
    Robert Curry v. Benjamin Fulkinson’s Executors.
    A husband can not collect a legacy in his own name and in his own right, accruing to the wife during coverture, after her death.
    This is a bill in chancery, reserved from the county of Coshocton.
    
      The bill alleges that Benjamin Fulkinson, by his last will and testament, dated June 17, 1841, bequeathed to his daughter Margaret $50, and appointed the defendants, Thomas Fulkinson and William Sturman, his executors ; that *said executors had the will duly proved September 24, 1841, and reduced to possession the effects of the testator, which are more than sufficient to pay all debts and legacies; that the complainant intermarried with said Margaret prior to the death of the testator; that said legacy accrued to said Margaret during coverture, and that she died without said legacy having been reduced to possession or discharged by payment to the complainant, or to said Margaret; that said executors refuse to pay said legacy to the complainant, although often requested; and prays decree of payment of said legacy against said executors to the complainant.
    To this bill the defendants demur, and the questions raised upon this issue are reserved for decision in this court.
    J. M. Love, for complainant:
    The question arising upon this demurrer is, whether a chose in action accruing to the wife, during coverture, survives to the husband ; and not, as has been supposed, whether a chose in action in this predi camón t vests, absolutely, in the husband. It is by no means essential to the'right of survivorship in the husband, that the chose in action should vest absolutely in him. It is maintained on the other side, and I think justly, that a chose in action, accruing to the wife during coverture, survives to her in the event of her outliving her husband; yet no one pretends that she has an absolute interest; but, on the contrary, it is quite clear that her interest is qualified by that of her husband.
    There are, indeed, respectable authorities which go to the full extent of deciding that dioses in action accruing to the wife, during coverture, vest absolutely in the husband, and go to his personal representative in case he outlive his wife; thus cutting off the right of survivorship in her altogether. Thus, in the case of Griswold v. Penniman, 2 Conn. 564, in which this very quostion was before the Supreme Court of1 Connecticut, *they say that, “ as to property of the wife, accruing during coverture, the same rule is applicable, excepting in regard to dioses in action ; these vest absolutely in the husband, on the principle that the husband and wife are but one person in law, and her existence, in legal consideration, is merged in his ; lie’ may, in such cases, bring a suit in his own name, without joining his wife. This clearly proves that the chose in action vests in him absolutely ; for if the right was in the wife, she must necessarily join in the suit. Where a bond or note is given to the wife, the husband can maintain an action in his own name; the consequence then is, that if the husband die before the wife, such choses in action shall go to his executor or administrator, and they do not survive to the wife; for where property has been absolutely vested, there can be no survivorship.”
    In the case of Capp v. Stoughton, 10 Pick. 463, the question, in the language of the court, was, “whether the profits of her (the wife’s) real estate, during the marriage, belonged absolutely to the husband, or' whether, as they were not actually reduced to possession by him, an action did not survive to the wife to recover them,” after remarking that it would be an unprofitable labor to reconcile the conflicting opinions; the court say, “the better opinion seems to be that these profits belonged absolutely to the husband ; that he bad a right to sue for them alone, and that no right of action survived to the wife,” and the decision of the case was in accordance with this opinion.
    In the case of the Commonwealth v. David Manly and Lot Leach, 12 Pick. 173, the Supreme Court of Massachusetts again affirmed the same doctrine in the most explicit manner. The court say, “ even the earnings of the wife so entirely belong to the husband, that he only can give a discharge of them, and must sue for them in his own name without joining the wife;” again, “the same principle applies to all property which accrues to the wife during coverture. A legacy given to the wife, vests absolutely in the husband, and he may release *it either before or after it becomes payable.” “So a wile’s distributive share in an intestate estate vests in her husband.”
    The same doctrine is laid down in the most unqualified terms in Reeve on Dom. Relations, 60. So in Shuttleworth v. Noyes, 6 Mass. 229.
    In Goddard v. Johnson, 14 Pick. 352, the court say, “ it is a well-settled principle, that a'chose.in action accruing to husband and wife during coverture, vests absolutely in the husband.” This was a suit brought by the surviving husband, to recover a legacy bequeathed to his wife during coverture.
