Baker v. Dew

• Decision Date: 09 November 1915
• Citation: 179 S.W. 645,133 Tenn. 126
• Parties: BAKER v. DEW ET AL.
• Court: Tennessee Supreme Court

179 S.W. 645

133 Tenn. 126

BAKER v. DEW ET AL.

Supreme Court of Tennessee.

November 9, 1915

Appeal from Chancery Court, Knox County; Will D. Wright, Chancellor.

Suit by J. T. Baker against Mrs. R. E. Dew and others. Demurrer to bill was overruled, and defendants appeal. Affirmed and remanded.

O. L White, S. R. Maples, Cornick, Frantz & McConnell, Jourolmon & Welcker, and Green, Webb & Tate, all of Knoxville, for appellants.

Jesse L. Rogers, of Knoxville, for appellee.

BUCHANAN J.

Baker married Miss Clara Dew, a daughter of Mrs. R. E. Dew. The marriage occurred on November 1, 1914, and was dissolved by the death of Clara, on March 30, 1915. The bill in this case was filed by Baker on June 16, 1915, seeking a decree against Mrs. Dew and other defendants for the sum of $1,515.40 averred to be in the hands of Mrs. Dew, as guardian of her daughter Clara. The suit is based upon the ground that the above sum of money in the hands of Mrs. Dew was, at the time of the marriage, the property of Clara, and, upon the death of Clara, became the property of Baker jure mariti. Defendants interposed a demurrer, which the chancellor overruled but allowed an appeal which defendants perfected.

The question made by appellants is that the bill shows the marriage and death of Clara Baker to have occurred after chapter 26 of the Acts of 1913 went into effect, and therefore it is said the chancellor should have sustained the demurrer and dismissed the bill upon the ground that the act abrogated the marital rights of the husband in the personal property of the wife, and upon her death the above sum passed to her next of kin and heirs at law.

The substance of the title of the act of 1913 is "To Remove Disabilities of Coverture from Married Women," and the substance of the body of the act is:

That married women are fully emancipated from all disability on account of coverture, and the common law as to the disabilities of married women and its effect on the rights of property of the wife, is totally abrogated. Marriage shall not impose any disability or incapacity on a woman as to the ownership, acquisition, or disposition of property of any sort, or as to her capacity to make contracts and do all acts in reference to property which she could lawfully do if she were not married. Every woman now married, or hereafter to be married, shall have the same capacity to acquire, hold manage, control, use, enjoy, and dispose of, all property real and personal, and to make any contract in reference to it, and to bind herself personally, and to sue and be sued with all the rights and incidents thereof, as if she were not married.

This act has been considered by us heretofore in three cases. Parlow v. Turner, 178 S.W. 766; Sarah Lillienkamp v. W. T. Rippetoe, and J. G. Bennett et al. v. Jefferson Hutchens et al. The opinions in the two cases last named were delivered at the present term. In Parlow v. Turner, supra, the wife was the owner of two tracts of land at the time of her marriage, which occurred prior to the passage of the act of 1913. She rented the land to a tenant by the month, the tenant paid the rent to her which accrued after the passage of the act, and upon the suit of the husband, seeking to compel the tenant to pay the same rent again, we held the tenant to be acquitted by the payment to the wife, and the result reached was based on the act of 1913. In Lillienkamp v. Rippetoe, supra, we held that the act did not enable a divorced woman to maintain against her former husband an action for assault and battery committed by him upon her person after the act was passed, and while they sustained towards each other the relationship of husband and wife, and in Bennett v. Hutchens, supra, we held that the act did not abrogate an estate held by the entireties created by deed to husband and wife antedating the passage of the statute.

Prior to the passage of the act of 1913 the law in this state upon the question of the husband's rights in the personal property of the wife was well settled. In Prewitt v. Bunch, 101 Tenn. (17 Pick.) 723, 50 S.W. 748, it was said:

"Personal property in possession, and the possession of the wife in such cases is the possession of the husband, is, in law, the property of the husband; nothing else appearing to show a separate property of the wife. Wade v. Cantrell, 1 Head, 346; Hollingsworth v. Mith (Miller), 5 Sneed, 472; Cox v. Scott, 9 Baxt. 305.

The general principle of the common law is that marriage amounts to an absolute gift to the husband of all personal goods of which the wife is actually or beneficially possessed at the time, or which comes to her during coverture. Wade v. Cantrell, 1 Head, 346; Allen v. Walt, 9 Heisk. 242; Joiner v. Franklin, 12 Lea, 422; Handwerker v. Diermeyer, 96 Tenn. 619, 627 . The common-law rule that the husband is entitled to receive and reduce to possession, during coverture, all choses in action, whether in the form of notes, debts, or legacies, belonging to the wife at the time of their marriage, or accruing afterwards, prevails in Tennessee. Rice v. McReynolds, 8 Lea, 36, 37. Where money of the wife is in the hands of her guardian, the latter may settle with the husband and pay him the money due. Sanders v. Forgasson, 3 Baxt. 249; Lane v. Farmer, 11 Lea, 568-572. The fact that the wife is a minor at the time of marriage makes no difference, for, upon marriage of a female ward, guardianship ceases. Jones v. Ward, 10 Yerg. 168. From that time the husband becomes clothed with the right to demand, receive, and sue for the distributive share of his wife in her father's estate, or for any funds in the hands of the guardian. The guardian might settle with him and pay him the money due the wife. Lane v. Farmer, 11 Lea, 568-572. It is also well settled that if, for any reason short of abandonment of these fixed and vested rights by the husband, the wife dies before reduction to possession, the choses in action go to the husband, and whether this be as next of kin or jure mariti is immaterial. Williams on Exec. 242; 2 Kent Com. 137; Hamrico v. Laird, 10 Yerg. 222; Tune v. Cooper, 4 Sneed, 296."

See, also, on the same subject, D'Arcy v. Mutual Life Ins. Co., 108 Tenn. (24 Pick.) 567, 69 S.W. 768; Shugart v. Shugart, 111 Tenn. (3 Cates) 179-183, 76 S.W. 821, 102 Am. St. Rep. 777; Williford v. Phelan, 120 Tenn. (12 Cates) 589-596, and authorities cited; Mitchell v. Bank, 126 Tenn. (18 Cates) 669, 150 S.W. 1141.

In Prewitt v. Bunch, supra, the equity of the wife to a settlement, who died without issue (as did the wife in the present case), was held to be no bar to the suit of the husband brought after the death of the wife, and the holding in that case was mainly put on the ground that if the husband had sued during the life of the wife, and a settlement had been decreed to her, it would only have been for the life of the wife, with remainder to the husband, she leaving no issue.

In one of our cases, speaking of the marital right of the husband, it was said:

"If there be a marriage contract whereby this right is abridged, it is taken away only to the extent stipulated in the settlement. When the settlement makes no disposition of the property, in the event of the wife's death, and provides only for her dominion over it during coverture, the right of the husband as survivor is a fixed and stable right over which the court has no control, and of which he

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