Bond v. Conway

Eccleston, J., delivered the opinion of this court. This action was instituted upon two single bills, each for one hundred dollars, one dated the 23rd of October 1848, and the other the day after. They were given by Thomas B. Conway, the defendant, to Eleanor Bond, then the wife of Edward Bond. The husband has died since, and the suit was brought by his executor, Benjamin Bond, on the 4th of August 1853.

The nar states the causes of action as having been given by Conway to Eleanor the wife, that Edward, the husband, has since died, and that the defendant hath not paid the money to him in his life time, or to the plaintiff since the decease of the said Edward. The defendant demurred to the nar, and after joinder in demurrer, the court gave judgment in favor of the defendant; from which the plaintiff appealed. Whether the wife died before or after her husband, or is still living, does not, appear. ⁵¹⁵ The appellant claims a reversal of the judgment, upon the ground, that these chases in action having been given to the wife during coverture, they immediately became the absolute property of the husband, without any necessity for his reducing them into possession during his life; and passed to his executor ijpon. his decease, whether the wife survived him or not. It is therefore insisted, that no question growing out of the doctrine of survivorship, as between husband and wife, can present any valid objection to the plaintiff’s right of action.

But the defendant contends that these chases in action were only conditionally the husband’s property, being subject to the wife’s right of survivorship. And unless he reduced them into possession during his life, they passed to the wife, if living, and if not, to her representative. This suit being instituted in the name of the executor, proves that the dioses in action were not reduced into possession by the husband, at the time of his decease; at which time the wife, if living, aud if not, her representative, became entitled to them; the executor of the husband having no claim whatever, whether the wife or the husband was the survivor. And as the present plaintiff never had any claim to the causes of action he cannot maintain the suit.

The question before us has occasioned much discussion, and many conflicting decisions on the subject are to be found. In reference to dioses in action belonging to the wife when married, it is well settled, that they do not vest in the husband absolutely. By the marriage lie only acquires an inchoate- or conditional right; he may reduce them into possession and apply the proceeds to his own purposes; but if the wife is the survivor, and the dioses in action remain not reduced into possession, she is entitled to them, and they do not pass to his representatives. And in Maryland, by the act of 1798, ch. 101. sub-ch. 5, sec. 8, it is provided, that where the husband survives the wife, if he shall not, in his life time, reduce her dioses inaction into possession, or obtain judgment upon them, they shall devolve on her representative, and administration may be granted accordingly. ⁵¹⁶ A different rule has been supposed to exist, when choses in action instead of belonging to the wife at the time of marriage, accrue during coverture.

They are said to vest absolutely in ■ the husband, without being reduced into possession, and in the event of his decease do not survive to the wife. This question was presented, and very fully considered, in the case of Hayward vs. Hayward, 20 Pick., 517 . In delivering the opinion of the court, Dewey, J., says, at page 530: aIt seems to me, upon a careful review of all the cases in which this subject has been incidentally or otherwise before this court, that the adjudications are not of so controlling and decisive a character, as to preclude us from the full consideration of the question, upon general principles and with reference to the decisions of other judicial tribunals, and the opinions of learned commentators. The result of such a consideration of the question now presented for our adjudication, is a full conviction on our minds that there is no such distinction as to rights of survivorship by the wife, between those choses in action that accrue before and those that, accrue during coverture, as is claimed by the counsel for the administrator of the husband, but that, in either case, if the husband die without reducing them to possession, they survive to the wife.

Such I apprehend is the well settled law of England, and the same doctrine has been distinctly recognized in the States of New York, Pennsylvania, South Carolina and Virginia. It has had the sanction of Lords Hardwick and Tenterden, in England, of Chief Justice Marshall, Chancellor Kent, and many other eminent jurists in this country.” Concurring in the principle adopted in that case, we deem it unnecessary to present a minute examination of the various conflicting decisions upon the subject. But we will refer to 1 Williams on Ex'crs, 718, 723, sec. 3, (Ed. of 1849.) 1 Bright on Husband & Wife, 36, 37 and 38, sec. 2, (Ed. of 1849.) ■ In support of the plaintiff’s right of action, his counsel has referred to the following cases: State vs. Krebs, 6 H. & J., 31 ; Glasgow vs. Sands, 3 G. & J., 97; and Peacock vs. Pembroke & Clarke, 4 Md. Rep., 280 . But we do not consider them as in ⁵¹⁷ consistent with the view we take of the case before us.

In the first and third, the husband and wife were both Jiving; and although, in the