Hawley v. Burgess , 22 Conn. 284 ( 1852 )

Church, C. J.

The case before us, among other facts,

finds, that Cornelia L. Burgess, while the wife of the respondent, became entitled, by inheritance, to certain real estate, and that, during the coverture, jointly with her husband, she executed a deed of the same, to James Thompson, who gave the note in question, as the price of the property, and made it payable to the husband of the said Cornelia, the present respondent. The note, as soon as it was executed, was handed by the husband to the wife, for her inspection, and by her approved and returned to her husband, who has ever since retained it, and now claims it as his own property. The wife died in a few weeks afterward, leaving only -the present plaintiffs, her brother and sisters, her heirs at law.

The question is, do this note and its avails belong to the surviving husband, or to the heirs at law of his wife ?

At common law, this note belongs to the husband; the money, if paid, would have been his, as soon as paid, and the note is payable to him, to whom by law, the money belonged. And if the note had been payable to her, it would have been the same. 1 Sw. Dig., 27. Cornwall v. Hoyt, 7 Conn. R., 420. Whittlesey v. McMahon, 10 Conn. R., 137. Ecc. Society v. Mather, 15 Conn. R., 587. 14 Conn. R., 99. It is claimed by these heirs, that the statutes of this state, of the years 1849, 1850, one or both of them, have changed the common law on this subject, and have given the equitable interest, at least, in this note, to the wife and her heirs. We do not think so.

• The statute of 1849 provides for, and secures the rights of the wife, to such personal estate as shall, during the coverture, accrue to her, by reason of any bequest or distribution, and the avails of it; but the present is the case of real estate, and so not within the enactments of that law.

There is more doubt, in the construction of the statute of 1850, but a majority of the court think, that this can not be so extended, beyond the obvious import of its language, as to embrace this case and affect the claim of the husband to this note. It enacts that, when “ the real estate of a married woman has been, or shall be, sold, and the price or avails thereof secured or invested in her name, or in the name of a trustee for her, or for her benefit, the same shall, in equity, be deemed to belong to her,” &c.

There can be no reasonable pretence, that the avails of this land of the wife, were either secured or invested in her name; on the contrary, with her full approbation and knowledge, the noté was taken in her husband’s name. She could have directed it differently, if she would, and have insisted on her newly acquired, or statute rights. Nor do we see, from the facts found, any evidence of an intention to constitute the husband a trustee for the wife, or that he should act as such. He received the note, in his character and capacity as husband, for his own use, and not for hers; this, we infer from the facts, and this may be said to be the legal presumption. Afterward, without the knowledge or concurrence of the husband, the payer of the note offered to pay it to the wife, and she refused the offer, and requested that it might lie, until she should purchase her furniture. But this act or offer of thé maker of the note, without the privity of the husband, could not change the character of the note, nor the right of the husband to it; nor could anything, said by her at that time, have that effect.

But we believe that there is another objection to a recovery by these plaintiffs. They are the heirs at law of the deceased wife, and sue here, only in that capacity. The property in dispute is personal property, and, as such, did not descend to these heirs, and can be claimed by them only by distribution, under an administration upon the estate of the deceased. There may be creditors, having claims of payment against this estate, and therefore, an administrator should have been appointed, who could have asserted the rights of the wife, against her surviving husband, for the benefit of her creditors and heirs.

For the reasons we have suggested, this bill must be dismissed.

In this opinion the other judges concurred.

Bill dismissed.