Brown v. Bokee

53 Md. 155, 1880 Md. LEXIS 16

Opinion

Miller, J.,

delivered tbe opinion of the Court.

Mrs. Mary E. Hamill died intestate and without issue ■on the 13th of November, 1877, leaving her husband, Alexander Hamill, surviving her, and on the 16th of May, 1878, he also died intestate. Letters of administration were then granted upon the estates of each, the appellants being the administrators of the husband, and the appellee the administrator of the wife. • At the time of her death Mrs. Hamill owned in her own right five $1000 United States five-twenty coupon bonds, and $1100 of what is termed Baltimore City Stock. On the 28th of February, 1879,. the administrator of the wife brought an action of trover against the appellants for the ■conversion of these bonds and this stock. The plea was not guilty, and the case was tried before the Court without the intervention of a jury.

By the Code, Art. 45, sec. 2, the “ personal property” •of the wife in case she dies intestate and leaving no children, is vested in the husband absolutely, but by Art. 93, sec. 32, it is provided: “If the intestate be a married woman, it shall not he necessary for her husband to take out administration, but all her choses in action shall devolve on her husband, in the same manner as if he had taken out such administration; Provided, that if he shall not in his life-time reduce the said choses in action into possession, or'obtained judgment .thereon, the said ■choses in action shall devolve on her representatives, and administration may be granted accordingly.” It is not necessary to notice the addition to this section by the Act of 1818, ch. 268, because it has no bearing upon the present case. These two sections of the Code were construed in the case of Stockett vs. Bird, 18 Md., 484, and it was there decided they were both operative, and that the latter merely created an exception to the general provisions of the former. In the case now before us there are two main questions which we shall consider in their order.

1st. Are these bonds and stock dioses in action within the contemplation of the section of the Code above referred to ?

2nd. If they are dioses in action did the husband in his-life-time, and after the death of his wife, reduce them into his possession ?

1st. As to the city stock but little need be said. TheOity of Baltimore negotiated loans, and issued to the-lenders certificates acknowledging its indebtedness to them respectively for the several amounts borrowed, to be paid at a fixed future day, with interest at a fixed rate payable quarterly or semi-annually. These certificates are transferable only at the Mayor’s office in person or by attorney, and on delivery of the certificate to the transferee. At her death, Mrs. Hamill held and owned two of these certificates, one for $800, and the other for $300. Certificates thus evidencing the debts or obligations of a municipal corporation are unquestionably dioses in action. They fall within the strictest definition of those terms, have been so regarded by every text writer, and so adjudged by all the authorities in which the question has arisen.

