Pierce v. Dustin

Eastman, J.

The will of Jonathan Hardy, and particularly those clauses of it upon which the decision of this ease rests, have heretofore undergone á judicial construction in the superior court of this State, in the case of Judge of Probate v. Hardy, 3 N. H. Rep. 147 . In that case Richardson, C. J., says: “ We think that it was the intent of the testator that this sum should be reserved for the use of Clarissa and her children, and that the husband of Clarissa should have no control over it.” And again: “ This will seems to us to give to Clarissa the right to receive only the interest of. this legacy.” It was also there held that the executor was by law the trustee of the fund; that it should be kept by him, and the interest be paid over to her as it should fall due.

In the case of Parsons v. Parsons al., 9 N. H. Rep. 321 , Parker, C. J., has stated the law, and collected the authorities in regard to the rights of a husband over the distributive share or legacy of the wife; and he states it thus: “ Neither a legacy to a wife, nor a distributive share in an estate in which she is interested, vests in the husband absolutely. They are not like her personal property in possession, which become absolutely his. *426 But they are classed with and sometimes called her choses in action. If the husband reduce them to possession, as he may, they become absolutely his own. And he may release them or assign them for a valuable consideration, and by a deed to which she is not a party. But until he has reduced them into possession, or in some other way barred her right, he has only a qualifying interest, and if he die first the right survives to her. And possession by the husband as executor and trustee, is not a sufficient reduction into possession to bar her of her right. If, however, he survive his wife, he is entitled to administration, and to recover and receive them to his own use.” See also Marston v. Carter, 12 N. H. Rep. 159 .

Upon this doctrine it will be apparent that should we hold that the legacy was given to the wife of Pierce, generally, without restriction, that her husband could reduce the same into possession, or bar her right thereto by assignment. But without going into any discussion as to the meaning of the will, it is sufficient to say that we feel bound by the construction that was given to it in the case of Judge of Probate v. Hardy ; and by that construction the husband could not assign the legacy. He had no control over it, or its income, until actually in his possession.

Adhering to the construction given to the will in that case, it becomes unnecessary for us to determine how far the assignment made by Pierce to the defendant would avail, if Pierce had the right to make it. Having no right to make it, the assignment is void.

But there is another question raised in this case, which is presented by the demurrer to the replication to the plea of the statute of limitations. The money claimed of the defendant was all received by him more than six years before the commencement of this suit, and unless the disability of the wife is a sufficient answer to the plea of the statute, the action must fail.

The provision of our statute by which the rights of infants, feme coverts and insane persons are saved, is believed to be universally common to statutes of limitations. As a general rule, the statute does not run so long as the disability continues, and *427 the rights of a feme covert are not prejudiced during her incapacity to institute a suit therefor. And such was the fact in this case. The plaintiff, Clarissa Pierce, was under coverture prior to the reception of any of the money'by the defendant, and for aught that appears still remains so. According to the construction given to the will, the right to the income of the legacy was her sole right, one over which her husband had no control; but still, one which she could not enforce in her individual name and capacity during coverture. It was therefore a right which was saved by the statute so long as the disability should continue.

It is no sufficient answer to this position, to say that the husband and wife could have instituted the suit at any time. The fact that it might be done, does not prove that it necessarily must be done to save the statute and her rights. The right was in her; the reservation of the statute is for her benefit, and until she had personally the power to institute the suit, the statute would not run against her. To test the principle: Suppose the hrfsband to have died a month before the suit was commenced, and that it had been brought in her name; it would hardly be contended that the statute of limitations could be successfully interposed to such suit by her. The disability of coverture would not be removed until the death of the husband, and the statute would not begin to run till then; and because the husband could unite with his wife and bring the suit, her powers and her rights would not be abridged thereby.

This suit is instituted for the benefit of the wife, in the name of the husband and wife; for she has no legal existence that will enable her to bring a suit in her own name during the coverture. And such a suit may be brought during the continuance of the wife’s disability to maintain a sole suit. Watson v. Watson, 10 Conn. Rep. 77 ; Leighton v. The State, 4 Harrington’s Rep. 8; Stuart v. Kissam, 2 Barb. Sup. Ct. Rep. 493.

We see no objection to the allowance of interest upon the sums as they were received. The defendant has had the use of the money, and the wife was not in a situation to make any legal demand or institute any suit for the same.

*428 Neither can the set-off he allowed. The defendant has no canse of action against the wife therefor. The credit was given to the husband, and the charges were made against him. If a demand against the husband could be set off against the wife’s claim for the income of the legacy, then would the object of the will be defeated, as the income would thus be indirectly appropriated by the husband. The disallowance of the set-off may seem to be a hardship upon the defendant. But after the decision of the case of the Judge of Probate v. Hardy , in which the defendant participated, at least in the receipt of the money, he knew what construction the court had given to the will, and should have governed himself accordingly. Pierce can now pay him the amount of the set-off, if he has the disposition and ability so to do.

Judgment on the report.