
    David Boozer v. Mary E. Wallace, John P. Boozer and Francis Boozer.
    An administrator in possession of his intestate’s estate died, and the funds fell into the hands of his administrator. The widow was then appointed administratrix, de bonis non, and guardian of her children, who were entitled to distributive shares of the estate, and afterwards married the plaintiff, and together with her husband received the estate from the administrator of the first administrator:— JBeld, that in respect to the fund thus received, the plaintiff was not clothed with a representative character that he received it from the administrator in the character of husband, and consequently that the marital rights attached. [*395]
    Newberry, July, 1833, before Chancellor Johnston. Bill for partition, &c. It had been referred to the commissioner, “to ascertain and report upon the facts alleged in the bill of the plaintiff, particularly as to the matters of account relative to the estates of Howell Wallace, Hugh Wallace and William H. Wallace, and what amount thereof the plaintiff reduced into possession during coverture, and what are the respective interests of David Boozer and the defendants, Mary E. Wallace, John P. Boozer and Francis Boozerand he submitted the following report: — ■
    “Howell Wallace died intestate in 1822, leaving a widow, Elizabeth, and two children, William H. Wallace and Mary E. Wallace his only heirs. Hugh Wallace took out letters of administration on his estate, and also died intestate in 1825. Shortly after the death of Hugh Wallace, William H. Wallace also died intestate, leaving his mother, Elizabeth, and sister, MaryE. Wallace, his only representatives him surviving. After the death of the said Hugh Wallace, the widow of Howell Wallace took out administration de bonis non on Howell Wallace’s estate, and afterwards received of John Jamison, (who is the administrator of Hugh Wallace, who was the first administrator* of Howell Wallace) a part of the funds of the estate of the said Howell Wallace, and in 1821 intermarried with the plaintiff, David Boozer, who together with his wife, in some instances, and at other times alone received of the said John Jamison the residue of the funds of the estate of the said Howell Wallace. During the coverture, all of the funds of the estate of Howell Wallace were in the hands of the said David Boozer, as administrator in right of his wife. Mrs. Boozer died in the fall of 1831, — no settlement nor actual partition of the estate of Howell Wallace, in the hands of the plaintiff, having taken place before her death. She was survived by the plaintiff and defendants. It may not be improper to remark, that Mrs. Boozer had also been appointed the guardian of the said William H. Wallace and Mary E. Wallace — that she never received any of the funds of the said William H. Wallace, he having died during the administration of Hugh Wallace on the estate of his father; but that she, before her intermarriage, and also during the coverture, together with her husband, continued to act as the guardian of Mary E. Wallace, until her death, and the said David continues to act.
    “These are all the facts material to a correct understanding of the case, and on them the following questions arise :
    “ 1. Was there such a reduction into possession of the share of Mrs. Boozer in the estate of Howell Wallace by the plaintiff during the cover-ture, as vested the whole of her one-third in him.
    
      “ 2. Was there such reduction into possession of Mrs. Boozer’s interest in the share of William H. Wallace of his father’s estate, as vested such share in the plaintiff, in exclusion of the defendants.
    “3. Was there any reduction into possession by the plaintiff of the interest of William H. Wallace in the estate of Hugh Wallace.
    “These are questions of great difficulty, and the Commissioner has neither time nor inclination to argue them. On reflection, however, I have arrived at the conclusion that the marital rights of the husband attached on the interest *of his wife in the estate of Howell Wallace, and that he is entitled to it in. exclusion of the defendants. As to the interest of William H. Wallace, the Commissioner thinks the plaintiff had no right to the possession of the fund, and was therefore holding it for those entitled; and that he is only entitled to such a share of it as he may claim by representation through his wife. The remaining question is on the same footing.” The report concludes by stating an account between the parties, according to the principles here laid down.
    The Chancellor confirmed the report, and the defendants appealed on the ground:
    That there had been no partition of the estate of Howell Wallace, and no such reduction into possession by the complainant as that the marital rights would attach thereon, and therefore the Commissioner and Chancellor erred in allowing the complainant the whole of his wife’s interest in the estate of Howell Wallace.
    
      Dunlap and Summer, for the appellants.
    
      J. J. Caldwell, contra.
   Johnson, J.

The choses in action of the wife which-are reduced into possession by the husband during the coverture, belong to him. About this there is no dispute; difficulties do, however, sometimes arise as to what does or does not constitute a reduction into possession. Here the husband, the complainant, had during the coverture the actual possession of the fund, and in such cases the question whether it does not vest in him jure mariti, depends on the circumstance whether he received it in his character as husband, or in the representative character as trustee or executor. In the first case it vests in the husband, in the latter case it does not. The cases of Marsh and wife v. Ardis and others, decided at December Term, 1831, and Spann v. Jennings, decided at May Term, 1833, are examples falling within the first class of cases. In both, the husband, without administration, possessed himself of personal property which descended to the wife during coverture, and it was held to vest in the husband, because the wife was sole heiress of the estate, which was unincumbered and free from debt. The case of Baker v. Hall, 12 Ves. 497, is *an example of cases falling within the latter class. There, a trustee and executor married one of the residuary legatees named in the will, and distribution of the residuary estate not having been made, it was held that the marital rights did not attach — so where East India stock belonging to the wife had been transferred to the husband and another as trustees, it was held that it survived to the wife.

The complainant with respect to this fund was not clothed with any representative character. He received it from the administrator in the character of husband. There was nothing else which entitled him to it, and it must be set doivn to that account. The circumstance that it was comingled with the money due to his wards does noj; vary the question, that only made him their debtor to that amount.

The motion to reverse the decree of the Circuit Court is therefore dismissed, and it is ordered and decreed that the same be and it is hereby affirmed,

O’Neall, J., concurred. 
      
       The judgment of the Court in this case, is predicted on the supposition that the whole estate of Howell Wallace had been administered by Hugh Wallace, the first administrator, and went into the hands of Jamison, his administrator — that no part of the estate was actually received by the plaintiff or his wife, in right of their administration; and consequently that all of this estate received by them was in the characters of distributee and guardian. — The report of the Commissioner on this point is rather uncertain, for it states that the widow, before her marriage, received a part of the estate, and after that the plaintiff, “with his wife, in some instances, and in others alone, received of the said John Jamison, the residue;” and that “during the coverture, all the funds of the estate of the said Howell Wallace, were in the hands of the said David Boozer, as administrator in right of his wife.” It is presumed, however, that the fact was, as supposed by the Court, or otherwise a different decision must have been made, as regards any part of the estate received by Mrs. Boozer, or her husband in her right as administratrix de bonis non; for on that part, according to the doctrine of Spann v. Stewart, ante, 332, the marital rights would not have attached. R.
     