Hubbard v. Barcus

Bowie, J., delivered the opinion of the Court. The appellants, bjr their petition, filed in the Orphans’ Court of Caroline County, on the 14th of September, 1872, alleged that Frances A. Yanstavern of said county, had then lately departed this life intestate, being at the time of her death, possessed of a large and valuable personal estate, then in said county, and indebted to the petitioners, in a large sum ; that the deceased left a husband, Wm. S. Vanstavern, and three children, one of whom was Ellen T. Hubbard, the petitioner, and two others, William and Charles M. Barcus, the latter a non-resident. The petitioners prayed, that the said Wm. 8.

Yanstavern, the husband, and Wm. Barcus, the son, be summoned to show cause, why letters of administration should not be granted the petitioners, or some others, in case of refusal on the part of the defendants, to administer. The defendants appeared and answered, but without oath, averring that the deceased’s estate consisted of a few articles of household furniture etc., which devolved upon her surviving husband, by operation of law, without administration. They denied that the deceased was indebted at the time of her death, to the appellants; and further averred that the deceased being at the time of her death, a married woman, and leaving a husband surviving her, who is still ¹⁷⁸ living, all the personal property the deceased possessed, if it consisted of specific articles, acquired since the adoption of the Code of Public General Laws of 1860, devolved on the husband for life by virtue of sec. 2, Art. 45, thereof, without the intervention of an administrator; and if possessed at the time of deceased’s marriage, (which occurred in 1857,) or acquired after, and before the adoption of the Code of 1860, the same by virtue of the marriage and her death, became absolutely, in the absence of any contract or deed of settlement to the contrary, the property of the surviving husband.

That if the estate of the deceased consisted of choses in action, in existence before or subsequent to the Code, they devolved on the husband, by operation of law, if he reduced them to possession during his life, and that the appellants’ remedy, if the deceas'ed was indebted to them, was in Equity — the Orphans’ Court having no authority in law, to grant letters in such a case. No replication was filed to the answers, but the petitioners examined Ennalls Hubbard, one of the petitioners, on interrogatories, who deposed, that he was acquainted with the deceased; “she had right smart of personal property, and considerable debts due her;” that she was indebted to the witness in the sum of $3300, principal, and he believed, she owed his wife, between $200 and $300, Whereupon, the Orphans’ Court, on the same day passed an order, reciting that the petition, answers and testimony of Ennalls Hubbard, being duly considered, it was adjudged and decreed, that the petition filed by Ennalls Hubbard and wife, be dismissed with costs to the respondents, — “ the Court considering that no administration can be had upon the estate of Frances A. Yanstavern, during the life of her surviving husband.” From which order the appeal is taken. ■ It is not necessary to decide in this case whether, under, any circumstances, administration can be granted by the ¹⁷⁹ Orphans’ Court, on the estate of a married woman dying intestate, her husband surviving, hut confining ourselves to the facts presented by the record, to determine whether the order appealed from was correct. Although the answers do not expressly admit the intestacy of the deceased, and it has not been proved, it is necessarily implied from the nature of the defence, and the reasons assigned by the Court below for their order ; we shall therefore assume, it is admitted. The testimony of the petitioner, the only witness examined in the case, taken in connection with the interrogatories, and in its popular sense, must be understood as meaning, that the deceased owned at the time of her death, and died possessed of, personal property acquired after the adoption of the Code, (if acquired before, it would have been her husband’s,) and had owing to her, debts of considerable amount, and was indebted to the petitioner in large sums of money.

The husband, by virtue of the common law, or the English statutes which existed and were applicable to our colonial condition, prior to the adoption of the State Constitution, had the exclusive right to administer on the personal estate of his deceased wife. By the Act of Assembly of 1798, ch. 101, entitled an Act for amending and reducing into one system the laws and regulations concerning last wills and testaments, the duties of executors, administrators, etc., sub-ch. 5, sec. 8, it was enacted, “if the intestate he a married woman it shall not, as heretofore, he necessary for her husband to take out letters of administration, but all her chases in action shall devolve upon her husband, in the same manner as if he had taken out such letters; provided, that if he shall not, in his lifetime, reduce the said dioses in action into possession, or obtain judgment thereon, the said cho-ses in action shall devolve on her representatives, and administration may be granted accordingly.” ¹⁸⁰ The husband being at common law, jure 'mariti, owner of all the personal and real chattels of his wife in possession, the letters of administration were only necessary to enable him to reduce into possession, or recover, her dioses in action; and to these he became