Leakey. Adm'r v. Maupin

• Decision Date: 31 January 1847
• Citation: 10 Mo. 368
• Court: Missouri Supreme Court
• Parties: LEAKEY. ADM'R, &c., v. MAUPIN.

10 Mo. 368

LEAKEY. ADM'R, &c.,

v.MAUPIN.

Supreme Court of Missouri.

January Term, 1847.

APPEAL FROM HOWARD CIRCUIT COURT.

CLARK, for Appellant. 1st. By the common law the personal estate of all intestates vested in the administrator without any charge of distribution, which remained until the enactment of the statute of 22nd and 23rd of Car. II, after that statute all estates were charged with distribution except estates acquired by the husband as administrator of his wife, which were expressly exempted. Hence, by the common law, as well as under the statute of Car. II, the husband is entitled to administer, and not being required to distribute, obtains and takes his wife's estate as her administrator; but our statute of Descents and Distributions requires that all estates, without any exception, administered upon, shall descend and be distributed according to the provisions of that act. Admitting then that the personal estate of the wife at her death becomes the husband's, as her administrator he holds the same as any other administrator charged with distribution under our statute, the provisions of which exclude him where there are any kindred;--the principles involved in this case were decided by this court in the case of Pratt v. Wright, Adm'r, reported in 5 Mo. R. 192. In aid of the views here taken, we also refer to 2 Williams, Ex'r, 479, 1061. 2nd. It is also insisted that in this country all estates (including feme coverts), at the death of the intestate vest in their administrator for the use and benefit of those entitled to distribution, and the same must be distributed to the next of kin as pointed out in the statute; then in this case, at the death of the ancestor, Leakey, his estate vested in his administrator charged with distribution to the next of kin including the appellee's wife, but she having died intestate without leaving issue, before her interest was distributed the same in the hands of her father's administrator would under our statute as well as by the rules of equity be distributed to her kindred, her husband having no right in such an interest until reduced to possession, whether as a chose in action or an interest acquired otherwise. See our statute of Descents and Distributions, Digest, 421.3rd. In England, as well as in this State, the administration is always granted to the one having the interest in the estate: in this case, at the death of Mrs. Maupin, her husband not being entitled to a distributive share in her estate not reduced to possession, would not be entitled under our statute to administration in preference to her kindred, but if he was, he must distribute the estate according to our statute, and if so he is excluded; he takes here if at all under our statute, while in England, and many of the States of this Union, he takes under the common law and the act of Car. II. See act of Distribution, Digest, 421; 1 Williams on Ex'r, 267-8, 269-70; 5 Mo. R. 192.

DAVIS, for Appellee. 1st. Upon the death of Jeremiah Leakey, his personal as well as real estate descended and did not go to the ordinary or legal representatives as at common law. See the case of Wright v. Pratt, 5 Mo. R. 192; also the statute of Descents and Distributions of 1835, page --. The right of inheritance in the personalty of the deceased did not remain in abeyance; but vested in his heirs immediately upon his death, subject to the rights of creditors and expense of administration, as enjoined by other laws upon the administration. 2nd. The right of inheritance did not vest in Sarah Maupin, the daughter of Jeremiah Leakey, on the death of her father, but in her husband, Rice G. Maupin; she, being at that time a married woman, cannot take. See Toller on Executors, 225; 4 Dana's R. 333. 3rd. Rice G. Maupin's interest in said inheritance is not derived through the statute of Descents and Distributions of this State, but depends upon prinoiples of the common law by virtue of his marriage. See 6 Johns. R. 119. 4th. A chose in action belonging to the wife before marriage does not belong to the husband absolutely until he reduces it to possession, but a chose in action accruing to the wife during coverture belongs to the husband absolutely. 6 Johns. R. 119; 4 Dana, 333; 1 J. J. Marshall, 169; 3 Littell, 281.

SCOTT, J.

This was a proceeding commenced in the County Court of Howard county by Maupin, the appellee, to obtain from J. J. Leakey, administrator of Jeremiah Leakey, deceased, a distributive share in right of his wife of the estate of the said Jeremiah Leakey. In 1841, Maupin married S. Leakey, a daughter of the said Jeremiah, who died intestate in March, 1842. In October, 1842, Sarah Leakey, the wife of Maupin, the appellee, departed this life without issue, leaving heirs preferred to her husband as distributee under our statute of Descents and Distributions. No distribution of the estate of her deceased father had been made at the time of the death of Sarah Leakey. The County Court refused Maupin a distributive share of said estate in right of his deceased wife, and on an appeal to the Circuit Court that judgment was reversed, and the cause brought here.

The only question arising under this state of facts is whether Maupin, the husband of Sarah Leakey, deceased, or her heirs, are entitled to her distributive share in the estate of her deceased father?

If this was a question depending upon the English law for its solution it could not admit of any doubt. By that law the right of the husband as administrator to his deceased wife's choses in action not reduced into possession during the coverture would be unquestionable, but as some of the provisions of the English law in relation to this subject have been omitted and others varying from them have been incorporated into our system of laws, it becomes a question whether a husband under our law is entitled to his wife's choses in action not reduced into his possession during her life-time, she leaving heirs preferred to the husband under our statute of Distribution.

In ancient times when a man died intestate, the King, as parens patriæ, took possession of his effects to be employed in defraying the expenses of his burial, paying his debts, and for the support of his wife and children or other kin. The execution of this trust was devolved on the clergy, and many abuses growing out of their conduct in relation to it, the statute of Westminster II, 13th Ed. I., which was said to be in affirmance of the common law, enacted that the ordinary should pay the debts of the intestate as far as his goods extended, in the same manner the executors were bound in case the deceased had left a will. But the residuum after payment of debts remained in the hands of the ordinary to be applied to any purposes his conscience might approve. Great abuses arising under the exercise of this power, the Legislature again interposed, and by the statute of 31st Ed. III., required the ordinary to depute the next and most lawful friends of the intestate to administer his goods. This is the origin of administrations in England. The statute 21st Hen. VIII., enacted that administration might be granted by the ordinary to the widow of the deceased or his next of kin, or both in his discretion. In none of the statutes on the subject of Administration is express mention made of the right of the husband to administer...