Wood v. Simmons

• Decision Date: 31 January 1855
• Citation: 20 Mo. 363
• Parties: WOOD, Respondent, v. SIMMONS, Appellant.
• Court: Missouri Supreme Court

20 Mo. 363

WOOD, Respondent,

v.SIMMONS, Appellant.

Supreme Court of Missouri.

January Term, 1855.

1. Upon a sentence of divorce, a wife becomes entitled to all choses in action not previously reduced into possession by the husband, as by survivorship upon the death of the husband.

2. A particular assignment for value by husband and wife of the wife's reversionary interest in a chattel, expectant on the death of a tenant for life, does not defeat the wife's right of survivorship, where the husband dies before the death of the tenant for life. The assignment, in such a case, does not operate as a constructive reduction into possession by the husband.

Appeal from Saline Circuit Court.

In 1836, the plaintiff, who was the daughter of Rice Wood, deceased, intermarried with Albert G. Wood. In 1848, her father died intestate, leaving a widow and four children, including herself. Afterwards, on a division of the estate, the widow's dower was assigned and delivered to her, and consisted of real estate, some slaves and other personal property. In May, 1849, the plaintiff and her husband, by their deed of that date, duly acknowledged and certified so as to pass the wife's real estate, in consideration of $500, sold to the defendant, Simmons, the wife's interest in this dower property. In 1850, the plaintiff obtained a sentence of divorce against her husband, dissolving the marriage. Afterwards, in 1850, the plaintiff's mother died. The defendant now claims the wife's interest in the dower slaves under the deed of May, 1849. The plaintiff has several children, all the property received from her father went into the husband's possession and was squandered by him and she left to support herself and children.

The prayer of the plaintiff's petition was, that the property be secured to her for the support of herself and children, and the defendant restrained from insisting on his title acquired by the deed of 1849. The defendant demurred for want of sufficient matter to constitute a cause of action and for defect of parties. The demurrer was overruled, and the defendant failing to answer, the court decreed a perpetual injunction against the defendant's setting up title under the deed to the slaves and other personal property, and defendant appealed.

A. Leonard, for appellant.

I. The relation of husband and wife between these parties is extinguished by the divorce, and so no question can arise now about the wife's equity to a settlement, or her right to a maintainance out of her own property, founded on her husband's desertion or inability to support her.

II. A conveyance for value by husband and wife of her reversionary interest in a chose in action passes her interest to the assignee, discharged of her right of survivorship. (4 Rawle, 472; 2 Atk. 207; 2 Atk. 549;

2 P W'ms 608; 2 Kent's Comm. [7th ed.] 117; 1 Tucker's Comm 118)

III. If this be otherwise, her interest in these dower slaves is a vested legal estate in remainder, and not a mere reversionary interest in a chose in action, in which the wife has a right of survivorship. (2 Conn. 567; 3 How. [Miss.] 394; 5 Littell, 258; 2 B. Monroe, 77; 10 B. Monroe, 412; 3 Littell, 277.)

IV. If the plaintiff's right to the property be admitted, there is no ground stated in this petition to warrant this judgment against the defendant. (2 Story's Eq. 700, a, p. 13; 3 Brown's Ch. 15; 5 Ves. 286; 3 Mylne & Craig, 107, 14 Eng. Ch.)

Napton, for respondent.

I. All assignments made by the husband of the wife's outstanding personal chattel, which is not and cannot then be reduced into possession, whether the assignment be in bankruptcy, or under the insolvent acts, or to trustees for the payment of debts, or to a purchaser for valuable consideration, pass only the interest which the husband has, subject to the wife's legal right by survivorship. (Purdew v. Jackson, 1 Russ. Ch. 1; Hornsby v. Lee, 2 Madd. 16; Mitford v. Mitford, 9 Ves. 87; Stamper v. Barker, 5 Mad. 157; Morley v. Wright, 11 Ves. 17; Honner v. Morton, 3 Russ. 65; Styfe v. Everett. 1 Mylne & Craig, 37; Woodland v. Croucher, 12 Ves. 177; Richards v. Chambers, 10 Ves. 580; White v. St. Barbe, 1 Ves. & B. 405; Pickard v. Roberts, 3 Madd. 385; Pierce v. Thornby, 2 Sim. 181; Ellison v. Elwin, 13 Id. 309; Burnett v. Kynaston, 2 Vern. 462; Gray v. Kentish, 1 Atk. 280; Gill. Eq. 38; 2 Story's Eq. § 1413; 2 Kent's Comm. 116, 119, notes.)

