Wait v. Bovee

• Decision Date: 16 January 1877
• Citation: 35 Mich. 425
• Court: Michigan Supreme Court
• Parties: E. Franklin Wait and Others v. David Bovee

35 Mich. 425

E. Franklin Wait and Others v. David Bovee

Supreme Court of Michigan

January 16, 1877

Heard January 4, 1877

Error to Branch Circuit.

The plaintiffs in error are the heirs at law of Justin Wait deceased, and the administrator of his estate; and defendant in error is administrator of the estate of Julia Wait, the wife of said Justin Wait. The facts are sufficiently stated in the opinion.

Order of the circuit court reversed and the order of the probate court affirmed. Plaintiffs in error recovered their costs of this court and of the circuit court.

E. G Fuller, for plaintiffs in error.

"If goods are given to husband and wife, the wife shall not have them by survivorship, but the executors of the husband." --5 Bac. Abr., 244; Roll. Abr., 349.

All the adjudicated cases under Comp. L., §§ 4803-6, tend to individualize the wife, and treat her and her property as if she was sole.--West v. Laraway, 28 Mich. 464-70; Burdeno v. Amperse, 14 Mich. 91; Tong v Marvin, 15 Mich. 60; Ransom v. Ransom, 30 Mich. 328.

In those states where community of interests, between husband and wife, prevail by operation of local laws, it is uniformly held that no survivorship exists, and that on the death of either the husband or wife, one-half of the community property vests in the children of the deceased: Broad v. Murray, 44 Cal. 228; Magee v. Rice, 37 Tex. 483; Walker v. Young, 37 Tex. 519; Bell v Schwarz, 37 Tex. 572 (733); Walker v. Howard, 34 Tex. 478; Hickman v. Thompson, 24 La. 264; Picotte v. Cooley, 10 Mo. 312.

N. P. Loveridge and Upson & Thompson, for defendant in error.

The notes, mortgages, and other securities, and the moneys derived therefrom, were the sole property of Julia Wait as survivor of her husband, Justin Wait: Craig v. Craig, 3 Barb. Ch, 76; Bowt v. Spelman, 4 Comstock 284; Sanford v. Sanford, 45 N. Y., 723; Sanford v. Sanford, 58 N. Y., 69; Fisk v. Cushman, 6 Cush. 20; Draper v. Jackson, 16 Mass. 479; Burlew v. Hillman, 1 Green, N. J., 23; Roman Catholic Orphan Asylum v. Stram, 2 Brad. 34; Richardson v. Daggett, 4 Vt. 336; Briggs v. Beach, 18 Vt. 115; Barber v. Harris, 15 Wend. 617; Sutliff v. Forgey, 1 Cow. 89; Torrey v. Torrey, 14 N. Y., 430; Dummer v. Pitcher, 5 Simons 9 Eng. Ch., 35; Scott v. Sumes, 10 Bosworth, 314; Fisher v. Proven, 25 Mich. 347; Snyder v. People, 26 Mich. 106.

OPINION

Graves, J.

This controversy is between the estate of the husband on the one hand and that of the wife on the other, and it presents a single question.

At the time of their intermarriage the decedents were respectively possessed of about two thousand eight hundred dollars, and each had children by a former marriage.

Their marriage occurred in 1852, and each thereafter recognized the separate property rights of the other. They made investments jointly, each supplying half of the means, and they took all securities in their joint names. This course continued until March, 1873, when the husband died. At this time the personalty so handled and situated had swelled to a considerable amount. No question is involved concerning right to real estate, or any question concerning the rights of creditors. The point is confined to the right to this personalty as between the two estates, the wife also being now deceased. On the part of her estate it was claimed below and is here, that in regard to these securities taken in the joint names, the old law of survivorship governs, and that as she outlived her husband she took the whole.

On the other side it is urged that no such rule now prevails in this state, whatever may have been the case formerly, and that the law now recognizes and protects the property interests of husband and wife in joint securities as separate and distinct interests when particular circumstances do not exist to show a contrary intention in the parties.

The judge of probate ruled against the right of survivorship claimed on behalf of the wife, and his order was appealed from to the circuit court. That portion of his order which so decreed was there reversed, and it was decided that by force of the law of survivorship the wife took the whole. The conclusion of the probate court was correct, and that of the circuit court was erroneous. As the case stood, the question was upon the bare legal effect of the husband's death in the lifetime of the wife upon the right to the securities taken by them jointly. Our own decisions relative to the rights of husband and wife in case of united holdings of real estate, afford no argument here. They were grounded upon the statutory preservation of the common law doctrine, and which originated in and was developed by a policy not pertinent to cases of taking and holding of personal securities. There is no question on evidence as to whether there was a gift by the husband to the wife, or a contingent relinquishment of right by one to the other; the case fairly excludes all considerations of that kind....