
    Charles Clapp, Administrator, versus The Inhabitants of Stoughton.
    A testator gave real and personal estate to the defendants for the purpose of building a schoolhouse, provided it should be erected iu a place specified, and the residue of his estate, real and personal, lie gave to his wife. The defendants came into possession of the property, but by neglecting to perform the condition, forfeited the same; but noi until after the death of the residuary legatee. It was held, that a contingent interest in the estate, real and personal, vested in the residuary legatee, which was transmissible to her heirs and personal representatives respectively.
    
      Held also, that an action against the defendants to recover the personal property, should be brought by the administrator of the residuary legatee and not by her heir ; but that an action for the rents and profits of the real estate might be brought by her heir.
    The rents and profits of a wife’s real estate, which accrue during the coverture, belong absolutely to the husband ; so that if he docs not reduce them to possession during his life, an action to recover them does not survive to the wife.
    Assumpsit for money had and received. The action was commenced on March 23d, 1829, by Ann Monk, the plaintiff’s intestate. The parties stated the following case.
    Lemuel Drake, by his last will, which was allowed and approved by the court of probate in November 1805, gave to Lemuel D. Southworth $ 100 when he should arrive at eighteen years of age ; but if he should die before he arrived at that age, then the money was to go to the use of the schoo' mentioned in the will. Southworth died before he arrived at the age of eighteen years.
    L. Drake also devised to the defendants $ 300, for the purpose of building a schoolhouse for the use of a free grammar school, or other school, as the town might direct, provided the . schoolhouse should be built by the town within 100 rods of the place where the meetinghouse then stood.
    On May 5th, 1806, the. defendants, in legal town meeting, voted to “ accept the donation of L. Drake, and to make provision for performing the conditions on their part, agreeably to his will, as soon as the circumstances of the town would permit.”
    In the last clause of the will, L. Drake gave “ all the remainder of bis estate, of what name or nature soever, or wherever the same might be found, to his wife Abigail Drake, her heirs and assigns for ever.”
    In 1806, Abigail Drake died intestate, and the settlement of her estate in the probate court was closed on January 1st, 1811.
    On March 14th, 1814, the administrator de bonis non of L. Drake paid to the treasurer of the defendants the abovementioned sums of $ 100, bequeathed to Southworth, and $ 300, bequeathed to the defendants, and $ 116, the amount of interest received on the two first mentioned sums and rent received by him of real estate which was devised by L. Drake to the defendants, and which real estate has since been recovered by the heirs at law of Abigail Drake, by a judgment of this Court rendered in 1828.
    The defendants, on March 14th, 1814, took possession of tne real estate devised to them, and afterwards, and before the recovery thereof from them, cut down or sold wood growing thereón, and received into their treasury the proceeds of the sale of the wood.
    The plaintiff’s intestate, Ann Monk, was a sister and one of the four heirs at law of Abigail Drake. She was the wife of Elijah Monk at the time of the death of Lemuel Drake, and until 1824,' when Elijah Monk died.
    
      Before the commencement of this suit, viz. on June 1st, 1828, the plaintiff's intestate demanded of the selectmen of Stoughton her share of the money above mentioned, in the possession of the defendants.
    At the commencement of this suit, the defendants had not built any schoolhouse according to the provision in the will, unless the following facts show a compliance therewith. In 1826, certain individuals in Stoughton erected a schoolhouse within 100 rods of the meetinghouse, and conveyed it to the town. A new school- district was formed in that part of the town, and the house so erected has been ever since used as a district schoolhouse.
    If the plaintiff was entitled to recover, notwithstanding the statute of limitations, judgment was to be rendered for such sum as the Court should order; otherwise he was to become nonsuit.
    
      Metcalf, for the plaintiff.
    The former suit (Hayden v. Stoughton, 5 Pick. 528) decided two questions that arise in this, namely, that the property is forfeited, and that the residuary legatee is entitled to reclaim it.
    
      JVbv. 5th.
    