It has been argued that the five-twenty bonds are notdioses in action because no suit upon them can be brought against the United States. But if they are not dioses in action what are they, and under what description of property or rights known to the law do they come ? It is clear that whatever other qualities they may have, they are not money or currency. They are widely different from legal tender notes. These latter are simply promises to pay on demand, hear no interest, were made to circulate as money, as they do in fact, and so far as Congress had power, were made a legal tender at their face value for all debts public and private, except duties on imports and interest on the public debt. But these bonds were authorized by a different law, subserved a different purpose, and in fact constitute part of the interest-bearing public debt, the interest on which is payable in coin. The substance of the obligation expressed on their face is that the United States are “ indebted to the bearer,” in the sum specified, redeemable, at the pleasure of the United States after five, and payable at twenty years from the 1st of July, 1865, with interest at six per cent, payable semi-annually, and they have interest coupons attached. Being payable to holder or hearer and having a long time to run, it has been decided they have become by the necessities of modern usage negotiable paper with all the protection that belongs to that class of obligations. Vermilye & Co. vs. Adams Express Co., 21 Wall., 138. We shall not stop to inquire whether, under the legislation of Congress establishing the Court of Claims and defining its jurisdiction, a suit could be brought in that Court against the United States for default in payment of these bonds at maturity, because we do not deem it material. The public debt of G-reat Britain is redeemable only at the pleasure of the Government, and holders of that debt can therefore never bring an action against the debtor to recover it, not only because of the immunity of the Government from suit, but because by the terms of the obligations themselves they are not payable at any definite time. Stock or money in “the funds,” as they are designated in the English authorities, is merely a right in the holder to receive certain annuities hy half-yearly dividends as they become due, subject to the right of the Government to redeem such ’ annuities on payment of a stipulated sum; thus £100 three per cent, consolidated hank annuities, or three percent. “ consols ” as they are shortly termed, is a right to-receive three pounds per annum forever, subject to the right of the Government to redeem this annuity on payment of £100 sterling. Notwithstanding the absolute-inability of the creditor to sue for them, moneys invested in these public stocks or funds have uniformly been treated by the English Courts as dioses in action. In Williams on Ex’rs (7th Eng. Ed.) 846, and in Roper on Husband & Wife, 204, the learned authors include “ money in the funds,” as falling under the description of dioses in action-of the wife which survive to her in case the husband fails to reduce them into possession during coverture, and the authorities cited by these eminent text writers fully sustain the position. In Dundas vs. Duteus, 1 Ves., Jr., 196, a sum of £1000 in the three per cents, was declared by Lord Eldon to be a chose in action, and the same thing-was said by the Master of the Rolls, Sir Wm. Grant, in Scawen vs. Blunt, 7 Ves., 294, where the money in the-funds was held to survive to the wife. In Wildman vs. Wildman, 9 Ves., 174, a large sum in the three per cent, consolidated annuities was transferred to the name of a. married woman as next of kin of an intestate, and this upon the death of the husband without having done any act with reference to it, except signing partial transfers of' it by her, was held to survive to the wife. It is unnecessary to cite other authorities upon this point. If, then, the rights belonging to holders of the public debt of Great. Britain, which is redeemable at the pleasure of the debtor, and where by no possibility can a right of action accrue to the creditor, are nevertheless dioses in action, it would seem afortiooñ that the bonds in question which are payable to bearer and at a fixed future day, which pass by delivery and have become in fact negotiable securities, must be so-regarded. The truth is that this species of property was. unknown to the common law. The public debt of England, as well as that of the United States, has been created in comparatively modern times, and when the Courts came to deal with shares, or rights, or investments in it, they necessarily classified them with dioses in addon as contra-distinguished from dioses in ¡possession which in ancient times consisted entirely of movable goods, visible and tangible in their nature. In this country no case has been cited, and we have found none, in which the question has directly arisen, hut in Hutchins vs. State Bank, 12 Metcalfe, 421, Chief Justice Shaw, in delivering the opinion of the Court, said: “A State bond or note, a certificate of a sum due from the State or United States, and ordinarily called ‘ stock,’ is a chose in action and an evidence of debt though no action lies for it.” It is true this was a dictum in the case hut it is the dictum of an able and distinguished jurist speaking for a Court of high authority. We adopt it and pronounce these bonds as well as the certificates of city stock dioses in action of the wife.

2nd. The question whether the surviving husband during his life, and after the death of his wife, reduced them into his possession is equally free from difficulty. When Mrs. Hamill died the bonds were on special deposit in the Safe Deposit Company, where they had remained so on deposit since the 15th of December, 1871. The receipt given by the treasurer of that company on the last mentioned day, shows that Mrs. Hamill had deposited the bonds for safe-keeping “ through Alex. Hamill and subject to order of either.” At her death this receipt and the certificates for the city stock, were in the possession of her brother Mr. Bokee, and he, after her death, on the 9th of April, 1878, delivered them to her surviving husband, (taking his receipt therefor) who was then sick and infirm and remained unable to leave his house up to the time of his death. After the 9th of April, 1878, his son James, at his request, applied to Mr. Robb,’ the City Register, to transfer the stock from the name of his wife to his own name, hut Mr. Robh declined to do this unless Mr. Hamill came to the office in person for that purpose. The son also at the request of his father, went to the Safe Deposit Company and there presented to Mr. Wisong, its treasurer, the receipt for the bonds, and requested delivery of them to him, and said he would surrender the receipt therefor, hut Wisong declined so to do, unless the father should appear in person, or execute a power of attorney to withdraw the bonds. Wisong then went to the residence of Mr. Hamill and was asked to go up to his chamber and receive a proper authority to deliver the bonds to hi°s son, which he declined to do, and in a few days thereafter Mr. Hamill, who was then very infirm, died. At that time he was paralyzed but down to the time of his death was of sound mind, and might have made his mark at any time if he was so inclined. On the second of June, 1878, after his death the bonds were delivered by the Company to the defendants, as his administrators, on the return of the receipt. After the death of his wife none of the coupons on the bonds were ever cut off and delivered to Mr. Hamill during his life. '

