Wheeler v. Moore

A creditor of the husband cannot appropriate the wife’s property to the payment of the husband’s debt, without the assent of the husband or wife. The distributive share of the wife in an intestate estate cannot be attached, by the trustee process, for a debt of the husband, until he has done some act to reduce it to possession, or in some way asserted a right to it.

Foreign Attachment. From the disclosure of the trustee it appeared, that in the year 1841 he was duly appointed administrator of the estate of Mary Wright, late of Hollis, and accepted the trust, and that on the 4th day of October, 1842, he settled his account of administration, and there was found in his hands the sum of $256.02; and a decree was made that he should distribute the same among the heirs at law, by paying to Charlotte Moore, a sister of the intestate, and the wife of Mark Moore, the principal defendant, the sum of $64.00, — and to others similar sums. It also appeared, from the disclosure, that Mark Moore refused to have the distributive share of said Charlotte go to pay the plaintiff’s claim, and had so instructed the trustee. The trustee further disclosed, that he had in his possession certain articles of household furniture, which were part of the effects of the grandmother of the said Charlotte Moore, who died since the death of the mother of the said Charlotte ; — that there had never been any administration of the estate, but some of the heirs made a division, among themselves, of the effects, and the articles above mentioned were put into the hands of the trustee, as the share of said Charlotte. Neither the said Charlotte, nor her husband, were consulted as to the division. They had not seen the property since the division, and had not consented to it, except in saying, by letter, that they should be satisfied with any arrangement the other heirs might make. Said Charlotte claimed the property, and objected to having any part of it applied to the payment of the plaintiff’s claim. As to the $64, in his hands, the trustee may be charged. He has settled his account, and is accountable to no one except the distributee or her husband. Had the principal debtor been heir at law, there could be no question. Adams vs. Barretl, 2 N. H. Rep. 374. But the money in the hands of the administrator, upon the decree, vested in the husband. He alone had a right to receive it. The wife could not compel payment, or give a discharge. If personal property is given to the wife during coverture, or a legacy, it will go to the husband. It is not like choses in action. Reeves’ Dom. Rel. 60, 61. It belongs to him exclusively. A creditor may take all the husband could. The wife’s chattels real are liable to be sold for the husband’s debts. 2 Kent 134-137. The husband might recover the wife’s share. A general assignment in bankruptcy passes the wife’s diosos in action, subject to her survivorship. As to the other property, there was no administration. If the heirs undertake to settle the matter, who can object ? The heirs having agreed, and set out the portion of each, a right of possession vested in the several heirs. A creditor has the same right as in the other case. There cannot be a judgment for money, but the property may be sold on the execution. A purchaser would take it, subject to the right of an administrator. If Moore had the right of possession, that chance, whatever it is worth, goes to the creditor, under the process. The part of the effects of the debtor’s wife’s grandmother, in the hands of the trustee, is not holden by this process. They have never vested in the debtor or his wife, — have not been accepted by them, and may never be accepted. Notwithstanding any agreement, administration may yet be taken on this estate, by the heirs, or some one of them, (Giles vs. Churchill, 5 N. H. Rep. 337,) in which case these goods would not go to this party, unless by a new agreement. And should the heirs not take administration, it does not appear that there are not debts due from the estate, and if so, the creditors may take administration, and these effects be taken for the debts. And it is contended that the trustee cannot be charged for the money in his hands, decreed to be paid to the debtor’s Avife. The trustee can be charged only for property vested in the principal. A distributive share of the wife is not vested absolutely in the husband until it is reduced to possession; until he takes the money, or takes security to himself for it. To this Parsons vs. Parsons, 9 N. H. Rep. 321, is a direct authority. He may reduce it to possession, release, or assign it, but until that is done he has but a qualified interest in it. It is believed that no case can be found where the trustee has been charged, unless the debtor had a legal or equitable title to the property, or has put it out of his hands fraudulently. In 2 Kent 130, it is said the husband may sue for and recover the wife’s choses in action, and when reduced to possession they become his. If he dies before getting possession, they remain her property. If she dies, he can obtain them only by settling her estate, and paying her debts, (see 3 N. H. Rep. 129.) This principle is supported by 8 Mass. 99; 13 Mass. 384; 17 Mass. 57. In 16 Mass. 480, it is held that security given to both, for the property of the wife, will survive to her, although his estate be insolvent.