
    
      L. Boozer, administrator, vs. Mary M. Addison et al.
    
    Where a sealed note was given to a married woman during coverture for money, the earnings of a school kept by her, and the husband never laid any claim to it; held that, upon the death of the husband, the note survived to the wife, even as against the creditors of the husband. •
    Upon choses accruing to the wife during coverture, the husband may sue alone, or he may concede to the wife an interest in them and join her in the action; and if he make no exclusive claim by suing in his own name; or join his wife in the action, but die before judgment, or after judgment but before satisfaction ; the chose, or the judgment, as the case may be, survives to the wife and becomes her property.
    
      Before Johnston, Ch., at Lexington,
    
    
      June, 1844.
    
      The Chancellor. The questions to be decided between the parties still before the court, depend upon the following circumstances :
    
      On the 17th of September, 1840, the defendants, John Meetze, Caleb Bouknight and Edwin J. Scott, executed their sealed note, whereby they jointly and severally bound themselves to pay to the defendant, Mrs. Addison, the sum of $1260.64, one day after the date thereof.
    Mrs. Addison, the obligee, was at that time a femmecouverte; her husband not having died till the 27th of October, 1841.
    The note was delivered to the wife at its execution, and remained in her possession till the death of the husband, and ever afterwards, until it was settled and taken up by the obligors. This settlement took place the 8th of March, 1842, after administration to the husband had been granted to the plaintiff.
    The settlement was entirely between the wife and Meetze and Bouknight, two of the makers, of the note, the administrator having nothing to do with it: and it was effected by these obligors receipting and giving up to Mrs. Addison sundry notes ahd accounts, which the said Meetze alone, and the said Meetze and Bouknight, as partners, held against her deceased husband ; to which were added the amount of a note given by said deceased to Mrs. Arthur ; an account against him in favor of Meetze, Har-man & Co., and sundry small accounts against Mrs. Addison herself: the whole amounting to $1891.13, at the date of the settlement. These were given for the sealed note held by Mrs. Addison.
    It appears from the accounts of the administrator of Mr. Addison, that even if this sealed note be regarded as parcel of his intestate’s estate, the assets will fall far short of satisfying the demands against it; and that after applying them to the bond debts, very little, if anything, will remain for the simple contract creditors.
    Under these circumstances, the creditors at large, and especially the bond creditors of the intestate, (all being before the Court as parties,) have advanced the claim that the sealed note, held and given up by Mrs. Addison, as already stated, was parcel of her husband’s estate^ and should be added to the assets • and they contend that in the settlement, Meetze and Bouknight have received a greater amount, upon the demands which they held on the deceased, than they were entitled to receive^ in a regular course of administration.
    By a previous decree of Chancellor Dunkin, Mrs. AddisOn is exempted from all liability for having transferred the sealed nóte to Meetze and Bouknight. The case remaining for my decision, concerns the two latter defendants, and Scott, the surety.
    The first question is, whether the sealed note belonged to Addison or Mrs. Addison.
    At law, no doubt it belonged to the husband ; and this I do not understand to be controverted; but it is argued that, under the attending circumstances, equity will not so regard it.
    The circumstances are these: Mrs. Addison had, lor eleven or twelve years after her marriage, kept a school for young ladies, and this note included all her net earnings; which she had from time to time loaned out; the note having been taken for the entire sum, which at its date appeared to be in the hands of Meetze and Bouknight, the borrowers, (Scott being only their surety.) From an early period after their marriage, a well understood arrangement existed between Mr. and Mrs. Addison,’ that each was to pursue his own vocation ; he to attend to his profession and his office, and she to her school. He was to be responsible for his accounts, and she for hers ; and he was to have what he made in his business, and she what arose from hers. Although the husband, uppon a few occasions, attended to the wife’s affairs, as her agent, he never commingled their accounts ; but constantly declined, on the one hand to pay her debts, and on the other, to take her earnings. On every occasion he made known his full assent to her accumulating what she could by her pursuit, and enjoying the benefit of it; and as a proof of this, it is in evidence that he drew this very note and made it payable to his wife.
    It is not the wife who is now before the Court, claiming to be protected in the possession of this note, nor is it her assignee; but I apprehend that the obligors who have taken it up, are to be regarded in as favorable a light as either ; that is to say, that if Mrs. Addison could be supported in her claim, so may these defendants. But after a careful consideration of all that has been advanced in argument, I confess I do not see upon what ground this court can sustain them.
