in such a manner as to dispossess her of the right of retaking it. She could allow him to manage it for her, and to convert it into other property. He could act as her agent in all matters pertaining to its management and disposal. Porter v. Bank of Rutland, 19 Vt. 410; Caldwell, admr. v. Renfrew, 33 Vt. 213. The right to reduce the wife’s property to possession that comes to the husband by virtue of the marital relation, does not attach to property set apart to her sole and separate use. The words, “ sole and separate use,” would be divested of their entire force and meaning, if the husband were allowed to reduce such property to his possession. Hence, the question whether the plaintiff husband has reduced any of this property to his possession, does not legitimately arise in the case. If the question could be legitimately raised in regard to this property, the facts' reported fall short of showing a reduction of this property to the possession of the plaintiff husband. To reduce the wife’s property to his possession, the husband must not only take exclusive control of it, but must do some act evincing a clear intention to make the property his as against her and her rights. So long as his possession of the property is subordinate to her rights, it remains her property. This right is personal to the husband, and can be exercised by him alone. Neither his creditors, nor his heirs, or personal representatives, can exercise it for him. Barron v. Barron, 24 Vt. 375; Probate Court v. Niles, 32 Vt. 775; [509] Roberts, admr. v. Lund, 45 Vt. 82. The defendant is attempting to hold all of the property attached, as the property of the husband. The referee has found that the most of it, when attached by the defendant, was the property of the wife, and, as between the husband and wife, had always been treated and considered her property. Whatever he has done in purchasing, exchanging, or controlling it, he has done as her agent. We entertain no doubt, that if this suit was being prosecuted in equity, it would be the duty of that court, on the facts reported, to decree to the plaintiff wife payment from the defendant, for the property taken which belonged to her by distribution, purchase, or exchange. The only hesitation we have had in rendering judgment on the report for the plaintiffs to recover $68, the value of the wife’s property attached and sold by the defendant, has arisen from the fact that the suit is at law. The reported cases in this state, in which husband and wife have joined for the protection of the wife’s property against the husband’s creditors, have been in equity. In equity, the wife, by a next friend, can proceed against the husband even, to prevent him from converting to his use property appropriated to her sole and separate use. We do not say that a court of equity would under all circumstances, restrain him from converting such property to his use, but it clearly has that power. So, too, a court of equity can restrain the husband’s creditors, in a suit in favor of the husband and wife, from taking her property for the payment of the husband’s sole debts; or if her property has been taken and applied in payment of his debts, may decree that repayment of the value of the property taken, shall be made to her for her sole use. Ordinarily, the husband can control and appropriate to his use the avails of a judgment at law, recovered in favor of himself and wife. Whether courts at law have the power to order that a judgment in favor of the husband and wife for injury to or conversion of the wife’s separate property, shall be paid to and discharged by the wife, is not a question raised in this case, and no opinion is expressed thereon. So far as the defendant’s rights are concerned, it is a matter of indifference whether he pays for the wife’s property [510] which he has wrongfully taken, on a judgment at law., or in equity. His rights are protected whether he pay to the husband, at law, or to the wife, in equity. It is not for him to object to the right of the husband and wife to pursue him at law. The only ground for objection to the maintenance of this suit, is, that the wife’s rights may not be so fully protected as they might be in a suit in equity. The objection is one of policy rather than one of right. By rendering judgment in favor of the husband and wife for the conversion of the wife’s property, power is given to the husband, and he may divert her property from her sole and separate use to his own use. But he may do the same when she entrusts money to him to invest for her, or to purchase other property. Yet, the law allows him to act as her agent in the collection and investment of her money, and in the sale and purchase of her personal property. If he abuse his trust and divert her property to his use, a court of equity will grant her relief, by decreeing restitution from him or by following the property as trust property. If there were any controversy in this suit between the husband and wife as to which owned the property; or if he were attempting to convert it to his use against her interest and desire, there might be serious if not insurmountable difficulty in adjusting, at law, the respective rights o.f the plaintiffs, so as to protect the interests of the wife. So long as the wife is content to entrust the control and management of her separate property to her husband by joining him in a suit at law for its recovery, it is not for the court to say that she' shall not enjoy that right. It is no more against the policy of the law to allow her to exercise this right, than it is to allow her to employ him as her agent, to receive and manage her separate property. If he should attempt to convert the avails of the judgment to his own use, she is free to apply to the equity side of the court, to restrain him from so doing. We do not discover any valid objection to the maintenance of a suit at law by the husband and wife for the conversion of the wife’s property by the husband’s creditors. At the present time, when the wife’s right to hold separate property has been greatly enlarged, it would bo burdensome to her rights, to hold [511] that she could not maintain suits at law in such cases. The property taken might not be of sufficient value to enable her to bring a suit in equity for its recovery, in which case, there would be a practical denial of justice, if she is not allowed to invoke the aid of courts at law, in which the husband must join in prosecuting the suit. It is also generally more expensive to secure one’s rights in equity, than at law. The pro-forma judgment of the county court is reversed, and judgment rendered for the plaintiffs to recover $68, with interest from December 18, 1871, and costs.