Connor v. Robertson

5 Del. 201

• Court: Supreme Court of Delaware
• Decided: June 5, 1849
• Status: Published

Opinion

By the Court:—

Johns, Chancellor:

The case stated presents for our consideration the question which plaintiff has the legal right and remedy.

It is apparent the amendment by consent, substituting the administrator of J. P. T. Vickers, deceased, has introduced into that suit a legal party; and the State óf Delaware, suing for the use of Mary L. Vickers, &c., is equally so. The parties being legal, it is only necessary to ascertain which has the legal cause of action, for both cannot be entitled. The demand of each is for the distributive share of the personal estate of a deceased brother of Mary’s, which accrued to her in the life time of her husband, and remained unpaid and not collected or reduced into, possession by the husband during the coverture. The wife having survived, claims in her own right; the administrator of the deceased husband sues to collect for the use of an assignee, equally 'entitled, the State of Delaware for the use of the surviving wife. The right of the wife surviving is legal, that of the assignee of the deceased husband in his life time only equitable ; not being under seal, nor executed as prescribed by act of assembly, it conferred no right of action in name of suing assignee in life time of the husband. During the life of the husband, and while the marital rights of the husband existed, the equitable assignee might have availed himself of the husband’s name, in right of the wife, to reduce the chose in action into possession ; but by the death of the husband and survivorship of the wife, his right and remedy have ceased to exist. The surviving wife is again sui juris, and legally as well as equitably entitled. The equitable assignment transferred no legal right, and therefore, none exists capable of constituting a legal cause of action in a legal suit. This being so, it must result as a necessary consequence, that the administrator of N. P. F. Vickers, deceased, cannot recover in the suit he has instituted.

In the second case, in which the State of Delaware is plaintiff, for the use of Mary L. Vickers, one of the heirs-at-law of N. it. Neal, deceased, the court consider the plaintiff in that action entitled to recover the money for which it has been brought, for the use of Mary L. Vickers, she having survived her husband.