    The point has been argued with zeal and much ingenuity, and with an extensive reference to authorities; but there are one or two positions which, in my opinion, are decisive of it.
    The unity of husband and wife is the leading maxim of the doctrine. The husband is the head of the wife, and her capacity is merged in hi m. He is responsible for her necessary debts ; and has a property in her, extending to all her exertions and all her earnings. Unless in some rare instances, as where he is ex-Bed, or has abjured the realm, or has separated from her, or where she has, according to the statute, become a sole trader, she stands upon this footing.
    “ If,” says Mr. Clancey, “ the legal maxims, that the husband and wife are but one person, and that the property of the wife is vested in the husband by the marriage, were mitigated in no instances, but these just enumerated, a married woman would be one of the most helpless and unprotected objects in society. For, if her husband be resident within the kingdom, she is completely at his mercy and under his control; as he may desert her, or turn her out of doors, and, whatever fortune she may have brought him, he will be liable only for necessaries ; and even of these he may deprive her ; for he may be prodigal, and waste that fortune, or he máy be unfortunate and lose it, and the law affords her no redress.”
    It is true, that a Court of Equity will, in some instances, interfere to prevent or mitigate the hardships which these maxims of law would otherwise produce. But the cases are generally confined to instances where property is given or conveyed to the wife, during coverture, for her separate use, in which instances, this Court will see that the intention of the gift or conveyance is fulfilled. Or if the husband is about to receive the equitable interest of the wife, without making an adequate settlement, he will be compelled to provide for her; and such like cases.
    The Court, indeed, secures the rights of the wife in her separate property ; and her savings out of hei separate property, are hers. But this is not a case of savings from a separate estate.
    The wife may, also, according to Clancey, (Book-1, ch. 3, p. 52, edit. 1819 ; p. 60, id.,) claim the benefit of an allowance made her by her husband, before ol‘ after marriage. But this depends upon circumstances. The provision is conclusive, as against the husband and his personal representative. But whether good against his creditors, depends upon another consideration: and that is, whether the provision was made before marriage, or after-wards, in pursuance of articles ; or whether during coverture, without the foundation of ante-nuptial articles. If the provision is of the latter kind, it is regarded as voluntary, and fraudulent against creditors, and cannot be sustained.
    Therefore, if even Mrs. Addison claimed her earnings in virtue of a written contract, executed by her husband in her favor, but entered into without ante-nuptial articles to support it, his creditors would have the right to avoid the instrument. Much mote ate they entitled to do so, where every thing lies in parol. No marriage contract, according to the express enactments of our statutes, is valid with us, unless duly registered ; which, of itself, destroys the validity of all parol agreements, such as that set up here, whatever consideration may be brought to sustain them.
    I must, therefore, consider this case as standing upon the same footing as if these obligors had given the note to Mr. Addison in terms.
    The case will be referred to the commissioner, and I have but few directions to give him for his government, in taking the account, as respects these defendants.
    They will be entitled to discount against this note, all the demands which all the obligors, or any one of them, held against the intestate, at his death, but a demand in the name of any two of them, or any demand which was acquired after the death of the intestate, will not be discountable against it. I am to be understood, also, that it will be no obstacle to the discount offered, that any of its items may consist of the notes or accounts given up to Mrs. Addison, in payment of her note.
    It will be no objection to the demand offered for discount, that it is of a class to which the assets in the hands of the administrator will not extend, because no man is bound to pay a single cent to an estate, while that estate is indebted to him. The sum which he really owes, is the balance which may be due after his own demand is satisfied.
    The debts due by these defendants, will consist of the amount of this sealed note, which they have received, and other demands, which the intestate may have held at his death, against them ; and against these, they will be entitled to. discount any demands which they held against him at his death, accommodating the discount to the claim against which they offer it, so that the discount shall correspond to the nature of the liability to which it is opposed.
    Other points are reserved until the report comes in.
    Ordered, that the accounts be referred to the commissioner.
    The defendants, Meetze, Bouknight and Scott, appealed from the decree, and moved to reverse or reform the same, on the following grounds, viz:
    1. That the note was the property of the wife ; was made payable to her, personally, for her separate use, by the act and with the consent of the husband, and if the legal title was in him, it was as trustee for his wife.
    
