
    Alexander C. Henderson, Administrator of Joseph Leroux, deceased, vs. Bazille Guyot.
    
      Wade v. Grimes, 7 How. 425, cited and confirmed.
    If the right of a married woman to the distributive portion of a deceased person’s estate accrue after marriage, the husband may sue for it alone.
    If the husband sue alone for his wife’s distributive portion in an estate, and it do not appear by proof that the right of the wife accrued before coverture, and the probate court decree in favor of the husband, the presumption will be in favor of the correctness of the decision of that court.
    If the probate court, during the life-time of a wife who is a distributee of an estate, decree the wife’s distributive portion to be paid to the husband on his sole petition, and the wife die before the money is paid to the husband, the death of the wife will not affect the right of the husband to such distributive portion.
    Appeal from the probate court of Adams county ; Hon. Thomas Fletcher, judge.
    At the May term, 1840, of the probate court of Adams county, Bazille Guyot filed his petition, representing that his wife, Francoise Leroux, was the sister and sole heir of Joseph Leroux, deceased, and prayed that Alexander O. Henderson, administrator of Leroux, be ordered to pay over to him, as heir in right of his wife, of said Leroux, all the estate (which was in money) of said deceased, and which was at the time of filing said petition, or would be thereafter in his hands as administrator. After due publication having been made, citing all persons interested in the distribution of said estate, to be and appear on a day therein named,- to answer said petition, the judgment pro confesso was entered in the case at the December term of said court, 1842, and upon due proofs having been made to the court substantiating the right of said Guyot’s wife to a distribution of said estate, it was at the January term, 1843, of said court, ordered that Henderson pay over to Guyot, or his lawful attorney, all the estate of said Joseph Leroux, deceased, upon his giving a refunding bond.
    It did not appear, however, in proof, when the right of Mrs. Guyot accrued to her distributive portion' of her brother’s estate .; whether before or after her intermarriage with Guyot.
    At the October term, 1843, of the court, the estate not having been paid over to Guyot, in consequence of his failing to give a refunding bond, the administrator, Henderson, represented to the court, that since the decree he had received information of the death of Francoise Leroux, the wife of Guyot, leaving children of her and the said Guyot; that he had presented his final account, and was then ready to pay over the estate of Leroux without a refunding bond, and asked of the court whether Guyot was entitled to receive the estate under the decree previously made, or whether his children, begotten of said Francoise Leroux, would not be entitled to the same as her heirs. The court decreed that the estate should be distributed according to the decree made at the January term, 1843, and ordered Henderson to pay over the estate to Bazille Guyot, as heir in right of his wife, of said Joseph Leroux, deceased, without a refunding bond. Whereupon, Henderson prayed and prosecuted this appeal.
    Carson, for appellant.
    According to the statute of this state respecting descents, (H. & H. 393, 394,) we think that the children of Bazille Guyot, by his wife Francoise Leroux, are clearly entitled to the estate of Joseph Leroux, deceased.
    
      McDannold and Matthewson, for appellee.
    We think, from a reading of the record in this case, it will appear that Bazille Guyot is the only person entitled to the property of Joseph Leroux, deceased. The decree ordering a distribution, and the property to be delivered to B. Guyot, as heir of Leroux, in right of his wife, was made during the lifetime of the wife, and he was only prevented from getting possession from his inability to give a refunding bond. In 6 Johns. 110, it was held that a husband who survives his wife, is entitled to her choses in action, whether reduced into his possession in her lifetime or not. The estate in this case consisting altogether of money, we think, upon the principle decided in the above case, that Bazille Guyot is entitled to the estate. See case of Elliot v. Collins, 3 Atk. 527 ; Cast v. Russ, 1 P. Wms. 381.
   Mr. Justice Clayton

delivered the opinion of the court.

This is an appeal from the probate court of Adams county.

Guyot filed his petition for a distributive share of the estate of Joseph Leroux, deceased, in right of his wife, which was decreed to him at the January term, 1843, of said court. At the following December term, the administrator filed a petition, stating the death of Mrs. Guyot, and asking in effect the decree to be set aside on that ground. This was refused, and an appeal taken to this court.

Almost every point in this cause was discussed and decided in the case of Wade v. Grimes, 7 How. 425. It does not appear, in this case, whether the right of the wife to the distributive share accrued before or after her coverture. If it accrued after-wards, then the petition was properly filed by the husband alone. In the absence of proof that the right accrued before marriage, we are bound to presume in favor of the correctness of the decision in the court below. The right was therefore in the petitioner, and upon the death of his wife, there was no change of that right.

The order of the court below will be affirmed.  