
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1805.
    Speight v. Administrator of Meigs.
    The distributory part of the estate of an intestate, under the act of 1791, though it vests immediately on the death of the intestate, yet it does not vest in possession, but in interest only: therefore, where the widow of an intestate married a second husband after the death of the first, and died intestate before partition or distribution of the first husband’s estate, her second husband surviving her, was held not to be in-titled to her share of her first husband’s estate.
    Motion to quash a writ of partition, in Darlington district, before Waties, J. James Meigs died in 1792, intestate, leaving a widow and three children. The widow, in 1794, intermarried with Speight, and died in 1802. Meigs, at the time of his death, was possessed of, and intitled to, both real and personal estate, no partition of which had ever been made, when his widow died in 1802. The writ of partition in this case issued in 1804, in behalf of Speight, who married the widow of Meigs, demanding a ninth part of the real and personal estate. Upon the return of the commissioners appointed to make partition according to the writ, a motion was made to have the same confirmed, and entered as final and conclusive, which was done. Afterwards, the plaintiff moved to set aside the return aforesaid, and the judgment thereon ; and also to quash the writ, on the ground, I hat the demandant was legally intitled to more than he had claimed of tho estate, and that he should be allowed to sue out a writ for a third part, in room of a ninth, Waties, J. overruled the motion,
    
      The motion in this court, was to reverse the determination of the district court, <&o. And was argued by Witherspoon, tor the demandant, and Blanding, for the other parties interested. No objection was made on the ground of impropriety, as to the plaintiff, in moving to set aside proceedings carried on at his own instance.
    In support of the motion, it was argued, that immediately upon the death of Meigs, without having made a last will or testament, the distributors? share given to the widow by the A. A. 1791, vest* ed in her. That generally, chattels given to a feme sole, after her mairiage vests in the husband, although he never has possession of them before the wife’s death. That the distributory share of an intestate’s estate, is in the nature of a gift, or legacy, and is an interest w'hich vests in possession immediately upon the death of the intestate.
    In this case, it was contended, the wife’s part under the act, vested, upon her first husband’s death, in her ; and upon her subsequent marriage, vested in Speight, her second husband ; and although he, S-, eight, nevtr had actual possession of his wife’s share during her life time, ye> he is intitled to the same as an interest vested. Cited ] Com. Di¿. 249. Garth. 252. Co. Lit. 321, arid Butler’s notes. 1 Com Dig. 350 1 P. Wins, 332. See 2 Com. Dig. 82. 2 Roll. 134. '{'hat the third of the pel s mal estate became Speight’s upon the marriage absolutely ; and he became also intitled to her third of the lai.ds, sub modo; and upon tier death, as the case happened, he was intitled either as tenant by the curtesy to the whole thereof during his life, or to one third absolutely, or both : — And notwithstanding the court should be of opinion, that he is not intitled to the third part which his wife would have been iu. titled to, if she were alive of the personal estate, as an interest vested in possession; yet, inasmuch as he might administer on his wife’s estate, which he is intitled to do by the stat. 29, C. 2, see P. Laws, and having recovered her distributory part, might retain the same to his own use : — Therefore, he ought to have partition thereof For even if, after Speight’s death, if any one should administer on his wife’s estate, he would be a trustee for th-: administrator or executor of Speigut, and therefore, the estate of the wife must be considered as a vested interest in the husband. It seemed to be conceded, that the demandant was only intitled to a third of the wife’s share of the land.
    
      E contra.
    