    Incidentally, and by necessary implication, it was also decided in the former suit, that the contingent interest in the devise and legacy given to the defendants, vested in Abigail Drake during her life, so as to warrant her representatives to assert that interest, though the contingency did not happen until after her decease. This point was not then raised by the defendant’s counsel, but it may now be started, and a difference suggested between re.al and personal property, in this particular.
    The residuary legatee, Abigail Drake, was entitled to the moqey given to the defendants conditionally, in the same manner as if there had been an express limitation of the money to her on the defendants’ failing to comply with that condition. That a contingent interest of this kind vests in right, though not in possession, in the second legatee, that is, that the interest of the first and second taker vests uno inslanti, is shown by the following authorities ; all of which relate to personal properly. Anon. 2 Vent. 347 ; Pinbury v. Elkin, 1 P. Wms. 563 ; Chauncy v. Graydon, 2 Atk. 621 ; Barnes v. Allen, 
      1 Bro. C. C. 181 ; Massey v. Hudson, 2 Meriv. 133 ; 1 Roper on Leg. (3d ed.) 402. No English authorities on the • very case now at bar, can be found. The misemployment of property given to charitable uses (not within the mortmain acts) is redressed in chancery, or under St. 43 Eliz. c. 4. But the foregoing cases establish the principle to be applied here.
    The defendant will object, that the plaintiff’s intestate is not the proper party to sue ; —
    J. Because the right to the money vested in Elijah Monk, ind his administrator, should sue.
    But this right accrued to Elijah Monk in right of his wife, and was a chose in action only, which survived to her. Wildman v. Wildman, 9 Ves. 174 ; 1 Roper on Husb. and Wife, c. 5, § 4; Stanwood v. Stanwood, 17 Mass. R. 57 ; D'Aeth v. Baux, 10 Mod. 64 ; Com. Dig. Baron & Feme, F 1.
    2. Because all the heirs should join in the suit.
    Non-joinder of plaintiffs, in actions ex contractu, is doubtless a fatal objection. But this is not a joint claim of heirs on the defendants. One heir could not release the defendants, except as to his own share. The defendants received the money in 1-814. Abigail Drake had then been dead several years, and her estate was settled and distributed. At the time of her death there had been no forfeiture. The defendants received the money, therefore, not as trustees of Abigail Drake, the residuary legatee, but of her heirs at law. If this is regarded • as a debt due to the heirs, it is “ a divided debt.” The heirs are numerous and their proportions various. One has not the power of compelling the others to join in a suit. The defendants received the money under the legal liability to refund it to each heir proportionally ; which legal obligation is of the same effect as if the defendants had expressly promised thus to refund it. If this view is correct, then Shaw v. Sherwood, Cro. Eliz. 729, Owen, 127, Mo. 667, 1 Brownl. 82, and Yelv. 25, is an authority for several actions. In Griggs v. Dodge, 2 Day, 28, where personal property was given to one during widowhood, over to testator’s heirs, one heir maintained a suit against the first taker and her husband (she having married again) for his portion of the property ; and that action was ex contractu. ■ 
      
      One heir or legatee may sue in chancery. Cooper’s Eq. Pl. 39 et seq. ; 1 Montag. Pl. in Eq. 62.
    3. Because the administrator of Abigail Drake, and not her heirs, should sue.
    And doubtless the general rule is, that in personal actions, where the cause of action is derived from a deceased person, the executor or administrator must sue or be sued, and not the heir : because the property may be wanted to pay the debts of the deceased, or legacies ; and in case of an executor, the old common law gave him the residue. ■ Here Abigail Drake’s estate has been settled and distributed for twenty years ; no demands exist against it. And if administration de bonis non can be granted after the expiration of twenty years from the death of Abigail Drake, cui bono ? Merely to enable the administrator to collect this money and pay it over to her heirs. Frustra petis quod statim alteri reddere cogeris.” Can this claim be regarded as “ personal estate ” of Abigail Drake ? If not, administration de bonis non could not be taken out on her estate. St. 1817, c. 190, § 17. The defendants never owed her this money. It was not in their hands till long after her death and the final settlement of her estate. But Griggs v. Dodge, 2 Day, 28, is a direct decision on this very point, after argument, in which this objection was considered. There the testator died in 1796, bequeathing one third of all' his estate, real and personal, to his wife, “ so long as she remained his widow.” The widow accepted the provision in the will, and his estate was settled. In 1799 the widow married, retaining the personal property bequeathed to her as above. The will gave “ one eighth part of the testator’s estate ” to each of his children. One of his sons sued the mother and her second husband for his proportion of the personal property, and the action was sustained, after, all the questions raised (as Kent says) “ had been very ably and thoroughly discussed.” The plaintiff had become sole executor, but he did not sue as ex ecutor; if he had so sued he must have claimed the whole.
    
    As to the avails of the wood sold, the plaintiff’s intestate claimed as heir and was entitled as heir, if at all. To that part of the claim, therefore, the defendant’s objection does not. apply.
    
      
      Metcalf argued likewise that the action was not barred by the statute of limitations.
    
      Lelancl, for the defendants, admitted, upon the authority of Hayden v. Stoughton, 5 Pick. 528, that a right to the personal property in question vested in the residuary legatee, but he contended that, on several grounds, this action could not be sustained.
    The statute of limitations is a bar to the action.
    Ann Monk was not entitled to sue, because when a right to a legacy or a distributive share accrues to a woman during coverture, it vests instanter in the husband and will not survive to the wife. Griswold v. Penniman, 2 Connect. R. 504 ; Shuttlesworth v. Noyes, 8 Mass. R. 229; Swann v. Gauge, 1 Hayw. R. (N. Car.) 3.
    The action was brought by Ann Monk as heir of Abigail Drake. An heir cannot sue for a chattel or a chose in action belonging to the intestate, but must claim through an administrator and through a decree of distribution.
   Wilde J.

subsequently drew up the opinion of the Court. The plaintiff claims as administrator of the estate of Ann Monk, and in her right as she was one of the heirs of Abigail Drake, who by the last will and testament of Lemuel Drake, her husband, was made the residuary devisee and legatee of his estate. A portion of his estate, real and personal, was given to the defendants upon a condition which has not been performed. In this portion of his estate a contingent interest vested in Abigail Drake, although the contingency upon which it depended did not happen until after her death. It was a vested right, subject to a contingency, which was transmissible to her heirs and representatives, and in them it became vested in possession on the forfeiture of the estate by the defendants. Chauncy v. Graydon, 2 Atk. 621 ; Massey v. Hudson, 2 Meriv. 133. After the death of Abigail Drake, the defendants’ right became forfeited by their non-compliance with the condition, and the real estate has been recovered by her heirs. This action is now brought to recover Ann Monk’s share of the personal estate or the legacy, and also cf the profits of the real estate received by the defendants.

