Hatch v. Hatch

• Decision Date: 06 May 1915
• Docket Number: 2688
• Citation: 46 Utah 116,148 P. 1096
• Court: Utah Supreme Court
• Parties: HATCH v. HATCH

148 P. 1096

46 Utah 116

HATCH v. HATCH

No. 2688

Supreme Court of Utah

May 6, 1915

Appeal from District Court, Fourth District; Hon. A. B. Morgan Judge.

Suit by Joseph Hatch, as administrator of the estate of Permelia Jan Hatch, against Ruth Hatch and Abram C. Hatch as executors of Abram Hatch.

Judgment sustaining demurrers to the complaint. Plaintiff appeals.

REVERSED, AND CAUSE REMANDED, with directions.

W. S Willes, J. W. N. Whitecotton, and E. A. Walton, attorneys for appellant.

Chas Hatch, Rawlins, Ray and Rawlins, for respondent.

STRAUP, C. J. McCARTY, J., concurs. FRICK, J., concurring in part, dissenting in part.

OPINION

STRAUP, C. J.

This is a case in equity. It went off on demurrers to the complaint. The ruling is presented for review.

The plaintiff's intestate and the defendants' testate were husband and wife. She died in November, 1880. An administrator of her estate was not appointed until in January, 1912. He died in December, 1911. In January, 1912, the defendants were appointed executors of his estate. They left children surviving them, who at the death of plaintiff's intestate, were twenty-six, twenty-three, twenty, seventeen and nine years of age. The complaint is in four counts. We shall refer to only so much of it as is necessary to a proper consideration of the questions involved. The first proceeds on the theory that the wife at her death was, and for many years prior thereto had been, "the owner of an undivided interest and share of certain partnership business or joint adventure known as the Heber Co-operative Mercantile Institution, and sometimes known as Abram Hatch & Co.'s store, which business consisted of general merchandising, money loaning, and the ownership of real and personal property, good will, and other things incidental to a co-operative store"; that he was a co-owner with her in the business, and that "at the time of the death of plaintiff's intestate and up to the time of" his death "all of said property was in the actual possession and control of" him, and that he "took, held, and retained the same as surviving partner of plaintiff's intestate"; that in March, 1888, he assigned, transferred, and made over, all the property, assets, stock, and good will of the partnership or joint adventure, to a corporation, receiving therefor 1,400 shares of the capital stock of such corporation; that he, at the time of his death, held of such shares 1,050 shares, which thereafter, and at the commencement of the action, were in the possession and under the control of the defendants; that dividends on the stock had been paid to and received by. him, and after his death to the defendants, but that neither accounted for the same, and that those paid to him augmented his estate, and those paid to the defendants were held by them "in specie."

In the second cause it is alleged that in November, 1880, the plaintiff's intestate was the owner of $ 120, which was recognized by the defendants' testate as a portion of her separate estate; that she then "placed the same into his hands and possession, with instructions and upon the agreement to purchase for her twelve shares of stock" of another corporation, and that he, in June, 1881, with such moneys purchased twelve shares of such stock, taking the certificate in his own name. Then it is alleged that dividends were paid upon that stock, which were received by him, and not accounted for, that he was possessed of such stock at the time of his death, and that the same at the commencement of the action was in the possession of the defendants.

In the third cause it is alleged that plaintiff's intestate at all times during the marriage "was possessed of a separate estate," and "during all said time the existence of said separate estate was recognized by the defendants' testate," and that "in respect of their business dealings and relations they dealt the one with the other independently as one stranger with another; that during the years 1877 and 1878 plaintiff's intestate and defendants' decedent were equal owners and tenants in common of large numbers of cattle, and while so equal owners of said cattle and during said years" he "sold therefrom a large part, and received therefor the sum of $ 16,200, one-half of which belonged to the plaintiff's intestate"; that at the time of her death she and he "were the equal owners and tenants in common of a large herd of cattle, and thereafter and in the year 1882" he "sold a large number thereof and received the sum of $ 28,000; * * * that no accounting of payments in respect of said property and money has ever been made to" plaintiff's intestate, "or her estate, or the beneficiaries thereof, but, on the contrary, said property and money were retained by him, and reinvested by him, and the proceeds and increments arising therefrom reinvested and transmuted into other property, which defendants' decedent had standing in his name at the time of his death, and the same has come into and now is in the possession of the defendants."