      2. That such trust was not a fraud upon the husband’s creditors, because the wife was induced to create the fund upon the husband’s promise that it should enure to her separate use. It was not the appropriation of his estate to which his creditors were' entitled, inasmuch as it did not exist when the husband’s agreement was made.
    3. If this was an agreement between husband and wife, after-marriage, yet it cannot be regarded as a marriage settlement within the terms of the statute. It is respectfully submitted, that no-contract can be held to be a marriage settlement, within the per-view of the statute, which requires the same to be recorded, unless it embrace property in esse, whereof a schedule may be made.
    4. There was valuable consideration ; the husband was to be exonerated from the payment of the wife’s debts, and the expenses of her establishment, which accordingly he always declined to pay.. They were paid by her out of the proceeds of her own labor, which she consented to undergo, upon the faith that her earnings should be her private and separate estate.
    5. It is an executed contract, and does not involve any element of fraud. The husband avowed it publicly, upon every occasion, and it would be a fraud upon those who dealt with the wife upon the faith of it, if the husband, while living, had been allowed to controvert it. It is respectfully submitted, that the husband’s creditors only stand in his place, and that the obligors, creditors of the wife, occupy a stronger position than the wife herself.
    
      W. F. Desaussure, for the appellants.
    Boozer, contra.
   Curia, per Johnston, Ch.

The reasoning of the decree rests entirely upon the assumption, that a bond or sealed note given to a woman during coverture, is, at law, the unqualified property of her husband, and if this assumption is sustainable, I do not perceive any error in the conclusions which the decree draws from it.

I assumed this position with the less hesitation, because it seemed to be conceded in the argument, and because it had been conceded in Herbemont vs. Herbemont by eminent counsel, whom I endeavoured to draw into the discussion of it.

But it has been discussed here ; and I am satisfied that the position, so far from being sustained, is contradicted by the best authorities.

The result of the examination is, that the husband’s right of property is qualified, and dependent altogether upon the steps he may take to assert it.

The right of the husband to the choses of the wife may be determined by considering the remedies which the law gives him in relation to them; and the incidents which pertain to the remedies he may adopt.

To the choses belonging to the wife before the marriage, the husband can lay no claim in his own name, or in his own right; but must join the wife in any action he may bring for reducing them into his possession. If he die before judgment, the chose survives to the wife ; or if he obtain judgment and die before it ■is satisfied, the judgment enures to the wife as survivor.

Upon choses accruing to the wife during coverture, the husband may sue alone, or he may concede to the wife an interest in them, and join hei in the action; and if he make no exclusive claim by suing in his own name ; or join his wife in the action, but die before judgment, or after judgment but before satisfaction ; the chose, or the judgment, as the case may be, survives to the wife, precisely as in the case of choses accrued to her before the marriage. ,

The only difference between ante-nuptial and post-nuptial choses, therefore, is, that the husband must join the wife in the action for the former, but has an option whether to join her, or sue alone for the latter. If he has not reduced them before his death, they both equally go to the wife by survivorship.

In this case, Mr. Addison neither sued in the one form nor the other ; nor made any claim whatever to the sealed note, the subject of the decree; — and the consequence, (if the positions I have stated be true) is, that upon his death, it belonged, in law, absolutely to his wife.

For the truth of the positions, I might refer to two elementary writers, in common use.

Chitty, speaking of choses accruing after the coverture, says (1 Chit. Pl. 18) “ where the wife can be considered as the meritorious cause of action, (as if a bond or other contract under seal be made to her separately, or with her thusband ;) or if, in the case of her personal labour-, there be an express promise to -her, or to her and her husband, she may join with the husband, or he may sue alone; and it has been held, that she may be .joined in -all cases, upon an express promise to her.”

The effect” says he (Id. 20,) of joining the wife in an action-, when the husband might sue alone, is, that if the husband die whilst it is pending, or after judgment, and before it is satisfied, the interest in the cause of action will survive to the wife, and not to the executors of the husband: though, if he sued alone, she would have had no interest.”

Mr. Stephens (1 N. P. 744) lays down the same positions.

Premising that where the husband and wife join in an action, founded upon the services, (fee. of the wife, and there is no express promise in the case, it must appear in the declaration that the services were rendered by her, so as to show that she is the meritorious cause of the suit; but that if the action is founded on a note or bond to her, or upon any other instrument importing consideration, no such averment is necessary, (1 H. Bl. 144; 2 M. and S. 393) I proceed to show from a few cases, promiscuously taken from both the law and equity jurisdictions, that the elementary writers already quoted are borne out in the propositions laid down by them.

It is true, that there are a few cases (Bunb. 188; 2 Eq. Ab. 1; 2 Bl. R. 1236) to the contrary: but the current of cases, especially those of later date, are with them.