    But, notwithstanding these high authorities, it must be admitted that the weight of authority is against this doctrine, so far as it goes to cut off the right of survivorship in the wife to a chose in action in this predicament. It has been decided in a great number of cases, of most commanding authority, that the wife, if she survive her husband, is entitled to all choses in action which accrued to her during coverture. It would be quite superfluous to do more than cite the authorities. Garforth v. Bradley, 2 Vesoy, Sen. 676; Elliott v. Collier, 1 Wilson, 618; Wildman v. Wildman, 9 Ves. 175 ; Baker v. Hall, 12 Ves. 496; Richards v. Richards, 2 Barn. & Adolph. 447; Nash v. Nash, 2 Madd. 133; so Dane’s Abridgment, 342, 344; Gallego v. Gallego, 2 Brock. (Marshall, C. J., presiding,) 285; Wallace v. Talliaferro, 2 Call, 447 ; Lodge v. Hamilton, 2 Serg. & Rawle, 491; Wintercast v. Smith, 4 Rawle, 177; so Harleston v. Lynch, 1 Desaussure, 244; Clifton v. Exr’s of Haig, 4 Desaussui’e, 330. But the case of most commanding authority is that of Schuyler v. Hoyle, 5 Johns. Ch. 196, where the authorities were elabox’ately reviewed by Chancellor Kent. See also 20 Pick. 517.
    •But these cases establish nothing mox'e than the right of survivorship in the wife, if she outlive the husband. They by no means show that if the husband survive the wife, he shall not be entitled to her chose in action accruing during coverture; they show,indeed, that bis interest is not absolute, but it by no means follows that the right of survivorship does not belong to him; for ^neither is the interest of the wife absolute. Indeed, I have not been able to find a single case which decides that the husband, if he survive his wife, is not entitled, in his own right, to her choses in action of the kind x’efex’red to. But, on the contrary, there are several cases of the highest authority, which, admitting the right of survivorship in the wife, also l’eeognize that right in the husband in the event of his surviving her.
    The first case to which I request the attention of the court on this point is the vexy elaborate one of Hayward v. Hayward, 29 Pick. 517, which recognizes the right of survivorship in the wife, and overrules the px’evious doctxúne of the Massachusetts court, already cited, that a chose in action, accruing during coverture to the wife, vests absolutely in her husband. In that caso, the court say:“Comyn also states another legal principle, upon which some reliance may be placed, by those who deny the right of the wife to take as survivor, and which may deserve consideration. He states the rale of law to be, that if a legacy is bequeathed to a feme covert, and she dies before the payment of the same, her husband, if he sui’vives, is entitled to it. This position is undoubtedly well sustained by decisions both in this country and in England, Schuyler v. Hoyle, 6 Johns. Ch. 206 ; but is not considered by those courts that have thus ruled as in any degree inconsistent with the doctrine of the l’ight of the wife, in case she is the survivor', and the right has not been reduced to possession by the husband. Blount v. Beshland, 5 Ves. 515.” The case of Goddard v. Johnson, 14 Pick. 352, is a direct authority in favor of the principle for which I contend. In that case, the plaintiff, after the death of his wife, sued the defendant, as executor of the will of her father, for a legacy which accrued to her during coverture, and the court sustained the action.
    The case of Hapgood v. Houghton, 22 Pick. 480, also involved this question, and the court, in concluding their judgment, said, “Something was said as to the right of the plaintiff to recover the residuaxy legacy without taking out letters of *administx-ation on the estate of the wife ; but I did not undei’stand that the defendant’s counsel insisted on this objection. We have, however, considered it, and think that he may maintain the action, in his own right; it was so decided in the case of Goddard v. Johnson, 14 Pick. 352. And we think there is no reason to overrule that decision.”
