Stockett v. Bird's Adm'r

Goldsborougii, J., delivered the opinion of this court. This is an appeal upon the original papers and proceedings, under the provisions of thé 25th section of the 5th Article of the Code, from an order of the Circuit court for Anne Arundel county, refusing an injunction, upon the petition of the appellant, filed in a case instituted by him, as administrator of Ellen Bird, against the appellee, as administrator of Jacob W. Bird, Sen., who was the husband of the appellant’s intestate. The principal purpose of the original bill was, to discover and obtain an account of the personal estate of Ellen Bird, including certain choses in action, claimed by the appellant as her administrator, and which it charges the appellee to have received amongst and with, the personal estate and effects of his intestate. The appellee by his answer- admits, that he [488] found among the private papers and effects of his intestate, and of Ellen Bird, and now has in his possession, certain notes and obligations made to her, the dates, amounts, and makers of which, appear by the exhibits filed with the appellee’s answer, and that, as administrator, he claims them as part of the per-,, sonal estate of his intestate. These choses in action appear to have been given to Ellen Bird during her coverture, and were not reduced into possession, nor judgments obtained on them, by her husband, in his lifetime. The averments of the petition for the injunction, are substantially supported by the responsive admissions of the answer and exhibits; and the question is, whether the appellant has disclosed such a case as to be entitled to a writ of injunction, as prayed? In our opinion no distinction can be taken in this case, between the choses in action which accrued to the wife before, and' those which accrued to her after, the adoption of the Coder It is clear that, under the Act of 1798, ch. 101, sub-ch.- 5,-sec. 8, the choses in action of a feme covert dying intestate, devolve upon her representatives, and that administration may be granted accordingly, unless the husband in his lifetime, shall' have reduced them into possession, or have recovered judgment upon them. In the argument of the case it was contended, that under the 2nd section of Article 45, of the Code, the choses in action in- question, vested absolutely in Jacob W. Bird, the appellee’s intestate, he having survived his wife. This construction of that provision entirely defeats the operation of the portion of the Act of 1798 referred to, and re-enacted in the 32nd section of Article 93. This view of these statutory provisions is erroneous. It is the duty of the court to construe these apparently repugnant provisions so as to give them effect, and by applying a familiar rule of construction in such cases, we think there can be no difficulty in reaching that result. The provision-contained in the 2nd section of Article 45, is general in [489] its terms, and by it, the personal property of the' wife dying intestate, is made to vest in the husband absolutely, yet, as the Legislature did, by the 32nd section of Article 93, provide for a case of a husband surviving his wife, she leaving choses in action, and these not reduced into possession, or judgments obtained on them by the husband/such legislativé Act creates an exception, and the two provisions should be read together and construed in that relation. So considered, they must be construed upon the rule, “that when a general intention is expressed in a statute, and the Act also expresses a particular intention, incompatible With the gen,ei'al intention, the particular intention is to be considered in the nature of an exception.” Dwarris on, Statutes, 765. Before the passage of the Code, the choses in question would have devolved upon the wife’s representative, and since its passage, the construction we have given to the Articles mentioned, leads to the same result. (Decided July 9th, 1862.) We are of opinion, that the appellant'has, by his petition, taken in connection with tbh answer and exhibits, presented a case sufficient to justify the issue of an injunction as prayed, and that the Circuit court erred in refusing to grant it. The order of refusal m.ust, therefore, be reversed; and this court will pass ail order that an injunction issue as prayed. Order reversed and injunction granted. Bartou, J. Although I did not sit at the argument of this case, Í have had an opportunity of uniting with my brothers in its examination, and fully concur in the foregoing opinion.