Lowery v. Craig

Fisher, J. This is an appeal from a decree of the Probate Court of Carroll county. James H. Herbert, in his lifetime was administrator of the estate of Alfred W. King, deceased: the final account touching Herbert’s administration was rendered by his administrator. Lowery and wife, the latter being the widow of King, filed an exception to one item in the account, of $303.13, — being a credit claimed by the accountant, for so much money by Herbert in his lifetime paid to Mrs. Lowery, in discharge of a decree which she had obtained against him, on account of property sold by the administrator, which was by the statute exempt from execution, and which on the death of King, vested in his widow. On the trial in the court below, evidence was introduced for the purpose of showing that Herbert in his lifetime had commenced a suit against Lowery and wife, and that the matters put in litigation by the pleadings of all the parties, as well as all other matters, including the above named decree, were compromised. It is insisted by counsel that this compromise was as to Mrs. Lowery void, as it does not appear that she acted in the premises: indeed, it is in effect insisted that she could not act. We disagree with counsel in this view of the law. Admitting, as contended by counsel, that the decree was merely a chose in action, which view we believe to be correct, it stood upon the same footing as a chose in action in which the wife was interested, by the rules of the common law. The husband would have no vested interest therein until reduced to possession, or some act done on his part which amounted to an assertion of ownership over the same. Releasing would be such an act; or payment to him by the sheriff, or party, would be a reduction to possession. The case under the previous decisions of this court, does not fall within the. provisions of either the statute of 1839, or 1846, giving a feme covert a separate estate in certain enumerated, property. [21] The decree was rendered against King’s estate, and tbe only-question for tbe Probate Court to decide, was whether part of tbe estate bad been employed or consumed in discharging tbe decree. Tbe administrator, Herbert, stood charged with tbe whole estate; and to get rid of this charge bis administrator bad to show to what purposes tbe estate bad been applied: when be showed a legal disposition of part of tbe estate, he was entitled to credit accordingly. Decree affirmed.