In the fourth count it is averred that during the subsistence of the marriage relation he "continuously dealt with and treated plaintiff's intestate in respect of her property rights as a feme sole, and as being under no disability by reason of her marriage in respect of her personal earnings and personal property, and at various times entered into and engaged in joint adventures and partnerships with her as if a stranger"; that in September, 1867, she "was the owner in her own right of $ 8,000 in money, a portion of her separate estate, which was turned over and delivered and intrusted to" him "as her agent for the purpose of purchasing" certain goods and merchandise for her; that with such moneys such goods were purchased by him and placed in stock in which they had a joint interest, and which later was transferred from Lehi to Heber City, and that the proceeds thereof were received by him and from time to time reinvested, and which property, together with the increments, was, at the time of her death, taken into his exclusive possession, and was held and retained by him at the time of his death, and which thereafter came into, and at the commencement of the action was in, the possession of the defendants.

In all of them it is alleged that under the law he, during his lifetime, was entitled to the income of one-fourth of all the property and interest owned and possessed by plaintiff's intestate, but that he, after her death, held and retained possession of the whole of her property and interest, and that he thereupon became and was a tenant in common with the beneficiaries and surviving heirs of plaintiff's intestate. In all of them it also is alleged that claims were presented to the defendants, as executors, but that each and all were rejected by them. There are also other allegations respecting relations of tenants in common, trust, and other fiduciary relations. In each there is prayer for an accounting and for equitable relief.

To all of these counts demurrers were interposed on grounds of insufficient facts, laches, and the statute of limitations, ambiguity, defect of parties, misjoinder of actions, and of variance between the claims presented and causes stated. Those chiefly urged are the first two. It is claimed no cause of action is stated in either count, because at all times stated in the complaint the English common law was in force in the territory, and that thereunder the legal existence of the wife was suspended and was merged in that of her husband, and thus she was incapable of owning, holding, or acquiring property, and that whatever property she may have had became his on the marriage and was his at the time of her death; and hence the allegations that she had a separate estate and was the owner of property at the time of her death; and hence the allegations that she had a separate estate and was the owner of property at the time of her death are incompatible with law, and therefore must be disregarded.

Much is said in the briefs by appellants that the civil law, and by respondents that the English common law, was in force in the territory during all the times stated in the complaint. Utah is of territory which, in 1846, passed from the possession of Mexico into that of the United States by the treaty of Guadalupe Hidalgo, which terminated the Mexican War. The original territory so acquired embraced the region west of the summit of the Rock Mountains, east of California, and between the thirty-seventh and forty-second parallels of north latitude. At the time of the treaty and cession the civil law prevailed in the republic of Mexico. It continued to so prevail in the acquired and ceded territory until changed by the new sovereign. Botiller v. Dominguez, 130 U.S. 238, 9 S.Ct. 525, 32 L.Ed. 926; 1 Story on the Constitution, Section 150. A provisional government was established in the territory by its people in 1849. There is nothing in that to show that the English common law was established by them. In 1850 Congress created the acquired territory into a temporary government by the name of the Territory of Utah, and passed what is known as the Organic Act for the territorial government of Utah Territory. Later Nevada, portions of Idaho, and of Wyoming and Colorado, and other territory, were carved out of Utah Territory. The last section of the act reads:

"That the Constitution and laws of the United States are hereby extended over and declared to be in force in said Territory of Utah so far as the same or any provision thereof may be applicable."

By that it is claimed on the one side, and denied on the other, that Congress extended over or transplanted the English common law into the territory so acquired from Mexico. There are no other enactme...