Thus in Brashford vs. Buckingham, (Cro. Jac. 77) it was assigned for error that the action was brought by husband and wife upon a promise made to the wife after coverture, in consideration that she should cure a wound; and it was insisted that the husband alone should have sued, it being a personal duty which accrued during coverture. Sed non allocatur, being grounded upon a promise made to the wife, upon a matter arising from her skill; so she is the cause of the action, and so the action in both their names is well enough ; and such an action shall survive to the wife.

Philliskirk vs. Pluckwell, (2 M. and S. 393.) Assumpsit by-husband and wife on a promissory note given by the defendant to the wife during coverture. It was objected that the husband should sue alone, as it did not appear on the face of the note that it was on account of any meritorious consideration proceeding from the wife. Lord Ellenborough said the note to her imported a consideration proceeding from her; “ and in Co. Lit. 120, a, and 1 Roll. Abr. Baron and Femme, H. pl. 6 and 7, mentioned by my brother Dampier, a difference is taken between a thing that is not merely a chose in action, and one that is: and, therefore, in case of a bond made to the wife, if the wife dieth, the husband shall not have it, without taking administration, because that is merely in action. So here the note is made to the wife; and it imports consideration, unless the contrary be shewn.” Bayley, J. concurred with him: and Dampier, J. held that the husband might join his wife in the action ; and said “there must be some inaccuracy in Bidgood vs. Way (2 Bl. R. 1236) in one part; because the court say that no promise to a married woman, either express or implied, gives her any interest; and yet they afterwards admit upon the cases, that where a promise is so expressly stated, the husband may assent to give the wife an interest in the contract and join her in the action. In Day vs. Pargrave, according to my note, Lee Ch. J. said that where a bond is given to the wife during coverture, no action will lie for it by the wife, solely, but they may have a joint action during their lives; or the husband may bring such action during the coverture, in his own name; yet if he does not, it survives to the wife.”

In Oglander vs. Baston, (1 Ver. 396) it is said by the Lord Chancellor, “ if there be a bond debt' due to the wife, the husband may sue alone, without joining his wife; but in case the wife was joined in the action, and judgment is recovered, the judgment will survive to the wife.”

Schoonmaker vs. Elmendorf (10 Johns. R. 49.) Scire facias brought by the wife’s executors to revive a judgment, which had been obtained by husband and wife on a bond given to both. The wife survived the husband, and it was held, that they had well joined in the original action; and that the judgment survived to the wife.

Coppin vs. -- (2 P. Wms. 496.) Bill by husband and wife: plea by defendant, and plea overruled, with £5 costs. Husband dies ; held, that these costs survive to the wife. It was said in the argument, “ that a bond given to the husband and wife, during the coverture, on the husband’s dying first, did not survive to the wife.” But “ the Lord Chancellor denied this, and recie, for clearly it does survive to the wife, as all other joint dioses in action do; though it is true in this case the husband may disagree to the wife’s right to it, and bring the action on the bond in his own name only; but till such disagreement, the right to the bond is in both the husband and the wife, and shall survive.”

I shall close this examination with the case of Nash vs. Nash (2 Mad. R. 411, first Am. Ed.) decided in 1817, in which most of the cases are cited and commented on. The father of a married woman drew a cheque in her favour, upon his bankers, for £10,000. The bankers gave her a promissory note for the amount; which she delivered to her husband ; and he received £1000 upon it, and continued to receive the interest on the remaining £9000 up to the time of his death. It was held, that upon his death, she was entitled to the note, as a chose in action which had survived to her. - .

It seems to me that these cases are sufficient to settle the question as to the right at law.

Still it may be said, that though the doctrine be as stated, as between the husband, or his representatives, and the wife, it must be otherwise as between the latter and the creditors of the former. That it may lead to fraud: — for if a bond or note, executed in the name of the wife, be allowed to survive to her, it will be easy for the husband, when the consideration really proceeds from him, and not from the wife, to take the obligation in her name, and thus secure a benefit to her at the expense of his creditors. But there is no such danger. If the chose arises in truth, as in this instance, from the wife as the meritorious cause, there is no fraud in allowing her the benefit of it; and if it arises from the funds or property of the husband, the proof of that fact will demonstrate the fraud and prevent its being carried into effect.

It is ordered, that the decree be reversed, and the bill, pertaining to this matter, as against the defendants, Meetze, Bouk-night and Scott, dismissed. The costs to be paid out of the estate of Mr. Addison before distribution.

Johnson and Dunkin, CC. concurred}.  