Atherton v. McQuesten

Bellows, J. Assuming that the transfer by Samuel McQuesten and George McQuesten to the wife of Samuel McQuesten, of the stock in controversy, was valid, the question is, whether upon her death her husband had any interest in the stock, or whether it went to her heirs. The transfer, it seems, was July 5, 1860, and the right of the husband in respect to the stock was not affected by any statute of this State then in force. The law of July 4, 1860, Pamphlet Laws, ch. 2342, was to take effect on the first day of August of that year; and it provides that every married woman shall hold to her own use, free from the interference or control of her husband, all property inherited by, bequeathed, given, or conveyed to her, if not occasioned by payment or pledge of the property of the husband. It is urged by the plaintiff’s counsel that this law took effect upon this stock upon the ground that the husband acquired no vested, interest by the transfer. .To determine this question it bceomes necessary to consider what interest the husband had, at common law, in the choses in action of his wife. At common law marriage was regarded as an absolute gift to the husband of the personal chattels of the wife in possession, but her choses in action did not vest absolutely in him, though he had the marital right to make them his»by reducing them into possession. If he did not choose to do so, they remained the property of the wife, and the husband had no interest that could be reached by his creditors. Marston v. Carter, 12 N. H. 159; Wheeler v. Moore & Tr., 13 N. H. 478; Coffin v. Morrill, 22 N. H. 359; and on the death of the husband, living the wife, they survived to her. If, on the other hand, the husband survived the wife he became entitled absolutely to her choses in action, although not reduced to possession, and was also entitled to administration on her 'estate, and to recover such choses in action to his own use, subject only to the payment of her debts. If administration was taken by another and such choses in action recovered by him, he would hold them, after payment of the wife’s debts, in trust for the husband or his representatives. Squib v. Wyn, 1 P. Wms. 381; Elliott v. Collier, 3 Atk. 526; Whittaker [211] v. Whittaker, 6 Johns. 117; and it is clearly settled by these and numerous other authorities, that, to entitle the husband to the beneficial use of such choses in action, it is not necessary t* iit he take administration. Such is the doctrine of Weeks v. Jewett & al., 45 N. H. 540. If the husband dies before he administers, the right to administer and to the property goes to his heirs. Judge of Probate v. Chamberlain, 3 N. H. 129; Weeks v. Jewett & al., before cited. It appears, then, that the interest of the husband in his -wife’s choses yn action is not absolute, so' as to vest the title in him at once, and subject the property to survivors for his debts; but it is a qualified interest, depending upon his election to reduce them to possession. At the same time it cannot be said that he has no interest, although an absolute title has not vested in him, but it stands much like many other cases where the interests are contingent, as in one class of remainders, reversions, gifts on condition which the donee may or may not accept, inchoate rights of dower and homestead and the like. ' In such cases there is an interest which the law will protect and which is the subject of grant, assignment and release; and no statute would be construed to affect such rights retrospectively; even where the right to pass retrospective laws existed,- unless the legislative intention to do so was clearly expressed. ¿ In respect to the wife’s choses in action the husband must, at common law, join in a suit to recover them ; he alone can release, assign or discharge them; and over them the wife, without the assent of the husband, has no such power. Under such circumstances we think that the statute of July 4, 1860, providing that married women shall hold to their own use all property intrusted by, bequeathed, given or conveyed to them, cannot be construed to apply to conveyances made before the statute took effect, and under which the husband had previously acquired the rights which have been stated. In that statute there is nothing that indicates any purpose to apply its provisions to past transactions ; but, on the contrary, everything is consistent with a purpose to apply it alone to gifts, conveyances, &c., to be made after the law took effect; and therefore upon well settled principles in this State it is to be construed as applicable only to transactions entered into after the law went into operation. Rich v. Flanders, 39 N. H. 304. The rule of construction there recognized is not limited to cases whore a vested interest might be affected, but is applied as well to cases touching merely the remedy. It is a rule of construction applied to statutes, and is, in substance, that the legislature will not be presumed to have intended that a statute shall have a retrospective action unless that intention is very clearly expressed ; (p. 310 ;) and the ground upon which an interested witness in a cause pending when the statute was passed, was held to be competent, was, that the intention to apply the law to pending suits was clearly expressed. It was held, in short, that the legislature had no constitutional right to make a law affecting vested interests, but that it had power to affect the remedy merely in existing causes, where it does not destroy or impair vested rights ; but, as a rule [212] of construction, the intention, to affect the remedy in existing causes, would not be presumed unless that intention was very clearly expressed. .Indeed, this is a rule of construction almost universally recognized, even in jurisdictions where there is no constitutional impediment in the way of affecting vested rights. In this State the rule was fully recognized before the case of Rich v. Flanders, and applied in cases where only the remedy was to be affected, and where the terms of the statutes were broad enough to embrace existing causes. Among these cases are Woart v. Winnick, 3 N. H. 482; Kenneths Petition, 24 N. H. 139; Colony v. Dublin, 32 N. H. 434; Dickinson v. Lovell, 36 N H. 364; and the same rule is distinctly recognized, since the case of Rich v. Flanders, in Railroad v. Cilley, 44 N. H. 579. In the case before us a conveyance or transfer had been made before the law of July 4, 1860, went into operation, and its effect as to rights of the husband, could not be changed by that law unless the intention to affect existing conveyances is very clearly expressed; otherwise it would be construed to operate prospectively upon future conveyances alone.. This conclusion saves the necessity of considering the question whether the husband had, or had not, a vested interest in the wile’s choses in action, before he reduced them to possession. If he had, of which thére can be very little doubt, then, according to Rich v. Flanders, the legislature had no power by a subsequent law to affect that interest. It is enough, however, for the present case, that no intention to affect the husband’s rights in choses in action acquired by the wife before the law, took effect, is clearly made manifest. X Our conclusion,, therefore, is that the rights of the husband in this stock are to be determined by the law's in force at the time of the transfer; and that, consequently, on the death of the wife, the husbfmd became entitled absolutely to this stock, subject only to his wife’s debts; and that, on his death, this interest vested in his representatives. It appears, however, that administration on the estate of the wife has been taken by the plaintiff, who seeks to recover the stock or its value from the possession of the husband’s representative. If there were debts of the wife, for the payment of which this stock was needed, arecovery might in some form be had ; but it appears that no such debts exist; and the question is, whether, under such circumstances, the stock can be drawn from the hands of the person who is entitled to hold it against all but the wife’s debts. If the stock were in the hands of the plaintiff, there being no debts of the wife, he would hold’ it in trust merely for the defendant; and such being the case, we can perceive no ground on which the plaintiff is entitled to recover. The stock is now in the possession of the party entitled to hold it in trust for the heirs of the husband. If recovered it must be upon some ground purely technical; the plaintiff would at once be accountable for it to the party from whom it was drawn; he would in fact be a trustee for the persons who are represented by this defendant, and who alone are beneficially interested in this stock. Under such circumstances, to allow the plaintiff to recover would be much' the same as allowing an [213] administrator, who represents only tlie heirs, for the reason that there are no creditors, to recover from those heirs the several portions of 'the estate which by mutual agreement have been apportioned to them as a final settlement of the estate ; and such an action, it lias been held, cannot be maintained. Hibbard v. Kent, 5 N. H. 516. Upon this principle we think the action cannot be maintained. Besides this, as the representatives of the husband are entitled to both the legal and equitable interest in the stock, it may deserve consideration whether this may not operate, by way of rebutter to prevent circuity of action, as a bar to the action. See Robinson v. Leavitt, 7 N. H. 76. However this may be, upon the other ground, we think the action cannot he maintained.