In regard to the legacy, the law is clear that it belongs to Abigail Drake’s administrator, and consequently that no action will lie for it in the name of her heir. It has been said, and said truly, that the interest did not vest in Abigail Drake in possession. But it by no means follows that it was not transmissible to her representative, for it is sufficient for this purpose that the right vested. All contingent as well as absolute interests in personal property pass to the executor or administrator ; and in like manner all choses in action pass, although they may remain depending on a contingency during the life of the testator or intestate. But if it were otherwise it would not give any right of action to the plaintiff. He claims in right of one of the heirs ; but they had nothing to do with the personal estate or personal contracts of the intestate ; and as heirs they could maintain no personal action in her right.

The claim for a share of the profits of the real estate depends on different principles, respecting which there are greater doubts. These profits all accrued after the death of Abigail Drake, and if Ann Monk had been unmarried at the time they accrued, this action might well lie. But it appears that at that time she was a feme covert, and the question is, whether the profits of her real estate during the marriage belonged absolutely to the husband, or as they were not actually reduced to possession by him, whether an action to recover them did not survive to the wife. It is somewhat surprising to find that this question does not appear to be entirely settled. There are conflicting opinions and decisions : and it would be but an unprofitable labor, I fear, to attempt to reconcile them. The better opinion seems to be, that these profits belonged absolutely to the husband ; that he had a right to sue for them alone ; and that no right of action survived to the wife. By the marriage the husband becomes the absolute owner of all the wife’s personal property, and acquires a full and perfect title to the rents and profits of her real estate during the coverture. They are considered in law as one person, the husband being the head; the wife therefore, during the coverture, can make n0 contract to her own use, and if a note or bond is given to her, the property in it immediately vests in tlie husband. Barlow v. Bishop, 1 East, 432. And she can acquire no personal property in her own right, for if she obtains any, by gift or otherwise, it becomes immediately the property of the husband, though not in his possession. Com. Dig. Baron and Feme, E 3. The husband also has an absolute right to the services of the wife, and to all beneficial- interests accruing thereby. The right to recover compensation for such services vests in the husband alone, and does not survive to the wife on the death of the husband. In an action, however, the husband may join the wife, and . if judgment is recovered in their names, and she survives, the judgment will survive to her. The recovery of judgment in such a case operates as a contingent gift from the husband to the wife, to take effect if she should survive. Oglander v. Baston, 1 Vern. 396. The same doctrine applies to the rents and profits of the wife’s real estate, and to actions of trespass on her lands during the coverture. The husband may sue alone, or according to the current of the authorities, the wife may be joined. Com. Dig. Baron and Feme, W and X. But it by no means follows, that because she may be joined in an action, the cause of action will survive to her, if she is not joined, or no action is brought during the life of the husband I think the true rule is, that in all cases where the cause of action by law survives to the wife, the husband and wife must join, and he cannot sue alone. This rule will go further than any other, to reconcile all the cases. In all actions for choses in action due to the wife before marriage, the husband and wife must join and among all the conflicting cases, I apprehend not one can be found in which it was held that the husband could sue alone, where the cause of action would clearly survive to the wife. Now in the present case it. seems to me well settled, that the husband of Ann Monk might have maintained an action in his own name for the profits of the real estate received by the defendants. The profits belonged to him, and they were received to his use ; so that the law implies a promise on their part to pay them over to him. But there was no promise, express or implied, to pay them over to the wife.

Plaintiff nonsuit. 
      
       The husband is entitled to the damages paid for land of his wife taken for a highway. Emerson v. Cutler, 14 Pick. 108, These damages may now be secured to the wife, under Revised Stat. c. 77, § 17.
      A note given to a feme covert for her separate use, for the consideration of her distributive share in an intestate estate, becomes immediately the property of the husband. Commonwealth v. Manley, 12 Pick. 173.
     
      
       See Morse v. Earl, 13 Wendell, 271.
     
      
       See 1 Chit. Plead. (7th Am. ed.) 33, 34, and note (53).
      In Pennsylvania, a bequest to a wife cannot be attached by a creditor of the husband. Dennison v. Nigh, 2 Watts. 90; S. P. Robinson v. Woelpper, 1 Wharton, 179; Wintercast v. Smith, 4 Rawle, 182. A husband may sue in his own right after his wife’s death, for a legacy accruing to her during coverture Goddard v. Johnson, 14 Pick. 352.
     