
    James G. McGee et uxor vs. E. L. Ford et al., Administrator of David Ford.
    Where a wife’s distributive share in her father’s estate accrued after her marriage, it inures to the husband alone, and he can sue for it, without joining his wife.
    Where the distributee of an estate is also indebted to that estate for property purchased at the sale of its effects, which indebtedness has been reduced to judgment, the probate court will order the distributive portion of such indebted distributee, to be credited on such indebtedness.
    G., prior to the passage of the act for the preservation of the rights of married women, married F■, who was the daughter of D. F.; D. F. died after her marriage, and G. applied to the probate court, in his own name, for his wife’s distributive share in her father’s estate ; G.’s wife filed a counter petition, claiming the distributive fund in her own right, and averring the insolvency of her husband: held, that G. was entitled to the fund, in his own right, to the exclusion of his wife.
    In error, from the probate court of Holmes county, Hon. John F. Williams, judge.
    In the month of September, 1841, James G. McGee, one of the plaintiffs in error, filed his petition in the probate court of Holmes county, against Everett L. Ford, and James S. Barnes, the administrators of David Ford, deceased, praying his distributive portion of the same, which he claimed in right of his wife, one of the distributees. At the first term of the court, after this petition was filed, Mary Ann McGee, the other plain-tiffin error, and wife of the other petitioner, filed her petition, in which she alleged that David Ford was her father, and that, as one of his heirs, she was entitled to distribution of his estate. In her petition she prayed to be allowed to prosecute, as a co-complainant, with her husband. This petition was allowed, and afterwards amended by her, to the effect, that her husband was indebted beyond his means of payment, and that he had no permanent means of supporting her; and she prayed that whatever might be due to her, be decreed to her separately, and independently of her husband. She made her co-heirs, as well as the administrators, defendants, and asked a final settlement of the administration account, and distribution. The administrators answered, and setup, among other things, that Mrs. McGee had received from her father, in his lifetime, a portion, and that McGee was indebted to the estate of David Ford, deceased, for property purchased by him, at the administrator’s sale of the effects of David Ford, since his intermarriage with his co-complainant, and asked, that whatever balance might be due to him, should be set off against an equal amount of the debt due by him for property purchased, as aforesaid. They stated, also, that the complainants were intermarried, and David Ford had died prior to the year 1839; in which year the act for the preservation of the rights of married women was passed.
    No proof was taken on either side; the cause being submitted on the petitions and answers.
    The probate court decreed, that, of the moneys and effects then in the hands of the administrators, unadministered, there was a balance in favor of McGee and wife, of $1272 79, which sum, it was decreed, should be credited upon the debt due by McGee to the estate, and allowed him also, a further credit of $772 34, as his distributive portion of that debt, and disallowed, altogether, the claim of the wife. From that decree McGee and his wife prosecute this writ of error.
    
      Lands dale ¡ for plaintiffs in error.
    It is contended for the plaintiffs in error, that the probate court had no authority to go further than to settle the amount to be distributed, and that it was beyond the jurisdiction of the court to direct that the debt of one of the plaintiffs should be paid, and the wife was properly a party to the proceeding, and was the real owner of the debt. If the probate court be .considered as a court of chancery, it would not, most assuredly, allow an insolvent husband to possess himself of the wife’s money, or debts, and leave her unprovided for. It is a universal rule, that if the husband have to seek the aid of a court to recover the wife’s debts, that she will be allowed a suitable provision out of the fund due to her. A reference to authority cannot be necessary in this cause. A reversal of the decree of the probate court, is respectfully asked.
    Brooke, for defendants in error.
    It is contended for the defendants in error, that the probate court has a right to disregard the husband’s rights, and make' the settlement alone on the wife, when its aid is sought to enforce distribution. But all the cases cited to support this position, are from chancery, and arise from the peculiar and remedial powers of that court. The principle cannot be applied to the court of probates, upon which, by our law, is devolved the duty of making distribution, a duty which must be performed according to the strict letter of the law. It has no right to prescribe terms. If the husband had a right to his wife’s interest in the personalty of her father’s estate, the court of probates had no power to prescribe such right. See 3 How. 394. By this case it is determined that a husband is entitled to a vested legacy of the wife, though not reduced in possession during coverture: by the same rule he would be entitled to her distributive share.
   Mr. Justice ThacheR

delivered the opinion of the court.

McGee filed his petition in the probate court of Holmes county, for his distributive share of the estate of David Ford, which he claimed in the right of his wife. Subsequently, his wife filed her petition in the same court, setting forth her husband’s insolvency, and praying a decree of the distributive share to her sole and separate use. The administrators answered, that McGee was a large debtor to the estate, for property purchased at its sale; that his wife had received a portion from David Ford, during his lifetime; and that her marriage with McGee occurred before the passage of the act for the protection of married women. H. & H. 332. The court decreed McGee his distributive share of the estate, but ordered it to be credited upon the debt which he owed the estate ; and disallowed the petition of the wife. The debt due by McGee to the estate, had been reduced to a judgment.

The record shows that the distributive share of McGee accrued after his marriage, and therefore it inured to him alone, and could be sued for by him, without joining his wife. Lowry v. Houston, 3 How. 394; Wade v. Grimes, 6 Ibid. 425. McGee, also, being indebted to the estate, upon judgment, a credit upon that judgment, to the amount of his distributive share, may be received as a payment to him of so much money. Should he institute his suit against the administrators for his distributive share, they could properly, in a plea of payment, set off the amount of the judgment due by him to the estate. In view of such principles, the probate court did not err in decreeing the payment of the distributive share, in the shape of a credit upon the judgment.

Judgment affirmed.  