Turton v. Turton

Mason, J., delivered the opinion of this court. Without remarking upon a fundamental question in this case, viz., the right of the plaintiff to enforce her alleged claim in an action at law, we will proceed to consider the principal issue involved in this controversy, which is the right of the plaintiff, by survivorship, or otherwise, to claim her distributive share of the estate of the late Joseph Fowler, of Louisiana, as against the legal representatives of her deceased husband. The case rests upon the concession that the payment of this distributive share to Messrs. Dufieff and Fowler, as agents, by the representatives of Fowler, from whose estate the money was derived, was valid, and the estate was thereby discharged ³⁸¹ from all liability to Mrs. Turton, or any one claiming through her.

Under such circumstances the question is, to whose benefit does this payment enure; whether to the plaintiff, by virtue of her survivorship, or as her separate estate, or whether to the estate of her husband ? The money was paid to these agents on the 2nd of May 1851, and Mr. Turton, the husband, died on the 5tli of the same month. It will readily be admitted, that if Dufieff and Fowler were the duly constituted attorneys in fact of Mr. Turton, the receipt of the money by the agents would have been equivalent to the receipt by him. This would have been, to all intents and purposes, a reduction into possession by the husband of the claim of the wife, and would preclude her from setting up afterwards any right to the same by virtue of survivorship.

But it is asserted that Dufieff and Fowler were not the agents of the husband, but were in fact the agents of the wife. If this were true, the payment to them would be regarded as payment to her. We cannot perceive that this view would vary the case in any material particular. If a debtor of a married woman pays to her during coverture the debt due, the payment enures to the benefit of the husband and the money becomes absolutely bis.

And in like manner the husband is entitled absolutely to all sums of money which may be received by a third person on her account during the marriage. Abbot and wife, vs. Blofield, Cro. Jac., 644. Bidgood vs. Way, 2 Sir Wm.

Black., 1236. And if the husband and wife authorise a third person to receive her chose in action, who accordingly does receive it, her right to survivorship is completely destroyed by such receipt, although it should never reach the possession of the husband, 1 Rol. Abr., 342; Clancey on Husband and Wife, 112; and so if husband and wife unite in a letter of attorney to another to collect a legacy, and he receives it, by that act the property becomes vested in the husband alone. Huntley vs. Griffith, Moore, 452.

Clancey, 112. We therefore do not think the question of survivorship is ³⁸² properly involved in this case. In fact there was no chose in action to survive at the time of the husband’s death. By the act of payment to Messrs.

Dufieff and Fowler, which was made in the lifetime of the husband, the obligation which constituted the chose in action was fully discharged by the debtors, and thus became extinct. In other words, it had thereby became reduced to possession, whether by the husband or wife was immaterial. The position taken by the appellee’s counsel, that the power of attorney furnishes evidence that the husband did not intend to reduce this chose into possession, cannot be maintained. This result was not dependent upon the intention or wish of the husband, but was the legal consequence of the act of payment.

The debtor had a right to discharge his debt, and by the act of payment the chose in action was gone, and with it all its incidents, including the right of survivorship in the wife, and the result would be the same whether the agents to whom the payment was made were the agents of the husband or wife, as we have already shown. Unless therefore we can discover that this money, which was derived from the Fowler estate, was to be treated as the separate estate of Mrs. Turton, we must regard it as having absolutely vested in the husband, by virtue of the payment to Dufieff and Fowler. There is no pretence that there was a separate estate created in the wife, by reason of the source or mode by which she derived this money, as if it had been a legacy to her separate use. In this particular there is nothing to distinguish this case from an ordinary and unconditional inheritance of money by a wife, which is always subject, as other dioses in action, to be reduced into possession by the husband, and which W’ould thereby become vested in him.

It only then remains for us to inquire, whether there was a consummated purpose on the part of the husband himself to settle this fund upon his wife to her sole and separate use, after it had been received? That it was in his power to have done so we do not deny; but the inquiry is, did he intend to ³⁸³ exercise that power, and has he effectually done so? From the facts, as