    In order that the husband should acquire a right in the wife’s personal estate, the estate must vest both in interest and possession, during the coverture. 1 Bac. Abr. 47 9. In this case, the widow had only an equitable claim to her share of her husband^ estate, under the act of distributions of February, 1791, which vested only in interest, and could not vest in possession until partition. Her right was, therefore, only that of a chose in action. gee 2 Com. Dig. 84. 1 Show. 25, new ed. (Jo. Lit. 351. And choses in action are not vested .n the husband by the marriage, though he survives, unless they are recovered, or reduced into possession. 1 Bac. Abr. “Baron & Feme.” Thus where a legacy has been left, it does not vest, until it has beeu received. 1 Bac. Abr. 4<-*0. As to what has been said, that the husband may recover the whole of his wife’s part as her administrator, and that he cannot be compelled to make distribution ; — though this should be so, yet it does uot follow that he can claim it in his own right by writ of partition. But by a proper construction of the act of 1791, it is conceived, the husband cannot be allowed to claim any more of his wife’s effects, than she, under like circumstances, would be allowed to claim of his. By the act of 1791, personal estate shall be distributed in the same manner as real; and it is declared, that the husband shall be iutitled to the same part of his wife’s real estate, if he survives her, that she would be mtitled to oi his estate, in case she should survive him, and he should die intestate. And as the act professes to make a more equal distribution, therefore it seems clear, that the husband shall not be iutitled to any more of his wife’s estate, than was intended to be allowed him by the act of 1791 — and that should he reduce her choses in action into possession, he would be compellable to account for the same to her next of kin, for he would be regarded as trustee for them. There is no question as to the real estate. The husband can have only a third of whatever the wife’s share appears to be. This has been assigned in this case, and he ought to be content. One third of the personal estate to which the wife would have been intirled to, if she were alive, has also been assigned to him, without objection on the part of ilie other parties interested, though not strictly demandable by partition before the wife’s part had been previously assigned, and with this he ought to be content.
   Per curiam.

(Grimks. Bay, and Brevard, Justices; Wilds, J. having beeu of counsel iu the cause, gave no opinion.)

There is no ground for granting this motion. The quest-on intended to be settled by it, is, whether the share of an intestate’s personal estate, vests in the party intitled thereto, immedhtely upon the intes. tate’s death, so as to confer on such party the right of possession ; or in other words, whether it constitutes a chose in possession, or q -¿hose in action ? It is true, that the right vests immediately on the intestate’s death, (see 8 P. Wms. 49,) but not, absolutely ; it vesta only in interest, not in possession. The share which the wife might claim of her husband’s estate persona), did not vest in her second husband ; for there may be debts which are Cmsatisfied, and for which the estate is liable and tmiil these are satisfied, it cannot be known whether the wile has any, and what. right thereto. And after it is ascertained what part the wife is inlitled to absolutely, still it is but a chose in action,- which does not vest absolutely in the .husband. 2 Vern. 401. 3 P. Wms. 199, 87. And as she died before this chose in action was reduced into possession, it shall go' to her representatives, and not to her husband, who survived her. The husband might have administered, and got possession of these ¿¡hoses in action. If another had administered, and the estate of the former husband had been divided, and the wife’s part ascertainéd, after her death, the demandant might have brought a writ of partition (o have -his part of her estate ; in which case, he would Slot be intitled, under the act of 1791, to more than one third of it. It is not pretended, that he can legally claim more than one third of her share of the real estate of her former husband. Ashe has Obtained by the writ in-question, by the consent of the other parties interested, what he would have a right to, if all the proceedings had been regular, there is no good grouud for this motion.

Motion discharged.

Note. See Hynes v. Executors of Lewis, Taylor’s Rep 44. 2 Bl. Com. 439. 4 Co 65. 1 Vern. 161. 2 Vern. 302. 2 Vent. 340. 2 Com. Rep. 725. 2 Eq, Abr. 144. 1 Ch. Car. 27. 2 Ch. Rep. 234. Husband obtained a decree in equity for a legacy given to his wife, and died before he received it: determined that it went to the wife, Nanney v. Martin, 2 Hayw. 230. Johnson and wife v. Pasteur, 2 Hayw. 193, 194 1 H Bl. 535

Quaere. Should not there have been an administration on the wife’s estate, and a writ of partition brought to ascertain the wife’s part; and after-wards af writ, of partition by the second husband, forhissh-.re of her part? Quaere also,whether be could claim any thing by writ of partition, but only as his wife’s representative ? Partition lies not of a chose in action.

Quaere Whether, if the husband should take out administration on his wife’s estate, he would be iutitled to retain the whole, or he compelled to make distri.hution to her next of kin ?

See the case of the ordinary of Orangeburgh district v. Geiger, ante, p. 484.  