Stockett v. Bird's Adm'r

• Decision Date: 09 July 1862
• Citation: 18 Md. 484
• Parties: FRANK H. STOCKETT, Adm'r of ELLEN BIRD, v. JACOB W. BIRD'S Adm'r.
• Court: Maryland Court of Appeals

18 Md. 484

FRANK H. STOCKETT, Adm'r of ELLEN BIRD, v. JACOB W. BIRD'S Adm'r.

Court of Appeals of Maryland.

July 9, 1862

Certain choses in action, consisting of notes and obligations, were given to the wife during coverture, and were not reduced into possession, nor judgments obtained on them by the husband, in his lifetime. The wife died intestate, and without leaving children. HELD:

1st. That these choses in action belong to the administrator of the wife, under Art. 92, sec. 32; and not to the husband under Art. 45, sec. 2, of the Code.

2nd. No distinction can be made between such of these choses in action as accrued to the wife before, and such as accrued to her after, the adoption of the Code: for in the former case they would belong to the wife's administrator under the Act of 1798, ch. 101, sub-ch. 5, sec. 8.

Art 93, sec. 32, of the Code, creates an exception to the general provisions of Art. 45, sec. 2: the two must be read together, and construed upon the rule, that where a general intention is expressed in a statute and also a particular intention incompatible therewith, the latter is to be considered in the nature of an exception.

APPEAL from the equity side of the Circuit court for Anne Arundel county.

This appeal was taken under Art. 5, sec. 25, of the Code , from an order dated November 26th, 1861, of the court below (BREWER, J.) refusing an injunction. The injunction was not asked for in the bill, but by petition on the facts disclosed in the answer. In the course of the argument in this court the question was raised, whether this was a case coming within this provision of the Code, but a majority of the judges who heard the case, decided that it did. The facts of the case are sufficiently stated in the opinion of this court.

The cause was argued before BOWIE, C. J., GOLDSBOROUGH and COCHRAN, J.

Frank H. Stockett for the appellant:--Ellen Bird died, (as for the purposes of this case must be conceded,) a few hours before her husband, Jacob W. Bird, intestate, and leaving no children. The administrator of the husband found a number of notes or choses in action payable to Ellen Bird, some among the private effects of Ellen, and others among the papers of the husband, but none of them had been reduced into possession, or judgments recovered on them by the husband in his lifetime, and the only question is, whether these choses in action devolve upon the administrator of the wife, or belonged to the husband? This depends upon the construction to be given to the two sections of the Code, Art. 45, sec. 2, and Art. 93, sec. 32. The appellant contends:--

1st. That these notes being choses in action of the wife, not reduced into possession by the husband, or judgments obtained thereon in his lifetime, devolve upon her administrator, according to the express provision of Art. 93, sec. 32, which is but a codification of the Act of 1798, ch. 101, sub-ch. 5, sec. 8. 4 Md. Rep., 316, 328, Crane vs. Gough.

2nd. That Art. 45, sec. 2, which declares that where a married woman dies intestate, leaving no children, " her personal property " shall vest absolutely in her husband, cannot be construed as repealing, or as contradictory to the law as enacted in relation to choses in action, which are a peculiar species of property, but must be construed to embrace all other personal property except choses in action. This section makes a general provision for all personal property, and the subsequent section of Art. 93, exempts from its operation this particular species of personal property; such must be the construction of the two sections.

Thos. S. Alexander, for the appellee.

1st. Upon the true construction of Art. 45, secs. 1, 2, choses in action of the wife dying intestate, and without children, devolve in absolute property on her surviving husband. They constitute part of the wife's personal property, within the purview of that article, and are subject to all its provisions. Art. 93, sec. 32, is admitted to be inconsistent with the preceding Article, since it professes to give to the choses in action of the wife, a destination altogether at variance with the provisions of Art. 45, and for this reason may and ought to be disregarded. By Art. 45, she holds all her property real and personal, belonging to her at the time of her marriage, or acquired since, to her separate use, with power of devising it as if she were a feme sole. Now if choses in action are affected by the subsequent Article, she could not hold them to her separate use, nor devise them, and the salutary provisions of Art. 45 would, in a great measure, be defeated, because every description of choses in action, embracing a vast amount of property, would be exempt, from all the provisions of that Article. As illustrative of the antecedent law on this subject, reference is made to the Acts. of 1798, ch. 101, sub-ch. 5, secs. 8, 9; 1841, ch. 161; 1842, ch. 293; 1853, ch. 245; 12 Md. Rep., 294, Schindel vs. Schindel; 14 Md. Rep., 258, Bridges vs. McKenna; 17 Md. Rep., 352, McKee vs. McKee. The provisions of Art. 45, are evidently in consonance with the present policy of the State, whilst the provision in Art. 93, sec. 32, is obsolete law, and was doubtless embodied in the Code inadvertently.

2nd. The Code operated only on the choses in action, made to the wife since its adoption, January 12th, 1860. The case of Peacock vs. Pembroke, 4 Md. Rep., 280, is referred to, in order to show that the notes taken anterior to the adoption of the Code vested eo instanti in the husband, and this absolute right could not be divested by the subsequent enactment of the Code. See, also, Code, Art. 1, sec. 1.

3rd. If the rights of the husband to the choses in action, taken in the name of his wife during coverture is dependent in any degree upon the election of the husband, it is submitted, that an election was certainly made in regard to the notes, which were retained by the husband in his own possession.

OPINION

GOLDSBOROUGH,...