
    SUPREME COURT—IN BANCO.
    JANUARY TERM—1872.
    
      Allen, Gh. J., Hartwell and Widemann, J. J.
    
    Kaluahine (k.) vs. S. B. Dole, Trustee of the Estate of the Late Napua Zupplien Kaluahine, deceased.
    On the wife’s death, her personal property vests in her husband subject to her debts dum sola.
    
   This case is submitted on an agreed statement of facts. It appears that Napua Zupplien made a deed in trust, bearing date April 15th, 1871, of all her estate, real and personal, with the exception of her interest in the awa trade, to S. B. Dole, in which trust deed it was expressly declared that the said trustee shall hold 'the said “ real and personal property and use the same with the issues, rents and profits thereof for her benefit, according to his best judgment, with full power to convey or mortgage the whole or any part of the same, as in his judgment he shall think necessary for the benefit of the said estate or the said grantor, and after the death of the said grantor to convey the said real and personal property, or whatever part of it then remaining in his hands, to the heir, or heirs of her body, or according to the tenor of my will, if I leave a valid will, in fee, or if neither, to my heirs, according to law.”

It further appears that Napua Zupplien married Kaluahine on the 15th of May, 1871 ; that previous to marriage she had incurred debts to Melnerny for about the sum of $600, and to II. Dimond for the sum of $500, and secured the same by mortgage on her real estate ; that Napua Zupplien Kaluahine died intestate on the 24th of September, 1871.

Tbe questions submitted are tbe. following :

1. Upon the death of tbe said Napua, notwithstanding tbe deed of trust aforesaid, did tbe personal property belonging to her estate, absolutely vest in tbe husband, Kaluahine, and did bis obligation to pay tbe debts cease 1

2. After tbe death of tbe said Napua, is her husband, Kaluahine, responsible for her debts, especially those contracted before marriage and secured by mortgage on her own real estate ?

Tbe first question which arises in this case is, — is tbe personal property in tbe hands of tbe trustee liable to pay tbe debts of tbe grantor contracted prior to the marriage ? Section 1286 of our statutes provides that tbe husband shall be accountable in bis own property for all debts contracted by bis wife anterior to, and during maniage, as well as to provide for and support bis wife. Tbe husband, in virtue of bis marriage and in consideration of tbe responsibilities imposed on him by law, shall be tbe virtual owner of tbe movable property belonging to tbe wife anterior to marriage and accruing to her after marriage, and tbe same shall .be liable for bis own private debts ; and be shall have tbe enjoyment of tbe real estate, but upon her death be shall cease to have control of tbe real estate, and the same shall descend to her heirs, unless there is legitimate issue of tbe marriage within tbe age of legal majority, then the husband shall continue to enjoy a courtesy in said property until such issue shall attain majority, when tbe same shall descend to her heirs.

Tbe real estate is not liable to be sold for tbe husband’s debts, whether contracted in bis own behalf solely, or for tbe use of bis wife after marriage. But it is liable for tbe debts of tbe wife contracted by tbe wife before marriage, if no property of the husband can be found to satisfy tbe same.

By tbe statutes, the husband is accountable in bis own property for debts contracted by tbe wife anterior to marriage. Tbe statute does not declare that it shall cease on tbe death of the wife. By what authority then can the Court so adjudge ? We are of opinion that it is our duty to give interpretation to our statutes according to their terms.

There is no doubt that at common law, the liability of the husband for debts of the wife, contracted dum sola, ceased at her death. But by our statutes there is no provision to that effect, and we are disinclined to give this interpretation to the case. But even should we give this interpretation, it could not apply to the present ease. The personal property consisted mainly of choses in action in the hands of the trustee, as appears by the trust deed referred to in the submission, and not reduced to possession. Chancellor Kent says “that if the wife leaves choses in action not reduced to possession in the wife’s life-time, the husband will be liable for her debts, dum sola, to that extent, for these choses in action will be assets in his hands.” But as they have been and are now in the hands of the trustee, we hold that he would have been justified in applying the proceeds to the payment of the debts of the grantor, contracted before marriagé. The responsibility of payment rests upon the trustee, that he pay no debt not legally due. He was vested with full powers to manage the estate for the best interest of the grantor, and after her death to convey the real and personal property remaining in his hands to her heirs, according to law, in case she did not make a will.

The debt's referred to are still due and unpaid, and we are of opinion that the personal property in the hands of the trustee should be applied to their payment. And there can be no doubt that, prior to her death, he had full powers to pay said debts from the personal property in his hands, for he had the large discretion of managing the property according to his best judgment.

The husband has the prior right of appointment as administrator, although the judge for satisfactory cause may disregard it. But the trustee would be justified in declining to surrender the property to any one unless legally authorized to receive it. And it could make no difference with the estate whether the debts were paid by the trustee or the administrator: the result would be the same to the husband. We regard the personal property in the hands of the trustee as a fund from which to pay the debts of the wife incurred dum sola, and we regard it the duty of the trustee as within the- purview of the trustee deed to pay all debts of the grantor, to remove all obligations from property in his hands, and then to pay over the balance to those entitled by law to receive it.

The authorities cited by the counsel for the husband fully sustain the legal position that, at common law, the husband is liable for the wife’s debts dum sola only during coverture, unless the creditor receive judgment against him in the wife’s life-time. But we regard our statute as creating this liability, and to this extent in conflict with the common law. The doctrine as maintained by the counsel for the husband, would work great injustice in a case when the husband should receive the property of the wife, and refuse to apply it to the payment of her debts, and if he is not liable after the death of the wife, this would be often the ease.

The injustice of the common law has often been commented upon by the Chancellors of -England. In the case of Freeman vs. Goodham, Peere Williams, R. p. 410, where a feme dum sola bought goods but did not pay for them, and afterwards married and died, having brought a good portion which came to the hands of her husband, who, on the creditors filing a hill against him, to be paid for the goods, demurred. The Lord Chancellor, Nottingham, overruled the demurrer, saying with some earnestness, that he would alter the law in that point. So in the case of Powell vs. Bell, Abridgment of Cases in Equity, 60 pi. 7, Precedents in Chancery, 256, it was decreed that the wife who had contracted debts dum sola, being dead, the husband should account for what he had received -with her, and should be so far liable to her debts.

W. C. Jones for plaintiff*.

S. B. Dole for defendant.

Honolulu, February 10th, 1872.

We are of opinion that the personal property, including the ehoses in action, conveyed in the deed of trust to S. B. Dole, vests in the husband on the death of the wife, subject to the payment of the debts of the wife contracted anterior to marriage.  