Ex-parte Lee

Alvey, C. J., delivered the opinion of the Court. This appeal is from the Orphans’ Court of Baltimore City, and the question is, whether the surviving husband of a deceased wife, who died intestate and without children or descendants, and owing no debts, is required to obtain letters of administration upon the estate of his deceased wife, to enable him to collect a chose in action due the wife at the time of her death. The facts of the case are these, as presented by the record. Mrs. Sarah H. Lee, the wife of William Lee, the appellant, died intestate on the 24th of December, 1891, leaving no children or descendants; and, as it is alleged, and conceded as a ‘fact, by the appellant, she owed no debts for which she was liable at law.

That, at the time of her death, she was entitled to certain credits on ¹¹⁰ the hooks of the Savings Bank of Baltimore; and that, after the death of the wife, the surviving husband made proper demand of the bank for payment, informing the bank of the facts of the case, but the bank refused payment, “upon the ground that it was under no obligation to assume, and was not willing to assume, the risk of there being outstanding debts of the deceased wife, of which the surviving husband might be without knowledge, and required that letters of administration should be taken out on the estate of the deceased wife, in order that payment might be made to her duly constituted administrator.” The surviving husband then made application to the Orphans’ Court, representing the facts by petition, for letters of administration upon the estate of his deceased wife; but the Orphans’ Court, by its order of the 30th of January, 1892, refused the application, upon the ground that, by the terms of the statute, there was no requirement or necessity for administration upon the estate of the deceased wife, on the facts as disclosed. The question thus presented depends upon the terms of the statute law of the State, as it stood prior to the 7th of April, 1892. By the common law, the husband, jure mariti, became owner of all the personal and real chattels of the wife in possession, and letters of administration were only necessary to enable him to reduce into possession, or recover, her choses in action; and to these he became entitled absolutely, if reduced into possession in his life-time, whether before or subsequent to the death of the wife. Hubbard and Wife vs. Barcus, et al., 38 Md., 180 .

By the Act of 1798, ch. 101, sub-ch. 5, sec. 8, as embodied in the Code of 1860, (Art. 93, sec. 32,) it was provided that “if the intestate be á married woman it should not, as theretofore, be necessary for the husband to take out letters of administration, but all her choses ¹¹¹ in action should devolve upon her husband in the same manner as if he had taken out such letters; provided, that if he should not, in his life-time, reduce said choses in action into possession, or obtain judgment thereon, the said choses in action should devolve on her representatives, and administration might he granted accordingly. ” This section of the Code of 1860, was re-enacted by the Act of 1818, ch. 268, with the additional provision, “that in all cases where the husband should he entitled to a life estate only in the property of his wife, upon her death there should he administration on her estate, and the personal property should he held subject to the order of the Orphans’ Court,” &c. Therefore, neither under the Act of 1198, as codified in the Code of 1860, nor the Act of 1818, was it necessary for the husband to take out letters of administration upon the estate of his deceased wife, where she died intestate and without children or descendants, and the husband was entitled to her personal estate, including her choses in auction, under the provision of the Code. In such case, it was his right to reduce the choses in action into possession, either by suit or otherwise, without administration. Section 9 of sub-ch. 5 of the Act of 1198, made section 12 of Art. 45 of the Code of 1860, and now forming section 13 of Art. 45 in the present Code, provides “that a husband bringing a personal action to recover in right of his wife after her death, may declare specially, setting forth, in the usual manner, how the debt or right accrued to his wife, and stating further, that by marriage, the debt or right devolved on him.” No administration was necessary, in a case like the present, to perfect the title of the husband, or to enable him to maintain suit for the recovery of any part of the personal estate of the deceased wife; and it was only where the husband, in his life-time, failed to reduce into possession the choses in action of the wife, that the law, ¹¹² upon his death, devolved the title to such dioses in action upon the representatives of the wife, and made administration on her estate proper or necessary.

Thus stood the law until repealed, and re-enacted as modified, by the. Act of 1882, ch. 477, now embodied in the present Code, as section 32 of Art. 93. That section, or the part of it that is material to this case, is as follows: “If the intestate be a married woman, and shall leave