Coughlin v. Ryan

1. Husband and Wife — Right of Wife to her separate earnings. — When a husband permits a wife to carry On business on her sole and separate account, all that she earns will be deemed to be her separate property, and disposable by her as such, subject to the claims of third persons properly affected by it. 2. Husband and Wife — Proceeds of leasehold estates held by wife, how treated. — 'Where the wife held certain leasehold estates, partly owned by her prior to marriage, and partly purchased afterward with money not derived from her husband, and was suffered by him, during the whole period of her coverture, in her own name, to pay taxes and ground rent of the leaseholds, and collect and deposit moneys derived therefrom, such proceeds must be treated as her separate property, accumulated by her own efforts, with the consent of her husband; and in event of her death without children, he will not he permitted to retain it as against her separate heirs.

Appeal from St. Louis Circuit Court. I. The personal property of the wife, in possession of the husband before her death, goes to her husband absolutely at her death, as at common law. (10 Mo. 368; 32 Mo. 532; 25 Mo. 867.) H. At common law, marriage amounts to an absolute gift to the husband of all the goods, personal chattels, and other personal estate of which the wife is actually or beneficially possessed at that time in her own right, and of such other goods and chattels and personal estate as come to her during the marriage. (2 Story Eq. Jur., 2d ed., §§ 1402, 1403, 1405 ; 2 Kent Com., 10th ed., 135; 2 Blackst. Com. 435.) TTT. The husband in this case was in possession of the money in question before his wife’s death, because it issued from chattels real held by the wife, and the husband by law became possessed of the wife’s chattels real upon marriage. (2 Kent Com. 133 ; 2 Blackst. Com. 434-5 ; Reeve Dom. Rel. 81, 94.)’ IV. The husband was in possession of said money before the death of his wife, because the facts show that the same came to the possession of the wife during coverture, and the possession of the wife is the possession of the husband. (32 Mo. 532; 25 Mo. 367; 7 Pick. 65; 37 Ala. 536; 1 Hill., S. C., 191; 8 Porter, 36; 9 Vesey, Jr., 154.) V. The husband was in possession of the money in question at the death of his wife, because the deposit of the same with a private individual constituted a bailment, and the possession of the bailee is the possession of the bailor. (Story Bailm. § 95; 1 Pars. Cont., 4th ed., 572-80; 32 Mo. 532;' 8 Porter, 36.) VI. This case does not come within the statute of 1857 (Sess. Acts 1857, p. 666), and, if it did, that statute could in no wise affect the rights of defendant to the money iii question. The statutes of New York of 1848-9 (3 Rev. Stat. N. Y., 5th ed., p. 239, §§ 75-7) are as broad as the statute of 1857; and it is held that those statutes do not affect the husband’s rights to his wife’s personal property at her decease. (17 How. Pr. 243 ; 22 N. Y. 110; 24 N. Y. 372; 12 N. Y. 202 ; 35 Mo. 181; 17 Mo. 47.) VH. The fact that the husband abandoned his wife cannot affect his rights to said money. (Bell v. Bell, 37 Ala. 536; Bell v. Bell, 36 Ala. 466 ; Molony v. Kennedy, 10 Sim. 254; Stewart v. Stewart, 7 Johns. Ch. 229-247 ; Code Ala. 325, § 5.) VIII. From the facts of this case, it cannot, be said that the money in question was for the separate and exclusive use and benefit of the wife, an'd that her husband was a .mere trustee. (2 Story Eq. Jur., 2d ed., 88 1380-4; 2 Swanst. 97-112; 9 Vesey, Jr., 369.) IX. It is insisted that, upon the legal grounds above stated, the defendant is entitled to the money on deposit with Peter Richard Kenrick at the decease of his wife. X. The court cannot consider the decision of the Circuit Court so far as it was adverse to plaintiffs, and to which they did not object, and from which they did not appeal. “It is only the objection which the appellant raises which can be considered an appeal. If a party admits to appeal he virtually assents to the judgment.” (Bellv. Holford, 1 Duer, 58 ; Glassner v! Wheaton, 2 E. D. Smith, 352 ; Beach v. Raymond, id. 496 ; 18 N. Y. 368.) XI. There is no separate property shown by this case to have been in the wife, to constitute which, it must appear clearly and unequivocally, by express words, or by necessary implication. (Rider v. Ilulse, 24 N. Y. 379; Walker v. Walker, 25 Mo. 367.) If the case showed a separate estate, and thus by law the husband became the trustee of his wife, her separate property undisposed of at her death would vest in the husband. The separate property, in such case, being a mere creature, of equity for the benefit of the wife, ceases at her death, and the husband becomes the absolute owner of the property, discharged of any trust. (Molony v. Kennedy, 10 Sim. 254; 1 Am. Lead. Cas. in Eq. 401 ; Stewart v. Stewart, 7 Johns. Ch. 245.) That portion of the property which was the proceeds of personal exertions of deceased, belonged to deceased, in her own right, by virtue of “ An act for the benefit of married women.” (Sess. Acts 1857, p. 666 ; see also Gentry v. McReynolds, 12 Mo. 533.) The money on deposit was a chose in action, and not in possession. It matters riot that this money was the proceeds of rents. The lease was a chattel real, and as such might have been sold by the husband. He might have collected the rents ; but the rent, when Collected, became personal property — money; and when collected and deposited by the wife it became a chose in action, for which suit might have been brought; but he having failed to reduce it to possession in the lifetime of his wife, it did not survive to him. The money was deposited to the credit of the wife, and an action at law on the part of the husband would have been necessary to have obtained possession of it. This may have been inferred from the fact that it was not as husband, but as administrator of deceased, that he did and was enabled to get possession of it. The property was not in possession of the wife at the time of her death. This is not a ease of specific personal property in the hands of a bailee, but was money deposited in bank or with a banker. The identical money deposited, of course, was not in the hands of the depositee, and all that remained of it was an indebtedness for so much money deposited. It is not necessary that it should have been evidenced by a note, but it is the same thing, being an account, showing that the depositee owed the depositor a certain amount of money. It was a chose in action, beyond all controversy ; and as such, according to the doctrine in Leakey v. Maupin, 10 Mo. 368, not having been reduced to possession by the husband during the life of his wife, he is not entitled to the same, but it goes to her heirs. (Clancy on Rights of Married Women, 111; Nashv. Nash, 2 Mad. Ch. 411; Grates v. Robinson, 6 Mees. & W. 422; Scarpellini v. Atcheson, 7 Ad. & Ell., N. S., 874; Latourette v. Williams, 1 Barb., S. C., 9; Schuyler v. Hoyle, 5 Johns. Ch. 210.)