We do not mean to say what ought to have been done by the husband, or what acts on his part would have been sufficient to effect a reduction of these dioses in action into his possession, but simply to decide that what was done in this case was wholly insufficient for that purpose. He never obtained manual possession of the bonds, (though we do not mean to say that would have been enough,) nor did he effect a transfer of the city stock into his own name. There is nothing to show he was not able at some time after the death of his wife, and before the 9th of April, 1878, to go in person to the Company’s office, obtain the bonds and assign them for a valuable consideration, or sell them, or exchange them for other securities, and also to the Mayor’s office and have the transfer of the city stock to himself duly made. It may have been, and doubtless was, his misfortune that he became unable to do so after the 9th of April, 1878, or such inability may have continued from his wife’s death, hut this will not justify the Court in relaxing the law for his benefit, or that of his representatives, and in depriving the wife’s next of kin of the benefit which the law gives them in case no acts have been done sufficient to defeat the survivorship. The authorities are all one way on this subject, and it is clearly settled that a mere intention to reduce a wife’s dioses in action into possession will not he sufficient; the acts to effect that purpose must he such as to change the property in them, or, in other words, must he something to devest the wife’s property and to make that of the husband absolute. 1 Bright on Husband and Wife, 48 ; Roper on Husband and Wife, 208; 1 Williams on Ex’rs, 857. There must he some decisive and unequivocal act on the part of the husband, not only showing an intention to devest the property of the wife hut which does in fact defeat such property. 3 Redfield on Wills, 189. The cases referred to by these writers, show that the mere pledge of his wife’s chose in action by the husband, as security for his own debt, or the receipt by him of interest thereon, or even a part of the principal, will not defeat her right of suvivorship. Here no act whatever was done to devest the title of the wife, or her representatives. Some reliance was placed upon the terms in the receipt given by the Safe Deposit Company, to the effect that the bonds were subject to the order of “ either ” the wife or the husband, hut it was admitted the bonds belonged to her and that she owned them in “her own right” when the deposit was made, and it is clear she did not part with the legal dominion and control over them by accepting a receipt in these terms. Murray vs. Cannon, 41 Md., 466. The custody of them by the Company, after her death, was a continuance of the custody and deposit made by the wife, and was never actually, or legally, or constructively, terminated by the husband during his life.

(Decided 10th March, 1880.]

3rd. It was further argued that trover will not lie for the certificates of city stock, and that no recovery should he had on account thereof, because the stock still stands in the name of the wife on the hooks of the City Register and her administrator now owns it, if it does not belong to the husband’s representatives. But by the terms of the certificates themselves, the stock can only he transferred at the Mayor’s office upon their return and delivery,, and the defendants have refused to deliver them up on demand of the plaintiff. As was said in the case of Hutchins vs. State Bank, before referred to, a certificate of stock is a muniment of title of the same nature with the note or 'bond'of a private person, ordinarily called a chose in action, and it has heen decided hy this Court that trover may he maintained for the conversion of a promissory note or other chose in action, as well as for other personal property. Winner vs. Penniman, 35 Md., 163. Besides judgment in this action against the defendants, and payment of it will vest in them the legal title to this stock as well as to the bonds. We, therefore, see no error in allowing a recovery on account of these certificates. .

It follows there was no error in the rulings of the Court below upon the several prayers, and the judgment must he affirmed.

Judgment affirmed, with costs.