II. It will not be disputed that in this case, the wife would be entitled to her equity, if the husband were living. If it is, there is an unbroken current of authorities in favor of the proposition, both English and American. (3 Kent's Comm. [7th ed.] p. 138; 2 Story's Eq. tit. Husb. & Wife; Schnyler v. Hoyt, 5 John. Ch. 208; 4 John. Ch. 318; 6 John. Ch. 178; 5 John. Ch. 464; 3 Cow. 590.) That the husband's death does not affect the wife's equity, except in cases where she gets the whole as survivor, is abundantly shown by the authorities. (5 J. C. 475; 2 Atk. 417; 3 Ves. 506; 1 Russ. Ch. 28.)

III. It is immaterial whether the wife took in this case by survivorship, or was merely entitled to her equity. In either event, the judgment upon the demurrer must be sustained. The court may, in its discretion, give the whole or a part only of the property to the wife, according to the circumstances, and there is nothing in the record to show any improper exercise of discretion in giving the whole. On the contrary, the facts disclosed in the petition show a case in which she was clearly entitled to the whole.

RYLAND, Judge, delivered the opinion of the court.

The questions involved in this case are of much importance to the community, and have engaged our earnest and serious attention. These questions have met with different solutions in some of the States of our Union. But we are inclined to think that the weight of authority, both in England and in this country, is on the side of the plaintiff, Wood. Do the facts in this case authorize the court to declare that, in the present state of the law, the wife's right of survivorship must prevail over the assignee of the husband and wife? We answer in the affirmative.

1. Here, the divorce obtained by the wife from the husband must, in law, be considered the same as the death of the husband; and the wife must be looked upon as his widow. In the case of Browning v. Headly, (2 Rob. Va. 340,) the divorce obtained by the wife from the husband by the legislature of Kentucky, was considered as operating as the civil death of the husband. Judge Stannard said: “I concur in the opinion of Judge Allen, that the effect of the act of divorce upon the rights of the wife is to place her in the same position as if her husband had then died.” I dismiss, therefore, this question, by stating that there is no doubt of the correctness of the judgment below, so far as it considers the divorce of the wife from the husband operating so as to place the wife in the situation she would have occupied had her husband then died.

2. But the more important question, “does the conveyance for value of the husband and wife of the wife's reversionary interest in the slaves and other property belonging to her mother in her dower right, pass the wife's interest to the assignee, discharged of her right of survivorship?” remains yet for our consideration. This question we, after considering the various authorities, unhesitatingly answer in the negative.

By the common law, the husband was entitled to administration on his deceased wife's estate, and, like all other administrators, had exclusive enjoyment of the residuum after payment of debts.

The statute of 22 and 23 Charles II, chap. 10, compelled the administrator, after the payment of funeral charges, debts and all expenses, to distribute the remainder of the personal estate to the wife and children, and children's children, if there be any, or otherwise to the next of kindred to the dead person.

There were doubts whether, under this last statute, the husband was not, like all other administrators, compelled to make distribution among the next of kin of the deceased wife.

To remove these doubts, the 25th section of 29 Charles II was enacted, which placed the estates of feme coverts dying intestate without the oper ation of the 22 and 23 Charles II, and left their husbands the same power and privileges as they had before the passage of the 22 and 23 Charles II. The husband then succeeded, by his right to administer upon the estate of his wife, after payment of funeral expenses and debts, to the residuum of her estate, discharged from the burden of distribution among her next of kin. This rule of the common law has been adopted by some of the states of our Union, and not by others. The state of Missouri has not adopted it. Nor can the husband, as the wife's administrator, receive the estate of the wife with us, discharged from the burden of distribution; but, like other administrators, he must account to those entitled, under our laws, to the same. We call in the kin of the wife from the four corners of the earth, and distribute to them before the husband can take.

In the case of Leaky's Adm'r v. Maupin, (10 Mo. 372,) this court held the following doctrine--the opinion delivered by Judge Scott, the other judges concurring: “Marriage is, by law, an unqualified gift to the husband of all the personal estate of the wife in her possession at the time of its taking place, and if he should die in an hour after the marriage, having received a large personal estate from the wife, all of that estate, except what our law allows her as dower, would go to the kindred of the husband and not to the wife. But as to choses in action or mere rights to receive money or property from another, the law only gives the husband a qualified right to them, viz: on condition that he reduces them to possession during coverture, and if he fails to do this, if the wife survive, she will be entitled to them. This principle is applicable as well to choses belonging to the wife at the...