    The case of Jones’ Adm’r v. Warren’s Adm’r, 4 Dana, 333, is a strong authority in suppoi’t of our position. The facts of the case were as follows: “ Heniy Warren bori’owed from Polly Jones, whilst she was a feme covert and living with her husband, S100, for which he gave .a promissoxy note, payable to her. on or before June 1, 1832. Both she and Warren having afterward died intestate, before the note had been paid off or sued on, or in any way disposed of, her administrator bx’ought a petition and summons upon it, against the administrator of Wan-on, to which he pleaded that her husband, Thomas Jones, survived her and was living; and the court having overx-uled the demurrer to the plea, judgment was rendered in bar of the suit. The correctness of the judgment on the demurrer, is the question to be decided in this case.” The court, after reviewing the authorities and recognizing the right of survivorship in the wife, say, “ But the same authorities, and very many others, say that a surviving husband is entitled, as husband, to the undisposed-of choses in action which accrued in right of his wife during coverture. The prevailing and more consistent doctrine seems to be, that the survivor will in such cases be entitled as survivor.” "We conclude, therefore, that the opposing intimation in Claneey on Bights, 426, especially as they seem to have been deduced from obiter suggestions, are not warranted by the adjudged cases, and are inconsistent with principle, analogy, and authority. Wherefore, it is our opinion that the legal title to the obligation in this case survived to Thomas Jones, and that, therefore, he alone had a legal right to sue on it in his own tame and for his own benefit.” The court further say in this case, that, “ Such appears clearly to *have been understood to be the true doctrine by Baron Comyn, and by this court in the cases in 3 Bibb, 499; 3 Litt. 282, and 1 J. J. Marsh. 169.”
    It may, perhaps, be said that the doctrine hero maintained can not be reconciled with the rules which prevail as to choses in action which accrue to the wife during coverture. Thus it may be said that the husband is not entitled to sue in his own name as survivor upon choses in action which accrue to the wife before coverture. If ho would recover them, he must become her administrator, and sue upon them as such. And it may bo asked what distinction there is between choses in action which accrue before, and those which accrue during coverture ? I answer that there is a settled and very material distinction between them. It is settled by numberless authorities, both at law and in equity, “that the husband may sue alone in the lifetime of his wife, upon all choses in action which accrued to her during coverture; but that he must join his wife in the action upon all choses in action which accrue to her before coverture.” Now hore is a clear and settled distinction in pleading, and it may be asked why this distinction should prevail in pleading, unless there is a distinction in legal right?
    John Ferguson, for the defendants:
    'Quoted and relied upon the following authorities: Clancy’s Husband and Wife, 4; 5 Johns. 208 ; 3 Ves. 506; 2 Ves. 675 ; Fonbl. Eq. 248; 6 Johns. 112, 118; 1 P. Wms. 381, 383; Swan’s Stat. 288.
   Read, J.

The question is, is a husband in his own right, under the laws of Ohio, authorized to reduce to possession, after the death of hiswife, choses in action accruing to her, as the meritorious cause, during coverture ?

Choses in action belonging to the wife before marriage, or accruing to her during coverture, as the meritorious cause, not ^reduced to possession by the husband, survive to her after his death. If the wife die, such choses in action, not having been reduced to possession, subject to her debts, dum sola, are governed by the laws of administration and distribution, charged with such debts. In England and some states of this Union, by force of statutes, the husband, as next of kin, is entitled both to administration and the absolute right of such choses in action. Hence, when the husband is entitled in his own right to the unreduced choses of the wife after her death, subject to her debts, coupled with the right to administer as next of kin, not being bound to account, but only charged personally for the debts of his wife, dum sola, to the extent of such choses, he is permitted to merge the character of administrator, and pursue such chose in his own right. This is the reason of the authorities cited to sustain this bill. But in this state, the husband is not next of kin for inheritance. He may administer, but he must account, not only to creditors of the wife, but to her heirs, under our statute of descent and distribution. Hence, in our slate, having the right only to administer, and not the absolute right in the choses in action which survive to the wife, the husband is not permitted, in his own right, to pursue such choses, either in law or equity. Demurrer sustained and bill dismissed.  