Walker's Administrator v. Walker

Soott, Judge, delivered the opinion of the court. As to that portion of the personal property involved in this controversy, which consists of money, slaves, horses, jacks, jennies, cattle, &c., there is little room- to doubt the right of the defendant, both on the merits and on technical grounds. This is an action to recover damages for taking or withhold [375] ing personal property. The plaintiff asserts a legal title to the property sued for. The evidencfe of that title is an alleged gift of the husband. Now nothing is clearer at law than that the wife can not be the recipiént "of a gift from the husband so as to vest in her a legal title to the subject matter of the gift. Their unity prevents it. The personal property of the wife at law belonging to the husband', so soon as a gift is made to the wife the gift becomes the property of the husband. (Faulkner v. Faulkner’s Ex’rs. 3 Leigh, 255 ; Clancy on Rights, 251; 1 Bright on Husband and Wife, 29, 33.) Courts, of equity, however, where the intention of the husband is plain that his wife should have to her separate use a portion of his estate, and when the rights of creditors are not in the way, will raise in him a trust when no third person is interposed as trustee, and will compel him, for the benefit of his wife, to execute the trust with which the property may have been clothed. But this trust can not be enforced in an action as setting a legal title to the property designed for the separate use of the wife and claiming damages for its conversion. The gift, or more properly trust, can only be carried into effect through the instrumentality of a petition in the nature of a bill in equity setting forth the facts on which reliance is placed to show that a trust for the separate use of the wife was created, and praying an enforcement of its provisions. But in all such cases, as against the husband, the authorities are united that the evidence of the trust must be clear and unequivocal. (Clancy, 260 ; Walter v. Hudge, 2 Swanston, 92.) As to the evidence produced on the trial in this cause we do not regard it by any means as sufficient to raise in the husband a trust for the benefit of his wife. The kindness and indulgence of the husband to his wife during her life should not be perverted to his prejudice after her death. His conduct in relation to the estate he derived from his wife is not inconsistent with the idea that he regarded himself as the owner of it. Coming into the possession of the property in the way he did, a kind disposition to his wife would naturally lead him to indulge her in the manner she was [376] indulged, when he discovered such was her pleasure. But it would seem that the declarations of the. wife herself in relation to this matter, if we are to credit the evidence of them, would satisfy us that she did not contemplate that her control of the property should extend beyond the period of her life. As to the point that the property, other than the choses in action, never was reduced into possession during coverture, we are of the opinion that it is unsustained by the law arising from the facts of the case. In contemplation of law property is reduced into possession when it is in such a state that the husband can lawfully take it into his hands, if he will. It is not necessary that he should have actually taken it into his custody. If he has a right to do so at his will, it is enough. When no suit at law or equity is necessary to obtain possession of personal property, and the husband may, if he will, take actual possession of it, but fails or neglects to do so, the property is not the less reduced into his possession. The objection that the property was not reduced in possession must rest either in the idea that it was in the possession of the wife, or that it was held by the husband as administrator. Both of these grounds are untenable. If the property was in the possession of the wife, then the possession of the wife was the possession of the husband. The facts and the law applicable to them do not warrant the assertion that the property at the death of the wife was held by the husband in the capacity of administrator. It had been in the possession of the husband as administrator His wife was the legatee of it. The county court had authority to order the payment of legacies. An order was made that this legacy be retained by the husband and wife, and a final settlement of the administration was made, and a declaration in writing by the defendant and his wife acknowledging the receipt of the amount ordered to be retained was filed among the papers relating to the administration. If circumstances like these are not sufficient to show that property held by one as administrator ceased to be held as such, and was regarded as property held [377] in his own right, it is not easy to ;see how a change of the capacity in which property may he held by the same individual can be effected. (State, to the use, &c., v. Hearst, adm’r, 12 Mo. 365.) As to the dioses in action mentioned in the petition, we are not prepared to say that they are the property of the husband. If any of them were payable to the wife of the defendant, or even given for money belonging to the estate of which the wife was legatee, and made payable to the defendant as administrator de bonis non, the order of the probate court directing such bonds and notes to be retained by the defendant and his wife, was not such a reduction into possession by the husband as is required by the law in order to give the legal right to the husband. If they were afterwards paid during the coverture, or. if they were novated by taking a new security in his own name during the wife’s life, the case would be different. (2 Kent, 137 ; Picket v. Everett, 11 Mo. 568.) The cases of Leaky v. Maupin, 10 Mo. 362, and Wood v. Simmons, 20 Mo. 363, show the difference between our law and that of England on this subject. They render it unnecessary at this time to go into an investigation of this question. As there was some evidence that a bond for the wife’s money was taken by the defendant as administrator de bonis non, and as it did not appear but that such bond was still unpaid, and as the instruction given by the court had the effect to exclude such evidence from the consideration of the jury, the judgment will be reversed in "order that it may be ascertained whether there were any dioses in action to which the wife was entitled and which were not reduced into possession by the husband at the time of her death. Judgment reversed and cause remanded; Judge Leonard absent.